A New Amendment? I Think Not!

[ConstitutionCowboy]

I gleaned this from the NRA-ILA daily update. It is well written. Author Gregory D. Lee, a criminal justice consultant, only misses one thing: The answer to the dilemma he points out about what a positive and comprehensive decision from the Court in DC v. Heller will bring - not might, but will.

Many laws forbidding felons to keep and bear arms could fall, and he says this could pose a problem with convicted felons and the deranged out there now able to carry arms(as if they don't right now!). He suggests an amendment to the Constitution to allow for convicted felons and the mentally unstable to forfeit this right. But, for a person in the field he is in, I am amazed that he cannot see the real solution - the only constitutional solution that will not require an amendment to the Constitution: Keep violent felons who cannot be trusted with arms, and the adjudicated mentally deranged who cannot be trusted with arms locked up or institutionalized until they can be trusted out in society with arms.

I think maybe he needs to look a little deeper into this. He just might come to the same conclusion that is common knowledge to the rest of us here. We don't need to amend the Constitution when common sense applied to what the Constitution already has a solution for will solve the problem without stepping on anyone's rights.

Woody

 

[H088]

To be honest, it really depends on what the felon did, I think felons charged with certain none violent crimes have the right to fire-arms, but that right would be limited.

 

[GunTech]

Felons have been deprived of constitutional rights since the document was written. The Founders understood that people can be deprived of their rights as citizens - but only through due process of law.

See the fifth amendment:

nor be deprived of life, liberty, or property, without due process of law

A felon can be deprived of their gun rights (a liberty) by the courts, just as a felon can be deprived of their voting rights.

Heller does not mean that convicted criminals will automatically be given their gun rights.

This argument is a liberal dodge to convince people that a positive decision on Heller will mean blood in the streets. Nothing more.

 

[Solo Flyer]

But, for a person in the field he is in, I am amazed that he cannot see the real solution - the only constitutional solution that will not require an amendment to the Constitution: Keep violent felons who cannot be trusted with arms, and the adjudicated mentally deranged who cannot be trusted with arms locked up or institutionalized until they can be trusted out in society with arms.

I read the article this morning and could not agree with you more.
The very last thing we need is another new amendment.
Income tax(1913)Prohibition(1919)Presidential Term Limits(1951)are more than enough examples of continuing to distort the original document.
I would add Women's Suffrage(1920)but I may be a Solo Flyer on that.

 

[Noxx]

GT hit that one on the head before I could get to it, not much more to say on the subject.

 

[MiddleAgedKen]

Yep. As David Codrea so succinctly put it, anyone who cannot be trusted with a gun cannot be trusted without a custodian. That said, I'm sure there are a fair number of malum prohibitum felons out there who never should have lost their RKBA in the first place, let alone everyone who ran afoul of a vindictive ex-spouse and (hawk ptooey) Frank Lautenberg.

 

[cloudedice]

With regard to possession of firearms by felons, I think some would argue that a felon whom cannot be trusted with a gun, cannot be trusted to be released into public life. After all, what's to stop the violent felon from committing a violent crime against someone with a knife, baseball bat, tire iron, car, stick, or fists? If a GUN just a tool, why does it get special treatment?

In my opinion, with regard to non-violent felons, RKBA should NEVER been infringed so long as the person is freed from incarceration. They weren't convicted of being violent, or physically harming/threatening anyone, so why should they lose their right to protect themselves from those who ARE violent and have intentions of causing/threatening physical harm. I'm undecided about violent felons, but I'm confident that I'd support ALL felons RKBA if the justice system were to be reformed.

ETA: I'll admit to not RTFA. My post was in response to H088's comment.

 

[rocinante]

I have come to have a rash like reaction when I see the words "common sense" since it has been repeated ad nausea by the antis. I don't think even with the most pro 2A interpretation justification to keep guns away from felons and mentals will be much of a stretch.

 

[cloudedice]

For archival purposes, here's the article in question:

June 17, 2008
The Second Amendment: What a Difference a Comma Makes
Gregory D. Lee

The Supreme Court's upcoming decision in a Washington, D.C. handgun ban case could potentially nullify thousands of gun laws on the books. The case stems from a security guard who was denied a request to keep a firearm in his District residence for self-protection.

