Second Amendment

Disarmed but Not Dangerous

A challenge to the federal ban on gun possession by people convicted of felonies gives SCOTUS a chance to rectify its neglect of the Second Amendment.

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For lying on her federal income tax returns, Lisa Folajtar got three years of probation and a lifetime of constitutional disability. Because her crime carried a maximum penalty of three years in prison, she was permanently stripped of her Second Amendment right to keep and bear arms.

In a case that could give the Supreme Court an opportunity to elucidate the Second Amendment's restrictions on firearm laws for the first time in more than a decade, the U.S. Court of Appeals for the 3rd Circuit recently rejected Folojtar's challenge to the federal ban on gun possession by people with felony records. The dissent echoed the position staked out by the Court's newest justice, Amy Coney Barrett, as a 7th Circuit judge, saying that disqualification is not just unfair but unconstitutional.

Folojtar, who also paid a $10,000 fine and $250,000 in back taxes, argued that she should not have lost her constitutional right to armed self-defense because there was no reason to think she posed a threat to public safety. Two members of a three-judge 3rd Circuit panel disagreed, saying the Second Amendment is limited to "virtuous" citizens, a category from which Folojtar was forever expelled when she cheated on her taxes.

Although that view has been endorsed by several federal appeals courts, Judge Stephanos Bibas said in his 27-page dissent, it is at odds with the original public understanding of the Second Amendment. He argued that "the historical touchstone" for disarming felons is "danger, not virtue."

Barrett reached the same conclusion in a 2019 case involving a man named Rickey Kanter, who lost his Second Amendment rights after he was convicted of mail fraud. While history "demonstrates that legislatures have the power to prohibit dangerous people from possessing guns," she wrote in a 37-page dissent, "that power extends only to people who are dangerous."

Barrett emphasized that "founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons." The number of crimes classified as felonies has expanded dramatically since then, making the connection between that category and an assumption of violent tendencies even more tenuous.

Barrett noted that modern-day felonies include "everything from Kanter's offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses." Bibas, who drew on Barrett's historical research in his own dissent, made the same point.

"A radio talk show host can become a felon for uttering 'any obscene, indecent, or profane language by means of radio communication,'" Bibas noted. "Opening a bottle of ketchup at the supermarket and putting it back on the shelf" is a felony in New Jersey, he added, and so is "reading another person's email without permission" in Pennsylvania.

In Oklahoma, adultery is a felony; other states classify it as a misdemeanor or do not treat it as a crime at all. "The Second Amendment right to keep and bear arms should not hinge on such arbitrary, manipulable distinctions," Bibas wrote.

In the landmark Second Amendment case District of Columbia v. Heller, the Supreme Court said "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 Bibas pointed out, neither issue was before the Court, so Heller did not resolve them—a point the 7th Circuit conceded last year.

Furthermore, the prohibition to which Folojtar and Kanter objected is of relatively recent vintage. "The federal felon-in-possession ban," Bibas noted, "did not begin to reach beyond violent crimes until 1961."

Since 2010, when the Court ruled that the Second Amendment imposes limits on state and local as well as federal gun control laws, it has passed up many opportunities to clarify the extent of those limits, an abdication that has troubled five of the current justices, including Barrett. This case gives the Court a chance to rectify its neglect.

© Copyright 2020 by Creators Syndicate Inc.

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60 responses to “Disarmed but Not Dangerous

  1. Dude give it up the feds don’t care and will write any law that sells you down the river. Joe Biteme is a ghost who haunts liberaltarians dreams.

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    3. Give it up? When we finally have as decent a SCOTUS [and lower courts] as we’ve seen in ages, and we have a clear shot at four years of gridlocking progressive wet dreams? Man up dude, it’s time to fight!

      1. Yeah! Bleed dem Jezebels to death with coathanger birth control. That’ll teach them not to have given you some, right?

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  2. Perhaps another problem in need of a fix is the expansion of what crimes qualify as a “felony”.

    But there are a zillion similar problems all caused by having as expansive a government as we have. There’s the real problem.

    1. Thanks to a vast administrative bureaucracy that generates it’s own rules and penalties without limits. If Congress actually had to come up with it’s own legislation and sufficiently detail the law and the penalties, that would be a huge step toward deregulation.

