Louisiana trial court strikes down State felon-in-possession
Discussion here. Louisiana voters recently amended their constitution to expressly State that the right to arms is individual and fundamental, and all review shall be at the strict scrutiny level. Applying that, the judge held that a ban on all felons, violent and nonviolent, recently and ancient, failed the test and invalidated the ban on its face (i.e., as to everyone, including violent felons).
I'm on an email list where Prof. O'Shea noted that this sort of result is reflection of judicial hostility to the right to arms. Courts announce they are applying intermediate scrutiny or a variant, and we wind up with rulings like Kachalsky and Woollard, where the court in fact applies rational basis "laws that are not psychotic pass muster." (I don't think I have seen any other intermediate scrutiny cases announce that the court must defer to the legislature while applying it). So voters decide that the only way to get courts to take the right seriously is to mandate the standard of review... and then we get these results.
If a felon can't be trusted with a firearm why are they not still in jail? Does anyone really think they won't have access to firearms out on the street?
Felon in possession laws are just as stupid and useless as gun free zone laws.
Posted by: Alan at March 22, 2013 08:21 AM
I have no problem with a requirement that a ban on keeping and bearing arms be based on the particulars of a given person and their history instead of a blanket assumption that any felony mandates a lifetime ban. Too many "paper felonies" as it is.
Posted by: James at March 22, 2013 08:28 AM
I agree with Alan and James. If we can not trust a person to keep a firearm, vote, or be within a thousand feet of children, then he should still be in prison. Prison should be used for one purpose and one purpose only, to segregate those who clearly have no regard for their fellow man. If, after a time, we believe that a particular individual might have changed, we can let them out on supervised release for a period of time. Once we have fully reintegrated them into society and they have proven themselves to be trustworthy again, then they should have all rights restored. How individuals treat them (refusing to employ them because of their record, etc) is another story, but how are government views them (outside of getting a government clearance, maybe) should be as if the person has committed no crime.
Posted by: Ken in NH at March 22, 2013 09:09 AM
We got the same kind of hostility here in Colorado in the 80's when we passed our castle doctrine law -- right to self defense in the home. I think it was one of the first in the nation.
First thing some idiot judge did was apply it to a crazy guy who shot neighbors in his front yard who came to talk to him about a party going on. Shot them when they were up to 20 or 30 feet away and running in the opposite direction, though no one had assaulted him and the mere sight of the gun ended the confrontation, which by all reports was not violent. Not against people defending themselves, of course, but when it's neighbors you know and they are heading out your need to use lethal force is over and it's time to look at civil remedies.
A few months later, while the protests the judge had intentionally created about him getting off scott free were ongoing, he gunned down his wife (who had left the violent bum) and one of her male coworkers in a parking lot.
I don't remember particulars of the case, but it was pretty clear the judge was trying to sour the view of the law as being ridiculously permissive. (thankfully we've kept it in place,and in years since courts maybe moved a bit too far the other way, but it's a good law).
Posted by: Stephen at March 22, 2013 01:11 PM
...We don't imprison people because they are " untrustworthy", nor do we free them when they are trustworthy. We imprison folks who have been convicted of felonies. They get out when they have finished their sentence. It has no bearing on trustworthyness, nor could that determination be made. Whom do you guys that think like that want to make the 'trustorthy-or not' determination ?
Posted by: Dave D. at March 22, 2013 02:38 PM
There is not one of us who has not committed a felony this date. Not one, unless of course you're scheduled to wake up from a 24 hour coma one minute after midnight.
Prohibiting the exercise of a RIGHT because you're a "felon" is part and parcel of tyranny.
Now if you're convicting of a violent crime, was it a "crime of violence" or just you using violence to protect your rights? And is there any indication that you are unable to control your urge to violence?
Because God knows if we stamp out the ability to do violence, then the tyrants will have won.
Risk is one of the responsibilities assumed when living as free men (feminists: in the generic sense of the word).
If you're not willing to assume risk with and responsibility for your actions, then you aren't free in the first place.
Posted by: CarlS at March 22, 2013 06:34 PM
So what we end up with is a guy that kited a check for $1000 back in 1972 and served his time is prohibited from possession and is told his life is now forever worth less than his neighbors. He is prohibited from using effective tools to defend himself and his family.
