Fifth Circuit continues to take Second Amendment seriously
In United States v. Everist, 368 F.3d 517 (5th Cir. 2004), the issue was a challenge to the Federal bar on felons in possession. The Circuit, citing its earlier ruling in Emerson, upheld the bar, noting:
The Second Amendment right is subject to "limited narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Id . at 261. It is not inconsistent with the Second Amendment to limit the ability of convicted felons to keep and possess firearms.
Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens. See id. (noting that "it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms"). Accordingly, § 922(g)(1) represents a limited and narrowly tailored exception to the freedom to possess firearms, reasonable in its purposes and consistent with the right to bear arms protected under the Second Amendment.*fn1 Everist's constitutional challenge to § 922(g)(1) fails.*fn2
*fn1 We need not decide whether the Second Amendment's boundaries are properly defined through strict scrutiny analysis, though it remains certain that the federal government may not restrain the freedom to bear arms based on mere whimsy or convenience. See Emerson , 270 F.3d at 261.
To my thinking, jurisprudence like this is critical to establishing the Second Amendment as a viable legal force. It cuts off the argument that "well, if we do recognize a right to arms we'll have to let convicted bank robbers pack, or allow heat-seeking missiles and thermonuclear devices." Which is roughly equivalent to "If we recognize freedom of speech and press we'll have to protect blackmail (which is no more than accepting money for not speaking), extortion notes, and death threats to the president." (Though I once did have a law prof. who made an interesting argument that the last is first amendment protected.).
In future posts I intend to develop this further, but right now I've got to stop for a while and practice law.
It concerns me that moore and moore misdemeanors are finding reclassification as felonies which then permanently bar gun ownership, possession and use.
Posted by: tommygun9mm at April 7, 2005 06:58 AM
If only every felony were one that "has shown manifest disregard for the rights of others". There are way too many victimless crimes in our society today.
Posted by: Keith at April 7, 2005 09:56 AM
"And that the said Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are PEACEABLE citizens, from keeping their own arms.... "
Keith, I agree there are too many "crimes" out there.
Posted by: Christopher A. George at April 7, 2005 01:05 PM