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  3. As I understand it, central to felonies permitting revocation of rights, was that felonies were all, at one time, crimes you could be executed for. ANYTHING short of killing you was a lesser sentence.

    Anyway, I’d like to see the Court revisit the Lautenberg amendment, which deprived of 2nd amendment rights people with ‘domestic violence’ misdemeanor convictions.

    Including ‘convictions’ which were prior to the enactment of the amendment, and which often consisted of people pleading guilty only because the fine on conviction was cheaper than the cost of contesting the charge.

    This amendment passed scrutiny because there wasn’t really any scrutiny; The Court was treating gun ownership as a privilege, not a right.

    Mind, the idea that changing the penalty for a crime after conviction wasn’t a violation of the ex post facto clause was pretty nasty, too.

    1. The misdirection is in the second sentence of this article and in the prevailing SCOTUS point of view. “..permanently stripped of her 2nd amendment right..”. Not true. Any federal judge can re-instate the right. The attorneys who argued in support brought evidence that “non-violent” felons were 2.3 times more likely to commit a future violent crime than non-felons. I think ACB is going to be Gorsuchy. Do you know that he let lots of criminals off the hook because the word, “violent” is not specific enough for them to know that they’re engaged in a criminal act!

      1. 2.3 times almost zero is still almost zero.

        You’re right that some of the justices might be persuaded by that factoid but they shouldn’t be.

      2. The attorneys who argued in support brought evidence that “non-violent” felons were 2.3 times more likely to commit a future violent crime than non-felons.

        That’s one of those utterly meaningless factoids that are used to befuddle the weak-minded. A multiplier isn’t of any value without knowing the base value that you’re multiplying it by.

  4. I’m going to guess that Joe Biden supports the idea of felons not being allowed to own guns. I’m also guessing Joe Biden supports the idea of making a shitload more infractions felonies. Spitting on the sidewalk, making a right turn on red before coming to a complete stop, jaywalking, not wearing a mask in public – they’ll all be felonies and they’ll all mean a loss of your right to own a gun.

    1. Indeed. The very same Joe Biden whom Sullum and the rest of Reason did their level best to get elected.

      1. You really think that they couldn’t have done better if they actually supported Biden rather than opposing Trump?

    2. The dumb scumbag Republicans in Louisiana can’t even repeal the unconstitutional criminal statutes. You must live in fucking in another universe to not understand that Republicans are the fucking absolute no question worst mfers on criminal law.

      1. Yet Biden was the one putting young black men in prison. Given eight years as Chocolate Jesus’ sidekick he did nothing about it. Including two years where your kind ran the table.

        You progs don’t give a shit about anything but your power and the domination of humanity. This is because you’re evil. Evil people crave such things.

        The rest of us want you to leave us alone, or else.

      2. Eggzactly tied with the other looters…? The East German Democratic whatchamacallem?

  5. Look, if they can put you in a cage for possessing plants they can basically do anything to you. I have a constitutional right to a gun! Yeah well, where’s the right to not be put in a fucking cage?

    1. Govts clearly have power to incarcerate for committing crimes. They clearly have police power to enact laws that criminalize many acts. The only limits on those laws are the limits that the Constitution places on them, and the ability of citizens to vote the fuckers out if they don’t like the laws. The 2nd Amendment clearly limits the power of governments to enact certain laws regarding gun ownership. There is no similar marijuana amendment.

      1. Don’t bother, it emotes rather than thinking. and won’t accept any facts that are counter in-group biases. But a good summary explanation.

    2. It’s in the 4th Amendment. Perhaps you’ve heard of it.

    3. Plants? It’s worse than that. They’re allowed to publish a currency that they can later decide to remove from you without due process, just because you happen to have “too much” of it on hand.

      Until that’s resolved, SCOTUS and its interpretation of the cumstitution remain one big joke. Allowing local constabularies to take and keep such found money/goods is in no way, shape, or form reasonable in anyone’s eyes (except those of the thieves who confiscate it).

