Supreme Court ruling on restoration of rights
Right here. I flew back east for some Parker matters, and am too tired to say a lot more. Basically, both GCA and a federal sentencing enhancement law say that "felony" includes violations that states expressly classify as "misdemeanors," but which are punishable by more than two years imprisonment, and that "felony" does not include a conviction that has been set aside or for which civil rights have been restored.
Defendant here got caught as a felon in possession, had several of those 3 year "misdemeanors," and got maxed out. He argued that since you don't lose civil rights for a "misdemeanor," that shouldn't count as a prior. Interesting argument, but it lost 9-0.
On the side, the Court agrees that, as to what restoration of civil rights means, "courts have held, and petitioner agrees, that the civil rights relevant under the above-quoted provision are the rights to vote, hold office, and serve on a jury. "
So, if the SCOTUS was internally self-consistent, the 19 states where felons can serve on juries, the 20+ states which allow or allowed felons to vote during their parole -- 4 of which allow or allowed felons to vote while in prison -- and 6 states which have no law against convicted felons running for office while serving their sentence... would have no constitutional leg to stand on for any enforcement of the felony portion of the NICS system.
The "adjucated as a mental defective" would probably go down the bit bucket, too, at least unless I'm missing some fine distinguishing mark between the "felon" and "mental defective" description.
I mean, I understand that this is obviously and completely a mental exercise -- if SCOTUS were internally self-consistent, we'd expect pigs to fly and hell to be frozen over next -- but it is an interesting exercise.
Posted by: gattsuru at December 4, 2007 09:48 PM
I don't really have an issue with The Court's reasoning in this case. While I don't think that felon-in-possession is something that's within any of Congress' enumerated powers, I think it's tough to argue that "restored" applies to something that wasn't taken away.
Posted by: Sebastian at December 4, 2007 09:55 PM
It's rather hard to argue that any form of sales avoid substantially affecting interstate commerce these days. United States v. Lopez may have been fairly "pro-gun" on the matter, but Wickard v. Filburn and the restaurant desegregation cases, made under duress as they were, remain fairly binding precedent.
Sebastian, I suggest you look a little harder at the laws in question. Wisconsin's state laws allow any individual who has served their prison sentence, parole, and/or probation to automatically regain the right to vote, and at least in some places would be able to serve on a jury (although I'd hate to see the prosecutor that would allow it).
It seems a bit strange to me to punish three demeanors and firearms ownership with 150% of the punishment that a felony, two demeanors, and firearms ownership would have gotten him. I'll leave it to the lawyers to figure out the exact name for the problem.
Posted by: gattsuru at December 4, 2007 10:36 PM
I have always been of the opinion that when all time is served, all probation or parole satisfied that all civil rights are to be restored. If they are not to be restored then we should have the courage to admit that every punishment is a life sentence and the punishment will never stop until the person dies.
Of course, we don't say that too loudly because too many people would put up much more strenuous battles for themselves, both physically and legally. If a person can't be trusted with all the rights of a free man, then he either should not be free or he should be waging war against those that deny him.
As a moral or intellectual issue there can be no argument.
Posted by: straightarrow at December 5, 2007 01:02 AM
All, I can say is Amen Straightarrow
Posted by: Gregg at December 5, 2007 03:29 AM
Bill Clinton repaired the law
after the Lopez Decision.
He is / was such an ass why am I not surprised.
Gun Free School Zones Act —as reenacted
Originally enacted in 1990
(P.L. 101-647, Sec. 1702(b)(1))
Overturned by the U.S. Supreme Court, April 26, 1995
Re: Federalism; Congress exceeded its authority under Commerce Clause.
(U.S. v. Lopez, 514 US 549)
Reenacted by Congress, Sep. 30, 1996
Posted by: Marcus at December 5, 2007 03:55 AM
Now the Federal courts will probably argue that a defendant must have "all" 3 of the key civil rights lost and then all three restored to satisfy 921 (a) (20). So if one just looses the say the right to vote and retains the other 2 rights then those 2 rights couldn't be restored if they were never lost. This logic would rely on the fact it is required to have all three key civil right restored.
Posted by: Paul at December 5, 2007 07:49 AM
I'm with straightarrow. Except prior offenses should be part of the calculation figuring sentancing for subsequent convictions.
Having firearms disabilities restored means restored. Makes me think now, what is the status of the Lautenberg problem ,where a mere accusation is enough to lose firearms rights? Is that still in play?
Posted by: The Mechanic at December 5, 2007 02:43 PM