How Can You Lose Your Second Amendment Rights?


Last week the U.S. Court of Appeals for the 7th Circuit cast doubt on the constitutionality of a 1996 federal law that bars anyone convicted of a misdemeanor involving domestic violence from owning a gun for the rest of his life. Other courts, including the 10th Circuit, have concluded that the law is consistent with D.C. v. Heller, the 2008 case in which the Supreme Court declared that the Second Amendment protects an individual right to arms. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment," Justice Antonin Scalia wrote for the majority in Heller, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." But as the 7th Circuit noted in a case involving a man who was caught with a shotgun a year after he was convicted of domestic battery, Heller did not address the constitutionality of taking gun rights away from people convicted of misdemeanors. To justify that policy, the appeals court concluded, the government must do more than assert its constitutionality. Since the shotgun in this case was used for hunting (as opposed to self-defense in the home, the issue at the center of Heller), and since the challenged restriction applies only to people convicted of certain crimes (as opposed to all citizens, as in Heller), the 7th Circuit decided that "intermediate scrutiny" is the appropriate standard. Accordingly, it sent the case back to the trial court for consideration of whether "the challenged law is substantially related to an important governmental interest."

CBS correspondent (and Reason contributor) Declan McCullagh notes that the law at issue in this case is not the only conviction-related restriction on Second Amendment freedoms that can reasonably be challenged now that the Supreme Court has recognized gun possession as a fundamental, pre-existing right guaranteed by the Constitution. He cites a recent Harvard Journal of Law & Public Policy article—titled "Why Can't Martha Stewart Have a Gun?"—that questions the justification for denying nonviolent felons the right to arms. "In an age when Americans can be non-violent felons for possession of a short lobster or sharing MP3 files," McCullagh asks, "is a lifetime ban constitutional?" Although Heller suggests the general ban on gun possession by felons is constitutional, it does not actually uphold that policy, which was not at issue in the case. So it's conceivable the Court will at some point ask whether the Second Amendment allows the government to permanently deprive tax evaders, pot growers, and online casino operators of their right to arms.

The 7th Circuit's ruling is here (PDF).

NEXT: Is There No Political Problem That a Powerless Independent Commission Cannot Solve?

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  1. Americans can be non-violent felons for possession of a short lobster

    That’s just the marginal increase in the odds that lobster girl is unarmed that I needed to hear.


  2. Well, bluntly, we’ve already lost our Second Amendment Rights. What we’re trying to save now are qualified permissions.

    1. I’m not so sure. I get pulled over in Arizona by the highway patrol because the lights on my 4×4 are covered in mud, and my gun lies right there on the dashboard in plain sight. There are no problems, no questions, no words exchanged regarding the gun. None whatsoever. I don’t feel much of a problem here. I have more of problem getting pulled over for muddy lights.

      1. I feel the sudden urge to move from Illinois to Arizona based on that comment.

        1. Don’t. In many other respects, they act like the Germans conquered the US in WW II.

          1. Citation needed? If you mean Sheriff Joe Arpaio, well from what I hear I agree but personally I have no interaction with the Sheriff’s department or Deputies.

            1. Sheriff Joe’s tactics are Gestapo-like, but they’re way over hyped by certain people. He’s on his way out, anyways. The public at large here in the Valley is tired of the showboating and the disregard for the law (he converted a jail into an animal shelter, for God’s sake!). If it’s that big of a deal for you, there’s always Yavapai county (Flagstaff) and Mohave county (Tucson).

              I’ll be the first to say that we are very 2nd Amendment friendly here, but we do have problems with certain county attorneys prosecuting people for victimless crimes. Again, this is mostly in Maricopa county.

              Overall, we’re pretty libertarian here (with the exception of Joe).

              1. Tucson is in Pima County. Mohave County is in the opposite corner of the state, almost.

                I only remember that because I lived there briefly years ago.

      2. I fear that one day, the will take away one’s gun rights based solely on petty TRAFFIC TICKETS! Even PARKING CITATIONS!