Washington D.C. Mayor Adrian Fenty recently said that the District's handgun ban "has saved many lives since 1976 and will continue to do so if allowed to remain in force." How does he measure that? The truth is that murder by handguns has gone up substantially in the District since the handgun ban was passed. I wonder how many honest people in the District were killed by thugs with guns because they were deprived of the ability to adequately defend themselves.

The Second Amendment to the U.S. Constitution reads in its entirety: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

What is it about "shall not" the anti-gun crowd doesn't understand? For years they have argued that the Second Amendment doesn't apply to individual gun ownership, when the comma between the words "free state" and "the right" clearly shows that the framers of the Constitution were masters of brevity and were addressing two different issues they obviously did not want tampered with. Some might not like what the amendment says, but it doesn't change the fact that it says it.

Let's suppose there is a constitutional amendment that reads: A well regulated free government health care system, being necessary to the health of the people, the right of women to have abortions on demand, shall not be infringed. Would the typical anti-gun advocate suddenly understand what "shall not" and "infringe" mean? Would conservative pro-gunners argue that abortions could be regulated, denied or restricted at every level of government?

In the worst case scenario for anti-gunners, the Supreme Court could negate all gun laws on the books because the Second Amendment is the gun law of the land. Keeping and bearing arms shall not be infringed. Gun laws infringe that right. Any law contrary to that is obviously unconstitutional. The amendment doesn't say the right of the people to keep and bear arms shall not be infringed except if you are a juvenile or a mental patient or live in the District of Columbia. It doesn't restrict convicted criminals from keeping and bearing arms either.

The ramifications of this decision could be enormous. "Keeping" and "bearing" arms are two different issues. Keeping arms would allow citizens to maintain a firearm in their residence, tent, vehicle, boat or other conveyance. Bearing arms could be interpreted as legally carrying firearms in public. Concealed weapon permits would be a thing of the past because they are designed by state governments to infringe residents from bearing firearms.

Should mentally deranged people, organized street gang members or convicted felons be allowed to carry concealed firearms? I don't think so. But they may suddenly regain that right. The Supreme Court could place restrictions on firearm ownership the same way it restricts free speech by excluding libel, slander and yelling fire in a crowded theater when there isn't one. But those restrictions came after decades of rulings handed down by the Court. It seems to me that the only constitutional way to restrict gun ownership is to have a separate amendment that specifies when a person loses his Second Amendment rights.

Even if all gun laws were declared unconstitutional, gun violence would probably not increase significantly because criminals have never followed gun laws, so why would they start now?

No matter where you stand on the issue, it will be exciting to see where the Justices stand on the literal interpretation of the Constitution.

Gregory D. Lee is a criminal justice consultant, author of three college textbooks and a syndicated columnist with North Star Writers Group. You can see his previous material here.

 

[mekender]

if a person is so dangerous that it should be illegal for them to possess guns, then they are too dangerous to be able to walk down the sidewalk...

 

[Picard]

Good point Guntech. You nailed it.

 

[everallm]

I'm sorry but Lee is being at best simplistic or as we used to say, what a load of old bollocks.

There is already ample law and understanding about limitations around constitutional rights.

The easiest is the classic "Freedom of speech" and maliciously calling "fire" in a crowded theater.

This is the sort of stuff I would expect to see from Brady......

 

[El Tejon]

Many laws forbidding felons to keep and bear arms could fall

O.K., this is enough. I've had all I can take with this nonsense about the NFA but this is where I draw the line.

The author is completely mistaken. Heller will make no such determination.

The NFA is not at issue. Federal or state disqualifications are not at issue.

If something is not at issue, the Court will not make a ruling upon it.

 

[Don't Tread On Me]

I think it is foolish to even entertain the idea that the Feds would ever jeopardize the law in regards to felons and firearms.

Given the track record of our Republic ....liberty has been on the decline, not the rise. Been some ups here and there, but they've been small and usually with restrictions or by regulation that essentially converts rights into privileges.

I'm not optimistic about this ruling. The best we can hope for is that they keep it extremely narrow and liberate D.C. ...those that think this is going to be positive in other areas are naive. Chances are, we're going to see a lot of gun control justified by the SCOTUS.

I hope I'm wrong.

 

[tmajors]

Martha Stewart is a felon...but I don't have a problem with her having guns...

Okay well maybe that's a bad example but only famous non-violent felon I could come up with off the top of my head.