      The 5th amendment’s “nor shall private property be taken for public use” is another supposed right that was cum-soaked in New London vs Kelo, wherein the phrase “public use” came to mean “anything that might net us more taxes, including replacing one private business with another.”

      It’s a joke, one big joke. We’re supposed to do something about this level of abuse. Instead, we elect a fuckwad lifetime politican whose sole purpose in life, as far as I see it, has been to live off government teat while fucking the rest of us over. Human garbage.

      Fuck Biden. Fuck SCOTUS. And fuck Trump, too, who spent a part of his career trying to take advantage of eminent domain, and did nothing to fix it during his presidency.

      These people are not heroes.

  6. “Folojtar, who also paid a $10,000 fine and $250,000 in back taxes, argued that she should not have lost her constitutional right to armed self-defense because there was no reason to think she posed a threat to public safety.”

    But Folojtar has already demonstrated that she will defy government, and therefore poses a threat to government safety. No guns for her!

    1. The misdirection is in the second sentence of this article and in the prevailing SCOTUS point of view. “..permanently stripped of her 2nd amendment right..”. Not true. Any federal judge can re-instate the right. The attorneys who argued in support brought evidence that “non-violent” felons were 2.3 times more likely to commit a future violent crime than non-felons. I think ACB is going to be Gorsuchy. Do you know that he let lots of criminals off the hook because the word, “violent” is not specific enough for them to know that they’re engaged in a criminal act!

      1. 2.3 times almost zero is still almost zero.

        You’re right that some of the justices might be persuaded by that factoid but they shouldn’t be.

  7. “virtuous” citizens

    Nice band name.

  8. Get bent, Sullum. We only have a Supreme Court that might rule in favor of the Second Amendment because of the “bad orange man who mean-tweets” and whom you guys have fought at every turn.

    1. What would they even rule, that’s it’s cruel and usual to impose a sanction for violating a criminal statute? The whole circumstance of carving out special protections for guns all while you’re taking a shit on bodily liberty is a fucking joke.

      1. Unusual

      2. That there is no compelling government interest in disarming people convicted of non-violent crimes. You need to have a very compelling reason to deny people their basic right guaranteed in the BOR. The rights mentioned in the 2nd amendment are no less fundamental and essential than the 1st or 4th or any other amendment.

      3. WTF are you talking about?

      4. No, just that, if the sanction you’re going to impose is permanent deprivation of an enumerated civil liberty, you need a better justification than, “Duh, it’s a punishment!”.

      5. The 2nd Amendment clearly makes gun ownership a fundamental right, as evidenced by the Heller and McDonald cases. The Supreme Court’s 14th Amendment case law says that laws that bear upon fundamental rights have to meet strict scrutiny, where the law is narrowly tailored to a compelling government interest. For gun cases, the government will always be able to point to reducing death as its interest. But will it be able to show that a law is narrowly tailored to that end? Barrett’s 7th Circuit dissent makes it pretty clear that the answer is no.

        I would also note that there’s a fundamental difference between gun ownership and your so-called bodily liberty. Only the first is actually mentioned in the Constitution. The second does not appear in the Constitution at all and arises only from completely unconvincing musings about penumbras and emanations. Abortion rights (and the entire body of substantive due process law) is a mirage created by a Supreme Court acting as a super legislature. I hope that the new conservative court has the cajones to get rid of it and devolve these questions back to the states, where they belong.

      6. You should probably either: (1) dial down the emotion; or (2) dial up your understanding of the Constitution.

        Exasperation based on inaccurate understandings is a silly look.

      7. I guess you skipped from to the First to Third Amendment when you read the Bill of Rights.

  9. The average citizen commits 10 felonies per day, depending on how much of a douchebag the local prosecutor is. So how many felonies do our elected officials commit per day?

    1. Hey! Let’s just convict everyone of the felonies we all commit, and that solves the gun problem. (Everyone gets a suspended sentence but we immediately confiscate their guns.)

