Whether convicted felons should be able to possess firearms seems to be a no-brainer, at least on the surface. It appears obvious that if anyone is restricted from such ownership or possession, it should be those persons who have been duly convicted of a serious crime. A federal statute, 18 U.S.C. § 901(g) provides that a person who has been convicted of a crime that is punishable by imprisonment for more than one year, or two years if a state misdemeanor offense, is banned from possessing any firearm, or other dangerous weapon (whatever that might be), for the rest of their life.
The Constitutionality of this statute has been questioned by legal commentators and in a number of cases to the extent it applies to non-violent crimes such as regulatory offenses. So far it has been upheld in the federal appeals courts, though with dissents by participating judges in a few. The Supreme Court has not had a case that involved this issue as of yet.
During the recent U.S. Senate Judiciary Committee’s hearings on whether Amy Coney Barrett, a federal Court of Appeals judge and former law professor, should be confirmed as a Supreme Court Justice, at least one Senator on the committee questioned Barrett about this issue. What prompted the questioning was a dissent that Barrett wrote in an opinion in her role as a judge on the Seventh Circuit Court of Appeals upholding the statute.(1) That case involved an individual who had been convicted of mail fraud for representing orthopedic shoe inserts he was selling were Medicare approved when they were not. Her dissenting opinion would hold that in a case where the defendant was convicted of a non-violent felony, the statute would be unconstitutional under the Second Amendment to the United States Constitution, and the Supreme Court decisions that recognized the individual right to keep and bear arms. If Barrett is confirmed as a member of the Supreme Court, which appears likely at this juncture, and the court were to hear a similar case, the “felon in possession” law, at least at the federal level, could be modified to not apply for nonviolent offenses.
This prospect distresses many who are in favor of stricter gun control laws, particularly lawmakers on the Democrat side of the aisle. Why would anyone believe that someone convicted of a serious crime should not lose their right? After all, a felon has been convicted of a crime that Congress or a state legislature has determined to be a serious affront to public safety and order. And when one is convicted they can lose their liberty by incarceration, and lose their property through fines or forfeiture. In some states, a convicted felon loses their right to vote, to hold public office, to serve on juries, and other civic rights.
Conviction of crime does not allow infringement of religious liberties, freedom of speech, freedom from cruel and unusual punishment, and so forth. Should such conviction allow the government to curtail ones right to self-defense — especially when in their own home — and other lawful use of arms, as protected by the Second Amendment?
There are several things to keep in mind in this controversy.
There is a concept in law that categorizes offenses as either malum-in-se, meaning they are evil in themselves by commonly accepted standards, or malum prohibitum, that is, bad because they are prohibited for some reason other than they are inherently evil. It is obvious that, for example, murder, rape, robbery, assault, and similar offenses utilizing physical force, its threat, or potential, are evil. At the other end of the spectrum, jaywalking, driving without a license, damming a stream on one’s property that feeds into a navigable waterway, or shipping lobsters to market in the wrong kind of packaging, are not inherently evil.
At common law, felonies were few, and limited to acts of violence for the most part. Treason was a separate category at common law, and could include merely wishing for harm to the king. Felonies were all punishable by forfeiture, corruption of blood, and even (but not always) death. In some felonies such as theft, the punishment could be mutilation or branding — serious and exceptionally harsh punishment. Anyone who committed these crimes was considered not to be fit to live in the community or to remain there with significant legal and even physical disabilities. This, of course, is no longer the case in any common law jurisdiction. These punishments had been abolished in the English-speaking world and in many other cultures, by the end of the 19th century except for the most serious of offenses such as murder.
The statute, 18 U.S.C. § 901, discussed here provides that the prohibition extends to a conviction of a crime punishable by more than one year imprisonment. It does not use the word “felon” or “felony” in its language.
Offenses that provide for possible punishment of more than a year incarceration include over a thousand acts criminalized under the United States Code and state laws. Many of these are regulatory offenses defined by administrative bodies, and not necessarily by legislatures or Congress. Those administrative or regulatory crimes, with few exceptions, do not involve any kind of violent act, or threat of violence. The title of lawyer Harvey Silverglate’s Three Felonies a Day (2009) suggests the number, or more, each adult individual in the United States might unknowingly commit while going about their everyday activities.(2) What is worse, while Title 18 is the federal criminal section of the Code, there are numerous other crimes defined elsewhere in the Code — some in really obscure places — and in administrative rules that the average person, and even Justice Department lawyers, are unaware of, And this in a legal system where ignorance of the law is no excuse!
There have been recent calls from along the political spectrum for criminal justice reform. Many have called for an end of “mass incarceration” particularly regarding non-violent drug offenses. There is is also widespread criticism of the strict liability crimes, that is, offenses that do not require a culpable mental state such as intent, knowledge, or recklessness. Whether there is a political will to accomplish any such reform is not entirely clear.
In any event, this issue needs to be addressed in the Supreme Court. It “cries out for a serious and fresh look–the first serious look since the 1920s, and arguably the first ever in light of the historical right. The need is particularly acute given the cancerous growth since the 1920s of “regulatory” crimes punishable by more than a year in prison, as distinct from traditional common-law crimes. The effect of this growth has been to expand the number and types of crimes that trigger ‘felon’ disabilities to rope in persons whose convictions do not establish any threat that they will physically harm anyone, much less with a gun.”(3)
The over-criminalizing of activities that are not inherently evil coupled with the lifetime ban on the ability to exercise a fundamental right enumerated in the Constitution and recognized by Supreme Court is a danger to liberty. This is so even by the mere threat. It might seem remote to most of us. But consider the following warning written over 60 years ago:
Did you really think that we want those laws to be observed? We want them broken. You better get it straight that it is not a bunch of boy scouts you are up against — then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you had better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted — and you create a nation of lawbreakers — and then you cash in on guilt. Now that is the system, that is the game, once you understand it, you’ll be much easier to deal with. (4)
Think about that.
- Kanter vs. Barr, 919 F.3d 437 (2019).
- Follow this link to see eight ways to inadvertently commit a felony. There are doubtless many others. https://www.mic.com/articles/86797/8-ways-we-regularly-commit-felonies-without-realizing-it
- See C. K. Marshall, “Why Can’t Martha Stewart Have a Gun?” 32 Harvard Journal of Law & Public Policy 695 (2009).
- Ayn Rand, Atlas Shrugged (1957) pb. 410.