U.S. District Court finds Some Felons Have Second Amendment Rights

Gun Watch ^ | 7 May, 2018 | Dean Weingarten

[marktwain]

On 26 April, 2018, the United States District Court for the Southern District of Illinois held that some felons have the right to keep and bear arms. Larry Hatfield was a perfect test case. From reason.com, Hatfield v. Session (formerly Hatfield v. Lynch)

Plaintiff Larry Edward Hatfield wants to keep a gun in his home for self-defense. But the Government bans him from doing so, because 28 years ago, Hatfield lied on some forms that he sent to the Railroad Retirement Board: a felony in violation of 18 U.S.C. § 1001(a). Hatfield later pled guilty to one count of violating the statute, an offense for which he received no prison time and a meager amount in restitution fees pursuant to a formal plea agreement with the Government.

Now, Hatfield brings this as-applied challenge to 18 U.S.C. § 922(g)(1)—the statute that bans him from owning a gun—on the grounds that it violates his Second Amendment rights. Hatfield embeds his argument in United States v. Williams, 616 F.3d 685 , 692 (7th Cir. 2010), which instructed that "[the Supreme Court's decision in D.C. v. Heller, 554 U.S. 570 (2008)] referred to felon disarmament bans only as 'presumptively lawful,' which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge." If there is any case that rebuts that presumption, it is this one. So for the following reasons, the Court GRANTS summary judgment in favor of Plaintiff Larry E. Hatfield....

[T]he Government—instead of focusing on a narrow class of as-applied challengers—rests their position on the broad idea that since felons have shown a "manifest disregard for the rights of others," the Government may immediately strip them of their Second Amendment rights. The Government seems to think this is the case even if they cut a plea deal with the felon that recommended zero days in prison, like they did with Hatfield.

It is absolutely impossible to reconcile the Government's positions here that (1) a specific felon is so harmless that the felon does not need to go to prison for their felony conviction, but also (2) the felon is so dangerous that they should be stripped of their right to own a gun and defend their home. This type of logical inconsistency shows that the Government is not taking the Second Amendment seriously. The Second Amendment has to mean something as a matter of law, policy debates aside. Overbroad policies ignoring a constitutional amendment are inexcusable.

 J. Phil Gilbert, District Judge gets to the hear of the matter. The Second Amendment has to mean something. It is logically inconsistent that a convicted felon is so harmless that he is not jailed, yet is so dangerous that he can not be allowed arms to defend himself.

The problem comes from the ever expanding list of felonies. Felonies are defined in federal law as crimes for which a person may be imprisoned for more than a year.  There are so many federal felonies that books have been written about the impossibility of living in the United States without committing felonies.

At the time of the founding, there were only seven crimes that were considered felonies. They were murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem, and burglary.

Progressives have expanded the list to many thousands of regulatory crimes.  In an ironic twist, many of the arcane gun laws across the nation, particularly federal gun laws, make relatively minor regulatory crimes a felony.

Sell a gun to another person, who lives in a bordering state. It may be a federal felony, even if the other person can legally own and buy the same gun in his state!  This serves the regulatory reign of terror. People are chilled from exercising their rights because they *might* be violating federal law. Prosecutors can go after individuals and work to "find the crime", instead of prosecuting crimes they know have been committed.  Ayn Rand summed up the process well:

“Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean 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 or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with.”

This decision is a step away from the current regulatory tyranny. In supporting the Second Amendment, it shows, as said in the decision, the Second Amendment means something. It shall not be rendered toothless and impotent by interpreting it out of existence.


©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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[marktwain]

A judge that actually applies the law. Amazing.

[PeterPrinciple]

At the time of the founding, there were only seven crimes that were considered felonies. They were murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem, and burglary.

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We need to go back to that,

Violent crimes should restrict gun ownership. But then the definition of violence would change. In todays world offending is a violent crime.

[reed13k]

Treason?

[PeterPrinciple]

The Second Amendment has to mean something as a matter of law, policy debates aside. Overbroad policies ignoring a constitutional amendment are inexcusable.

---

A reminder to us all, the Constitution is the Constitution, or it is nothing.

Every time something happens we expect a law. Things need to go to civil court, not criminal court.................

[DoodleDawg]

A judge that actually applies the law. Amazing.

You mean applies the Constitution. If he had applied the law then the plaintiff wouldn't be allowed to own a firearm.

[PeterPrinciple]

. Felonies are defined in federal law as crimes for which a person may be imprisoned for more than a year.

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I did not know that................................

[PeterPrinciple]

Good question on treason. Here is a little history but is uk. still looking.

https://en.wikipedia.org/wiki/Treason_Felony_Act_1848

[catman67]

At the time of the founding, there were only seven crimes that were considered felonies. They were murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem, and burglary.

That's nine.

[PeterPrinciple]

Treason?

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Treason is only crime defined in constitution so classed other than felony?

Fewer that 40 prosecutions?

https://www.criminaldefenselawyer.com/resources/treason.htm

[PeterPrinciple]

That’s nine.

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adjusted for political correctioness, had to remove sodomy and mayhem?

may·hem

NOUN
violent or damaging disorder; chaos.
“complete mayhem broke out”
synonyms: chaos · disorder · confusion · havoc · bedlam · pandemonium · tumult · uproar · turmoil · madness · madhouse · hullabaloo · all hell broken loose · [more]

Sodomy
Sodomy is generally anal or oral sex between people or sexual activity between a person and a non-human animal (bestiality), but may also include any non-procreative sexual activity. Originally the term sodomy, which is derived from the story of Sodom and Gomorrah in chapters 18 and 19 of the Book of Genesis in the Bible, was commonly restricted to anal sex.

[PeterPrinciple]

I wonder if sodomy has ever been taken off the books in federal Law?

Only remains in 12 states?

https://www.usatoday.com/story/news/nation/2014/04/21/12-states-ban-sodomy-a-decade-after-court-ruling/7981025/

[Yo-Yo]

The law should be changed to when you have completely served your full sentence (including any parole) that all of your rights are restored.

Bare minimum, the law needs to be changed from "felony that could have a sentence of over one year" to "felony sentenced to more than one year" to revoke Second Amendment rights.

And the entire Lautenberg amendment needs to be repealed.

[marktwain]

Thanks for catching that.

I thought I had corrected it.

[dila813]

We need to have Congress clarify the law. We need to another category separating out all these things being called a felony.

[afsnco]

As a member of a prosecutor’s office for many years, it saddens me that people aren’t permitted to pay their debt to society and have ALL their rights restored upon release. This idea of perpetual punishment is just wrong, as far as I’m concerned. If they break the law again, jail them again. But if they’re out of jail, they should have ALL rights restored.

[marktwain]

You mean applies the Constitution. If he had applied the law then the plaintiff wouldn’t be allowed to own a firearm.

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I understand what you are saying, but isn’t the Constitution the supreme law of the land?

[rjsimmon]

but isn’t the Constitution the supreme law of the land?

Not according to California...

[MileHi]

Thanks, Dean. Good news.

[MileHi]

This idea of perpetual punishment is just wrong, as far as I’m concerned.

Could it be "cruel and unusual"?

[afsnco]

It certainly could. Cruel and unusual punishment has been defined as “Punishment prohibited by the Eighth Amendment to the Constitution. Cruel and unusual punishment includes torture, deliberately degrading punishment, or punishment that is too severe for the crime committed.” I think this violates that last category: too severe for the crime committed. Disenfranchising someone and preventing someone from defending themselves are both pretty severe.