  10. Let’s see: felons have a right to vote, but also a right to bear arms. What’s a progtard to do?

    1. They don’t mind the rights, just want them reserved to themselves.

    2. They want to get rid of one of those rights. Well, both of them actually, but not until they’ve grabbed power.

    3. If Nixon had gotten shot, Agnew could’ve been Chief Executive. Yet in ’73 Agnew pleaded nolo contendere to a charge that was definitely a felony when Al Capone was convicted on about half of 22 counts. It was our tough luck that instead he was required to resign. Still… imagine the legalese…

    4. Felons do NOT have a right to vote. NO ONE had the right to vote until after the Civil War. Originally (after the Revolutionary War) voting was denied not only to the most serious criminals (who usually didn’t have long to fret about that before they were hanged), but also to foreigners, to children (and it still is, although the definition of “child” has changed), to women, and in most of the states to men who did not meet a property requirement. That property requirement was gradually reduced and dropped, until by the 1850’s (AFAIK) poor men could vote in any state.

      The first right to vote under the federal Constitution was in the 14th and 15th Amendments, and the 14th specifically allowed the states to decide whether to disenfranchise those convicted of crimes. Several more amendments broadened the right to vote, but none of them gave felons this right.

      In contrast, the Second Amendment protects the right to keep and bear arms, and does not include any exceptions. One common-sense exception was recognized immediately – prisoners don’t get arms while incarcerated. OTOH, 18th and 19th century prisons might store an inmate’s belongings while he was incarcerated and give them back when he was released – including guns.

      When we stopped hanging all the armed robbers, rapists, and murderers, it made sense to extend that exception to these very dangerous men when they were released. But to go beyond that to include “felons” like Martha Stewart is ridiculous – and that our courts ever allowed completely nonviolent criminals to lose their right to keep and bear arms is definitely a sign that the courts weren’t taking the 2nd Amendment as seriously as the 1st.

  11. “Disarmed but Not Dangerous”

    Is that like Desperate but Not Serious?

  12. “Two members of a three-judge 3rd Circuit panel disagreed, saying the Second Amendment is limited to “virtuous” citizens…”

    Curious. Which other Constitutional Amendments apply only to “virtuous citizens?”

    1. This all leads me to wondering about the whole bullshit of calling something a right just because you like it. E.g., mostly, “health care.”

      No, health care not a “natural human right” (a bullshitty concept anyway), and the UK has already proven that by deciding when someone doesn’t get to exercise it (Alfie Evans, Charlie Gard). It’s not a human right when people decide they will ration it because “it costs too much for this one case.” Hey Charlie–fuck you, we won’t even let your parents take you out of the country to try to save your life. Fuck you, Gard, just die now.

      But hey… if we pretend health care is a universal right, and force providers to provide, we can also do the same here. “You suck, you’re not virtuous, we don’t like who you voted for, you’re a white male, so fuck your health care.”

      1. Basically: If you’re not the one who gets to choose to exercise it, and someone else decides on your behalf, it’s not a fucking right.

      2. See “Moral Rights and Political Freedom” by Tara Smith

      3. I am interested to know how they are planning to make me and the obstetrics docs perform abortions. Because we it’s a “woman’s right” to have an a abortion.

        My hospital and all the doctors and nurses don’t perform elective abortions. Because we all believe in not killing developing babies.
        I assume they will charge us with felonies for violating human rights

  13. If you are deemed so dangerous that you are likely to kill again, maybe you shouldn’t be out of prison in the first place. Kind of tough to really determine in most cases, natch, so shouldn’t we be erring on the side of liberty?

    So yes, if you are no longer deemed unsafe, i.e. out of prison, the government should not be able to deprive you of the very human right to be able to defend yourself from violence.

  14. When Tricky Nixon was sworn in as Prez, a thimbleful of seeds or matchbox of roots and stems was a FELONY. Governors Preston Smith, Adolph Briscoe and Billy Clements were classical rednecks with green teeth eager to lock up hippies and black gentlemen on whatever pretext. In 1930 it dawned on Chicago Tribune reporters that the 1929 Five and Ten law made unconvicted felons of half of Congress and a like slice of the Great Unwashed. Who can say what happened next, in the 1932 election?

  15. “The Second Amendment right to keep and bear arms should not hinge on such arbitrary, manipulable distinctions,”

    True. But a mere side effect of the fact that what is or is not a felony (a crime so heinous that the traditional punishment was death) should not hinge on arbitrary, manipulable distinctions.

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