        1. Where’d you hear that? I’d like to research it.

          1. Don’t laugh, in Chicago (and i’m sure elsewhere) you can have your driving licence suspended for too many parking tickets.
            Nothing like a little government extortion.

  3. Maybe some day in a far away land, the fact that I got busted/ratted out for selling E won’t take away my constituaional rights.


  4. How Can You Lose Your Second Amendment Rights?

    The commerce clause, obviously.

    1. Yeah, states and local governments would never defile the 2nd Amendment (McDonald v. City of Chicago).

      1. Never!!

        Here’s a screwed up thing. NYC is pretty much anti-self defense. You can be arrested for carrying a pocket knife. Forget about a gun. So, if someone gets stabby on the subway, their new thing is to lock all the doors on the train (the ones in between cars) so no one can escape thus containing the criminal in one car, along with every helpless by law person in that car. So the city takes every measure to make sure you are disarmed, have no problem locking you in a subway car when someone (this time, maybe plural next) decides to kill.

        1. That’s pretty f*cked up…

  5. Really, you cannot have your rights taken away from you. You can only have a situation where the government refuses to honor your rights. You always have the right to bear arms, it’s just whether or not Uncle Sam will let you exercise said right.

    1. Well put. There is always the ability to contract your rights away. A contract is something that creates, modifies, or destroys a right. I have the right to my Liberty, but if I contract to paint your house next Tuesday, I’ve just contracted a certain part of my Liberty away next Tuesday. Wednesday’s another matter.

      1. You could paint my house.

    2. Bullshit. A right is retained by individuals. It is not in the government’s discretion to allow people to exercise rights.

  6. There have been non-violent felonies since the beginning of the Republic. Bribery, counterfeiting, embezzlement, fraud, etc. I don’t see how the exclusion of felons from gun rights is suddenly unconstitutional now.

    1. Tulpa, I think the point is that previous to Heller, there was not a clear decision that gun ownership was an individual right–the counterargument was that bearing arms was only a right for members of a militia. Now that the confusion is cleared up, and that gun ownership has been established as a right each individual enjoys under the Constitution, the question of under what circumstances that right can be denied becomes salient.

      1. State and local laws have prohibited firearm ownership by felons for a much longer time. And the ruling that the 2nd addresses an individual right is not a novel idea, it was pretty much the common sense position until the 20th century.

      2. Also, don’t lose sight of the fact that a convicted felon being prohibited from possessing a firearm is not a general ban, it is an instance of a specific individual losing their rights after conviction of a crime through due process of law – evidence, witnesses, etc.

    2. I don’t see how the exclusion of felons from gun rights is suddenly unconstitutional now.

      FWIW,there was no exclusion of felons from their gun rights under Federal law until 1968.Well after that, it was relatively easy to have one’s rights restored after serving a full sentence.

      1. You might want to ask Thomas Bean about that. That was a case where the Court decided that justice delayed indefinitely was not a problem.

  7. nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill. .

    So let me get this straight. D.C. v. Heller is the first big case that finds that there is a constitutional right to bear arms (way to go genious’s.) But before Scalia or the court has found the right to bear arms they have found exception to a rule that they only recently granted us. You cannot have your right to bear arms be limited unless the court finds that you have a right that can be so such limited.

    You now have this new significant court cases which with you can make a good faith argument that the prior court didn’t properly balance the fundamental right to bear arms that it took these lazy mother fuckers over 200 years to get to.

    Anyway, I went to go look at the cases that Scalia referred to. There are no cases cited.

    1. There was U.S. v. Miller in 1937, but until the GCA of 1968, there was never a big issue about gun ownership and thus, not a lot of court attention to it. The gun control crowd, like Justice McReynolds took absence of evidence to mean evidence of absence (i.e. lack of a right).

  8. longstanding prohibitions on the possession of firearms by felons and the mentally ill

    As I stated above the Federal restrictions on arms bearing by status date to the GCA of 1968.Not what I’d call “longstanding” in terms of law.

