The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Firearms for Felons?

My previous posts on the Supreme Court overturning the D.C. gun ban stirred up more debate than I expected, second amendment rights being pretty far outside the realm of issues I usually cover. (Interestingly enough, it’s sparked quite a discussion over at Bilerico, which focuses mainly on LGBT-related issues.) So, why not continue? Especially since some people have come forward and answered the question I asked at the end of the last post.

I don’t pretend to know, and the suggestions above are nearly ridiculous (but in one case, very real) extremes. So, I’ll ask the same question I asked before that I don’t remember being answered: to gun rights advocates, what would you consider to be “reasonable” gun laws?

Well. When I saw this story, I wanted to add it to the mix. After all, states are already dealing with the question of whether felons should have the right to vote. It may not be the intention of the court, or the intention of the people who filed the suit to overturn D.C.’s gun law, but now felons are suing for the right to own firearms.

52811552655304aw5.jpg Twice convicted of felonies, James Francis Barton Jr. faces charges of violating a federal law barring felons from owning guns after police found seven pistols, three shotguns and five rifles at his home south of Pittsburgh.

As a defense, Barton and several other defendants in federal gun cases argue that last month’s Supreme Court ruling allows them to keep loaded handguns at home for self-defense.

“Felons, such as Barton, have the need and the right to protect themselves and their families by keeping firearms in their home,” says David Chontos, Barton’s court-appointed lawyer.

Chontos and other criminal defense lawyers say the high court’s decision means federal laws designed to keep guns out of the hands of people convicted of felonies and crimes of domestic violence are unconstitutional as long as the weapons are needed for self-defense.

Now, I’m not sure how right Mr. Chrontos is about this. And I’m reluctant to wade into the legal issues here, because I’ll quickly find myself out of my depth. But this Wall Street Journal column—by an author who seems to be in favor of the ruling — quotes Justice Scalia as saying the ruling shouldn’t “cast doubt” on state laws regarding felons and firearms.

One key unresolved question in D.C. v. Heller is whether it limits the states as well as the federal government. The Bill of Rights originally restrained only Congress, but under the “incorporation” doctrine, the Supreme Court has held that the 14th Amendment protects most constitutional rights against state encroachment. Because the capital is a federal district, its local government is a creation of the U.S. Congress. Heller gave no reason to think incorporation doesn’t apply, but further litigation will be necessary to settle the question.

Nor does Heller settle which restrictions are constitutional and which are not. Justice Scalia wrote that “nothing in our opinion should be taken to cast doubt” on laws against possession of firearms by felons or the mentally ill or in “sensitive places” like schools or government buildings, or laws regulating commerce in firearms. That’s fine with Mr. Gura, but many laws currently on the books fall somewhere between these uncontroversial provisions and D.C.’s onerous restrictions.

And so, the author is right. Further litigation will be necessary.

So, my question is, who’s right? Scalia or Chontos? And if it’s somewhere in the middle? What’s reasonable?

[Photo via jhounshell.]


  1. “what would you consider to be ‘reasonable’ gun laws”

    That’s not the question. The question is, what would you consider to be constiutional gun laws.

    Incorporation of the Second Amendment to the states is a given. No serious or even semi-serious lawyer or legal scholar doubts that. (See here for details.)

    As for felons: To the extent that the holding of Heller is that there is a “right to a handgun in the home for self-defense,” I think Scalia’s dictum will not hold. To the extent that Heller is meant to mean more than that (e.g., concealed carry, more powerful weapons), then a “not for felons” provision would likely survive whatever the level of scrutiny for Second Amendment challenges ends up being (remember, we don’t know yet what the level of scrutiny is).

  2. The Supreme Court Ruling on the Second Amendment is ridiculous! Scalia and his gang didn’t interpret the Second Amendment’s meaning. They failed to see that there are,in fact, two Militias to be considered. The one of Article 1,Section 8 of the Constitution, which can be called upon by the President and regulated by Congress, (our modern Military) and the other of the Second Amendment, which cannot be called by the President or controlled by Congress and by the States.
    The Second Amendment doesn’t grant Congress and or the States the right to regulate this amendment “by appropriate legislation”. It’s just not there.
    As for Felons firearms prohibition stated by Scalia, this doesn’t hold totally true. It applies only to people convicted of Federal crimes,can be anything,violent or non-violent, but it doesn’t apply to people convicted of State crimes because States, almost all of them, have Statutes which return people their Civil Rights upon application and this includes the right to possess firearms.
    All that is needed to possess firearms and satisfy the unconstitutional federal laws is getting back the right to vote,to run for office and to serve in a jury in cases of States Convictions.
    Those convicted under Federal Laws have no way to get Firearms Rights back as Congress has never passed laws similar to State Laws for getting back ones Civil Rights or obtaining a Certificate of Rehabilitation or Good Conduct or expungement as the States provide.
    Scalia has a lot to learn. There is discrimination here. States grant reliefs and the Federal Government doesn’t. This is not equal treatment under the laws.

  3. felons are not all the same. alot of ppl think just cause u r a felon u r a bad person! but it is realy a bad problem not bad person. felons that r changing there life should have the right to get the firearms back. for self-defence,rec stuff and hunting. may be a bit of topic but there is not enought ppl out there willing to help felons get stuff like that back in there life. alot of use r vermonters born and raised on hunting and fishing and messed up. we deserver another chance at that stuff..