In what world is that just?
If you want to make the argument that certain people should have guns then I'm prepared to contend that those same people should not have
cars, gasoline, knives, shovels, axes or fertilizer and I think that I can make a convincing case that the statistics indicate that they should have their hands and feet amputated as well.
You don't get to use the gun to make a person some kind of leper. Either they are violent and should not have access to all manner of dangerous things or they are not violent and prohibiting them from self-defense is a violation of their basic civil rights.
Posted by: Knitebane at March 23, 2013 12:32 AM
I've long said to liberals that if you want to make committing a felony cause a lifetime loss of ALL Constitutionally protected rights, I might be for it. But that means ALL of 'em - no right to a speedy trial, no right to counsel, no privilege against self incrimination, no freedom from cruel or unusual punishment, no right to free speech, no right to petition for redress, etc. Go that far and I'll agree the right to keep and bear arms can be forfeited too.
But liberals NEVER want lifetime forfeitures of any but the right to vote and to bear arms. And how many felons go to prison for voting? (If all the felons who had voted had been put in prison for it, Obama probably wouldn't have won either election.)
So since the felon in possession laws are just another attack on gun owners, I'm with the folks in Louisiana - out with 'em. If you're fit to walk among us then you're fit to own a gun.
Posted by: wrangler5 at March 23, 2013 01:19 AM
Nice job latching on to one word and removing all context. The trustworthiness I was speaking about was in the context of being a part of our society. If you have committed a crime so heinous that we can no longer trust you to have a gun, then I would also argue that we can not trust you to live peaceably in anybody's neighborhood. Therefore you should be in prison. How does one re-earn the trust of society? That is a fair question. At the moment, the rule is that if you remain segregated (i.e. in prison) for some arbitrary length of time then you automatically regain some trust. At least trust enough to live next to my family, but not enough to vote (depending on the state) or legally own guns. I would not want that person living next to me.
Posted by: Ken in NH at March 23, 2013 09:19 AM
....Well, here's the "context", Ken. Trust is extraneous to the fact of felony anything. Your trust or distrust of anyone has absolutely nothing to do with their imprisonment or release from same. Ditto whether they should or should not be in prison. A figment of your imagination. You don't get a say in that. It's already been decided, and the legal system doesn't weigh 'trust' in the equation. Your use of 'trust' as a measure is false and misleading.
...Felons don't " regain some trust " of society. Society doesn't speak with one voice, nor is it cohesive or allknowing. Society is not some fictitious entity that speaks with a single voice.You may trust 'em, and I may never trust 'em. And you wouldn't be that voice if it did. Nor would I.
....Felons aren't felons because they somehow lost your trust. They are felons because they got caught. They are released felons because they served their time, or escaped.
Posted by: Dave D. at March 23, 2013 11:46 AM
The federal felon-in-posession law dates from the Thirties, as I recall. It had very little to do with a felon's trustworthiness. Rather it was proposed as a way for police to have a reason to arrest gangsters that were in possession of firearms, since many of these same gangsters had felony convictions in their past.
I believe that up until that time there was no federal prohibition against felons having firearms, nor was there much concern about this in the common law.
This could be a good area for some historical research.
Posted by: Andy Frechtling at March 23, 2013 04:08 PM
I have been in trouble with the law and have been to Prison. LIFE is to damn important and I want to live and enjoy it. I've been a law abiding citizen now since 1996 which is when I last got in trouble. I have a family now, good job, and now a home. I work HARD for it and am PROUD of what I have. Thou, I live in a city that is short on funds, so that means our police are short staffed as well. I can say this much, I'd rather deal with a jury of 12 peers then to have me or someone in my family DEAD or HURT because of some idiot trying to rob or hurt my family. Simply as that. Yes, I agree that there should not be a Blanket law on Ex-Felons as some of us can beat the statistics! Sometimes we don't always hear about the good stories that come out of the bad that happens. I was young foolish and immature. But, I'm a tax-paying, law-abiding citizen now and would give anything to have my rights back to own a firearm again for protection.
Posted by: Todd at March 28, 2013 09:26 PM