    1. From what I’ve read I think SIV is right here.

  9. Please, America will never be disarmed. Who is going to come your house and say, “hand over the gun, Dan.” The Sheriff? The local
    Police? the State Police? the National Guard? The Army??? And where will they start, Wayne LaPierre’s house? Please.

    1. Well, what they do is lock you up if they find you have one, like in pre-Heller DC or current day Chicago. You can’t pretend there are not places with significant moves towards disarming their citizens, and that there are not people who would love to see those areas spread. It’s a good idea to fight them now even if immediate total disarming is not looming, because there are people who are working to make it more immediate.

      1. Not quite MNG, if you are connected, you don’t go to jail.

        These laws are only there to scare the law abiding middle class into obedience.

  10. it’s conceivable the Court will at some point ask whether the Second Amendment allows the government to permanently deprive tax evaders

    From my cold, dead hands!

  11. I’m waiting for the gun control lobby to figure out that the way to ban gun ownership is not by passing laws, but by amending the Covenants and Restrictions of homeowner’s associations (H.O.A.s) to prohibit private firearm ownership.

    H.O.A.s have the power of small governments (assess “taxes,” fines, etc.), but are shielded as corporations. Therefore, they are not bound to honor the constitutional rights of homeowners.

    The upside to this scheme — at least from the point of view of the gun control lobby — is that conservative and libertarian organizations are loathe to interfere with H.O.A.s, because they are private corporations.

    With almost all new housing being built in Common Interest Development “communities”, the “problem” of private citizens being allowed to own guns will eventually take care of itself.

    Homeowners will either comply, or face escalating legal bills and foreclosure.

    1. I don’t belong to a HOA, and if one started in my neighborhood, I would immediately move.

      1. I question whether it is legal for a new homeowner’s association to impose itself on private property whose owners don’t agree to join it.

        Buying property that is already part of one is one thing (I wouldn’t do it), but if I lived in an area where one all of a sudden started up, who are they to say my property is included in it?

        1. Not related to gun rights, but to address a topic of involuntary incorporation into H.O.A.s mentioned above:

          In 1999, Robert Nelson proposed “a new legal instrument be enacted to permit existing neighborhoods to establish collective private property right regimes of their own,” where “all property owners would be required to join the neighborhood association and would be subject to the full terms and conditions of the neighborhood association charter. The neighborhood would have the right to collect assessments to fund
          its operations from each association member” [“Privatizing the Neighborhood: A Proposal to Replace Zoning with Private Collective Property Rights to Existing Neighborhoods.” George Mason Law Review. Summer 1999]. This article was recently cited by the Independence Institute in support of free market alternatives to zoning regulations [Brian Schwartz. “”Free-market Alternatives to Zoning” February 2009].

          As far as I know, such legislation has not been passed in any state to allow this to happen. But given the lobbying influence of the Community Associations Institute, and the pro-H.O.A. bias among free market/private property think tanks, I expect to see this happen in my lifetime.

          In any case, the trend is that most, if not almost all, new housing is built within H.O.A.s, due to government encouragement and developer greed. In a few decades, you won’t have a choice of whether or not you live in an H.O.A. “community.”

          “In 1965 less than 1 percent of all Americans lived in a private community association. By 2005, 18 percent?about 55 million people?lived within a homeowners association, a condominium, or a cooperative. Since 1980 about a half of all new housing units in the U.S. have been built within such associations; in California, the figure now is at least 60 percent” [Robert Nelson. “Welcome to the New?and Private?Neighborhood” Reason. April 2006]. Other sources put that number at 80% [Carol Lloyd. “The Myth of ‘Privatopia’” SFGate. December 17, 2002]. Whatever the exact number, the trend is toward more H.O.A.s.

          In Communist Russia, you could wear any colored shoes you want,
          provided they were black.
          Why? Because they were producing only black shows.
          In America today, across the country, you can live in any home
          you want provided it’s in a homeowners association.
          Why? Because municipalities and cities require the subdivision to
          be governed by an H.O.A.