 

[mljdeckard]

Incarcerating everyone who can't posess a firearm is a pipe-dream at best. You would be turning an already overloaded system into a lifetime penal colony. There is absolutely no way to know that just because someone has served their sentence, they are ready to carry a gun again. (Look at recidivism rates, most obviously aren't.) To say "Keep them locked up until they are ready" usually means a life sentence.

I have no problem with the felon prohibition. Those who have been convicted of a felony have lost their presumption of innocence through the due process of law, and therefore will have consequences for it.

I would entertain the idea of in-home posession and limiting the restriction to violent felons only.

 

[Zoogster]

Felons have been deprived of constitutional rights since the document was written. The Founders understood that people can be deprived of their rights as citizens - but only through due process of law.

See the fifth amendment:

nor be deprived of life, liberty, or property, without due process of law

A felon can be deprived of their gun rights (a liberty) by the courts, just as a felon can be deprived of their voting rights.

Voting was not a universal right given to all in the constitution. In fact until universal sufferage was passed only a segment of the population could legaly vote, predominantly men with property. Men that owned thier own property (which they would tend to actualy own then, not be in debt with long term mortgages) were seen as more stable and likely to be influenced only by thier own moral conscience. Those who were without were more likely to vote for whatever gave them any temporary gain, voting less from thier conscience.

We saw the many problems created from restrictions like that, and that is why universal suffrage was later passed. Howeve voting on endless legislation that would undermine the core principles of the republic was not something they felt was a permanent right granted to all citizens automaticly. That came later.

The 2nd in contrast was. They felt every single citizen had the right to keep and bear arms unquestionably.
Anyone arrested who was later released back into society gained all of thier rights, including the RKBA. Many current felonies were at the time merely worthy of a night in jail under the watch of the town sheriff. However even those few punished by years regained all rights upon release.
Those that were so serious they demonstrated a severe moraly lacking character in the perpetrator, or what we would call a "career criminal" today were often punished by hanging.

Hanging was done in public and even children saw hangings of bad men from a young age.

If the government has the authority to take away the 2nd after someone is released, and even for crimes people serve no actual jail time for, or a few days/probation, then the purpose of the 2nd is destroyed.
The 2nd is not so law abiding citizens can defend themselves from criminals, that was considered a pre existing right. The 2nd is so the people can defend themselves against the more organized and dangerous threat of governments, foriegn or domestic.

If a government can just declare someone unfit to possess that which is legaly possessed for the purpose of defending against said government, why would they not find something to charge anyone they felt might actualy take up arms against them? Seems like a rather logical approach to removing the RKBA from those likely to excercise it.

At the same time I personaly don't want violent bad men well armed out on the street.
There was a very good way to fix that in the past. The first was that such people were never glamorized. The average citizen had enough integrity that such individuals or lifestyles were scorned. People that chose to associate themselves with such lifestyles would justifiably be discriminated against (today the government often infringes on that ability of private citizens.)
If they did certain serious crimes, or were a career criminal then they were killed off.

Today we have movies, tv shows, video games, and music that glamorizes a lack of morals. I think the tolerance for such things shows a lack of integrity in society. At the same time I think the right to free speech prevails against any laws against such things, but it does not prevent logical discrimination of people that partake in such things. A man (or woman) is judged on who they are. A large part of who they are is what they believe and what they are willing to tolerate.
If they believe something we don't agree with then we have every right as private citizens to discriminate against them, only the government does not.

We can demand uninfringed 2nd amendment rights, but we must also demand morality in our fellow man.

 

[kevindsingleton]

Solo Flyer,

<Quote>I would add Women's Suffrage(1920)but I may be a Solo Flyer on that.</Quote>

+1

Most won't admit it, but it correlates, precisely.

 

[doobie]

I think the whole system needs to be reworked, is a person who is guilty of felonious tax fraud as dangerous as a murderer?

There are probably a lot of things that are felonies that would make one say, what?!?

 

[ilbob]

My suggestion would require a minor revamping of the current system but would involve felons losing many of their civil rights upon conviction, but regaining them when released from supervision.

Supervision would include probation, incarceration, and parole.

The answer would be to keep the the most violent felons on permanent parole even after being released.

If at some point they showed they had learned to behave themselves, the parole could be ended and they regain their rights.

 

[Zoogster]

The answer would be to keep the the most violent felons on permanent parole even after being released.

Which would be no different than removing all rights permanently in most cases.
Why even have the Bill of Rights if its effect is removed from anyone the government has a conflict with?