          The May 17, 2000 issue of The Onion ran a Point-Counterpoint feature, with one columnist arguing that “The Future Will Be A Totalitarian Government Dystopia,” while another wrote that “The Future Will Be A Privatized Corporate Dystopia.” With H.O.A.s, we will be able to experience the worst of both worlds.

      2. And I have copper coated candy for anyone who tries to tell me otherwise.

      3. Whether or not owners who currently do not live in H.O.A.s can be required to “join” one is another question (which I’ll deal with below). My original point was that there is nothing to prevent existing H.O.A.s to amend their rules to prohibit firearms within the community.

        If the gun-control lobby were smart (and that’s a big if), they would have their lawyers work with H.O.A. lawyers to amend the rules of the H.O.A.s around the country to prohibit gun ownership within the communities. While the N.R.A. would of course oppose this move, free-market private-property libertarian-oriented organizations could not do so without looking like hypocrites, because their current position is that H.O.A.s represent free markets and private property rights.

        Depending on the the regulations and laws, it is possible for an H.O.A. to amend its rules without homeowner approval. And even where it is put to a vote, it is very easy for an H.O.A. to influence the outcome of an election, without resorting to outright fraud (e.g., denying the rights of specific home owners to vote, which is perfectly legal). In practice, home owners in H.O.A. “communities” have very little practical protections.

        Constitutional rights do not apply to H.O.A.s. For example, some H.O.A.s will allow police to search your home without a warrant [Brian Doherty. “The Homeowners Association Loophole.” Reason. January 27, 2003].

        The position of groups like the Institute for Justice and Goldwater Institute is that H.O.A. abuses are simply a matter of contract law [George Staropoli. “The Impact of Party Ideologues on the HOA Legal Scheme.” November 2008. Link is to a small PDF file], even though government interference has encouraged the creation of H.O.A.s and has given H.O.A.s extreme power over a home owner’s private property (e.g., the right to non-judicial foreclosure, which is now a cottage industry among H.O.A. lawyers [Carol Lloyd. “The Myth of ‘Privatopia’.” SFGate. December 17, 2002].).

    2. Dear H.O.A. Board of Directors,

      As you are aware, there have been several incidents of violence, including shootings, directed at H.O.A. board members and homeowners in recent years (e.g., the shooting death of Rita Hohmeier in Franlink Park, IL, and the fatal shootings at the Ventena Lakes H.O.A. meeting).

      Scientific statistics show that most people are shot by somebody they know, which means that you are at greatest risk from other home owners within your community who own guns.

      Although our lawmakers will not stand up to the gun lobby, and refuse to curtail the easy access to guns in this country, you can do something about this problem and protect yourselves.

      As you are aware, H.O.A.s have the power of small governments, but are regulated as corporations. Therefore, recent court rulings that erroneously refer to the second amendment as an individual right do not apply to your association. You have it within your power to amend the rules of the H.O.A. to prohibit privately owned firearms with the common interest community.

      In exchange for the benefits of common ownership, the residents elect an legislative/executive board and delegate powers to the H.O.A. board. The courts have ruled that this delegation concerns not only activities conducted in the common areas, but also extends to life within “the confines of the home itself” (Nahrstedt v . Lakeside Village Condominium Assn. (1994) 8 Cal.4th at p. 373).

      In theory, such a change to the rules would require approval of the homeowners. However, in practice it is easy for an H.O.A. board to produce the desired outcome of an election using perfectly legal methods, without resort to outright fraud. It is also possible to have the courts approve changes to the H.O.A. rules without a vote by the members of the association.

      And because H.O.A.s are corporations, many conservative, libertarian, and pro-business organizations will not oppose such a move. They have argued in the past that H.O.A.s can do whatever they want. To them, H.O.A. rules are simply a private contract matter between the H.O.A. corporation and an individual home owner, and they have no desire to interfere with the free market.

      The benefits of turning your community into a privatized gun free zone are twofold: (1) board members, and other home owners, would be protected from gun violence, and (2) the H.O.A. would have another source of revenue, by levying fines against those home owners who insist on clinging to their guns, and seizing their homes through non-judicial foreclosure.

      If you are interested in implementing such a change, our lawyers would be more than willing to assist you. Or, if you live in a municipality sympathetic to our goals, we can put you in touch with the city’s legal office.

      Sincerely yours,

      The Gun Control Lobby

      1. If the Brady Center and Violence Policy Center are smart, they would first approach sympathetic H.O.A.s with the above proposal.

        Once the members of H.O.A.s in anti-gun areas freely adopt such restrictions, it would serve as a precedent for future cases where the home owners aren’t so enthusiastic about turning their neighborhoods into privatized gun-free zones, but their H.O.A. Board of Directors, property management company, and H.O.A. lawyers are.

        1. Dear Gun Control Lobby

          We have comared the burglary rate and the violent crime rate in the H.O.A.s that have banned forearms with statistics from H.O.A.s that have taken the Kennesaw, Georgia approach and required firearms ownership.

          Please remove us from your mailing list.

          Sincerely yours,

          Denim Home Owner’s Associaton

          P.S. The Greenleaf Home Owners Association next door also wants off your list. They’ll send a formal request as soon as they can figure out where the board secretary they voted out of office kept the stamps.

  12. I don’t see how you can deprive even felons of their constitutional rights.

    Why not cut off the penises and vaginas of convicted felons so they can’t reproduce?

    1. I don’t see how you can deprive even felons of their constitutional rights.

      See what happens when felons try to walk out of prison.

  13. As a cop since the 80’s and a Bill of Rights supporter, I hope the DV laws preventing gun ownership are oveturned some day. People need to be able to protect themselves with an effective weapon. Believe it or not, a lot of cops would support my position on this and disapprove of assault weapons bans. Oh, I’m from Texas.

    1. Under Texas law (Penal Code 46.04) a person convicted of a felony or a domestic violence Class A misdemeanor cannot possess a firearm for five years after release from supervision. After that a felon can possess a firearm only at his place of residence. Under PC 46.041 felons also cannot possess body armor.

      As is the case with medical MJ, federal laws prevail.

  14. Again, this is mostly in Maricopa county.

    Because the NRA annoys me, I looked into the Gun Owners of America. On one part of their web page, they saluted Joe Arpaio for (I’m paraphrasing) “his respect for the Constitution”. No shit. That told me all I needed to know about GOA.

    JPFO looks a lot more clued in. I wonder if they accept Gentile members.

    1. GOA is nothing more than a cash cow for Larry Pratt.

      If you want to support a pro-rights organization but don’t want to support the NRA, donate to the Second Amendment Foundation. They’re the group that funds the litigation to repeal or modify a lot of these idiotic laws, and they’re moving mountains on a shoestring budget.

  15. Why not cut off the penises and vaginas of convicted felons so they can’t reproduce?

    Why stop there? Three generations of imbeciles is enough!

    1. Three generations of imbeciles is are enough!

  16. As I recall Hilary as Senator was working on a plan to get ex-felons their voting rights back. I suppose she saw ex-felons as a large potential Democratic voting block. Can you see liberals backing restoration of gun rights to felons as a way to add on voting rights also?

  17. . I suppose she saw ex-felons as a large potential Democratic voting block.

    Why would ex-felons be a potential Democratic voting bloc?

    1. A high percentage of minorities?

      1. No, it’s more like another giveaway program – hand out goodies (welfare, citizenship, et cetera) and the party handing out said goodies gets the votes.

  18. No, I think LarryA has it right. Ahigher percentage of felons are minorities, especially instates like New York, New Jersey, Illinois, California, Texas, Florida and Pennsylvania. That’s a potentially rich crop of votes.

  19. If a woman killed her terribly abusive husband with a butcher knife, would we consider 5 years probation and prohibition from owning a knife for the rest of her life a sensible sentence? I think laughable would be closer to it.
    Inalienable rights? I’ve seen no such thing in my 60 years.

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