One of the biggest problems with parole/probation is that lengths of time that vhastly exceed what would be approperiate jail time can be given that remove rights for the duration.
A person given probation for a misdemeanor for example could have thier rights removed for several years of probation even though the jail time available for such an offense is less than a year.
No weapons for people on probation even for offenses not relating to violence is standard in many places.

It also encourages longer sentences for crimes than even the people feel is justified, because it is assumed a good portion of that sentence will be spent out of jail. Essentialy creating more felonies of even minor things (since a felony is defined federaly as any conviction that subjects someone to more than a year of incarceration) just to insure there is some jail time served and enough deterrent is present.

Probation and parole should be severely limited or removed, and sentences adjusted accordingly.

Keep in mind there is also competing entities now that have thier own motivations for increases in the prison population, and an increase in people incarcerated. It is now big business, and private prisons are springing up all over. Society used to have an incentive to focus only on serious crimes, and do all they could to lock up as few people as possible, meaning they focused on the worst.
If prisons become more affordable, or even profitable, then that deterent is gone. You want prisons to be a burden on society, otherwise there will be a lot more criminals created to fill profitable prison space.

 

[ilbob]

One of the biggest problems with parole/probation is that lengths of time that vhastly exceed what would be approperiate jail time can be given that remove rights for the duration.
A person given probation for a misdemeanor for example could have thier rights removed for several years of probation even though the jail time available for such an offense is less than a year.

I have not suggested that misdemeanor offenders have their rights removed at all.

In any case, I'd be willing to bet that given the choice, most offenders would choose 5 years on probation over 1 year in jail.

I am a fan of getting out of the prison business as much as possible. It has failed pretty miserably at anything other than keeping the worst offenders away from society for a limited time.

I would like to see a system where the proscribed penalties can be served through probation, parole, or incarceration, and the convict earns the right to progressively less supervision based on the convicts own behaviour. If it improves, he gets more freedom. If it does not improve, he gets no more freedom. If it gets worse, he gets less freedom.

I also would like to see a system where incarceration is reserved primarily for violent offenders, with a goal to reducing their potential for violence once released. the idea being they stay under very close supervision until they prove they can behave.

Non-violent offenders should be subject to electronic monitoring and severely restricted in where they are allowed to be.

 

[Zoogster]

I have not suggested that misdemeanor offenders have their rights removed at all.

You have, you just don't realize it. When parole or probation is standard then sentences are adjusted upwards to allow for more actual time spent in jail, and more time spent with authority over the individual afterwards.
The result is many offenses once misdemeanors are turned into felonies rather than misdemeanors to allow for that.

That is a big reason there is many petty felonies that would surprise you. Not because people really think people that do them should spend over a year in prison, but because it is known they won't and will spend it on probation or parole.

In any case, I'd be willing to bet that given the choice, most offenders would choose 5 years on probation over 1 year in jail.

Exactly why it is a tool that poses a danger to the liberties of our nation. People will happily sign over many years of thier rights rather than be held accountable, get it over and done with and rejoin society as a free man.
Society encourages it because it is easier and cheaper to have 500 people on many years of probation than to incarcerate 5 for a year.

That gets a good segment of society used to the idea that rights can come and go, and don't even necessarily apply to people living and working within society. That in my opinion is dangerous to liberty.

 

[ilbob]

I have not suggested that misdemeanor offenders have their rights removed at all.

You have, you just don't realize it. When parole or probation is standard then sentences are adjusted upwards to allow for more actual time spent in jail, and more time spent with authority over the individual afterwards.
The result is many offenses once misdemeanors are turned into felonies rather than misdemeanors to allow for that.

I don't see how that is possible short of the legislature changing the law to make it that way. It doesn't just happen.

I am not a big fan of making everything a felony just because the courts refuse to incarcerate those who actually need it. The legislature needs to show some spine in this area. Changing the law so that a certain crime results in X amount of supervision, as opposed to X amount of incarceration with the chance that the convict can earn his way out of the most restrictive situation by good behavior gives the convict a serious incentive to behave.

 

[KyJim]

The Kentucky Supreme Court recently faced this very question as it applies to the Kentucky State Constitution. It was a split court with the majority ruling that felons could be deprived of this right. There is a vigorous dissent. It delves into common law quite a bit and I would commend it to anyone seriously interested in this question.

This is a VERY LONG link to a pdf file.

http://162.114.92.72/Opinions/2004-...08+2309+2386+2387+&hc=46&req=second+amendment