Any punishment constitutes a loss of freedom, enumerated or not, right? Can we agree on that? So if punishing a criminal is constitutional, then the question is duration of sentence. You assert that the sentence of punishment must equate to a period of incarceration, and cannot be more than that. I see no constitutional basis for that assertion. The constitution does not require that punishment be incarceration, nor does it directly limit the duration of punishment for felonies; so how do you get to where you are at logically?
I appreciate your opinion, and as a nonconstitutional issue, dealing simply with what is just, I think there are logical points that we could agree on. But I can find nothing that limits a state from passing a life sentence that limits a person from working with children, driving heavy equipment, shooting fireworks, or possessing a firearm. Can such restrictions be unreasonable? Sure they can.
You are simply asserting that No. 1 is constitutional, without examining its contents.
True, it is certainly possible that a case could be made for No.1 being cruel and unusual. If that were the argument being made on this thread, I would be inclined to agree on some felonies and disagree on some felonies, but that is not the argument being made. The argument is that a life-long restriction of rights is in itself unconstitutional, and there is simply no basis to support that.
Disingenuous, as always. SampleGas pretends that the pursuit of felony charges by the State's persecutors is a "pristine exercise" of jailing raping child-murderers, when it is something else entirely:
[Judge Jed] Rakoff said judges should become more involved in the plea-deal process so prosecutors armed with harsh mandatory minimum sentences are less able to bully defendants. He said too many innocent people go to prison because the process is broken.
http://www.nydailynews.com/news/crime/judge-plea-deal-process-fixed-article-1.1806358
"The current process is totally different from what the founding fathers had in mind," because nearly all cases end in pleas, he [Judge Rakoff] said.
I don't accept your "it's always been this way!" mentality, SampleGas.
For the second time, I never asserted that. I specifically mentioned parole, and then pointed out that mention again, while recognizing that there are other forms of government supervision of a violator's affairs.
At some point, I mentioned that there is some point in a convict's life where he is no longer under government supervision. If you agree that there is such a point in time (setting aside the felon in possession), then our argument lies in what restrictions the government can constitutionally impose on what I will call, for shorthand, an ex-felon.
-- The constitution does not require that punishment be incarceration, nor does it directly limit the duration of punishment for felonies; so how do you get to where you are at logically? --
I never argued that that the constitution does not say that punishment must be incarceration, obviously there are fines, and as far as I know, courts have always been free to fashion parole as a remedy. And for offenses where the penalty is life in prison, or death, the issue of restoration of rights doesn't come up. The question, and our difference, is limited to the class of cases where the term of government supervision (be it incarceration, parole, supervised release, ordered into the asylum, or something else) is shorter than a person's lifetime.
I'll get back to your ultimate question shortly.
-- I can find nothing that limits a state from passing a life sentence that limits a person from working with children, driving heavy equipment, shooting fireworks, or possessing a firearm. --
Only one of those four activities appears as an enumerated right in the constitution, and the enumerated one is a right that enables the free man to defend his life should the need arise.
As far as I know, the driving one, be it heavy equipment of personal transportation, is unregulated and freely available on private property. One you did not bring up, but is universal in incarceration, parole and supervised release, is a prohibition on the consumption of alcohol. That is likewise not an enumerated right. By your rationale, the government could forbid the consumption of alcohol for a person's lifetime - nothing in the constitution prohibits this.
-- The argument is that a life-long restriction of rights is in itself unconstitutional, and there is simply no basis to support that. --
The contention is that a person who is not under government supervision has a constitutional right to keep and bear arms. The basis for the contention is the constitution itself, and what it was understood to allow the government to do, and what individual and public rights were protected from the government at the time it was ratified.
So, how do I "get there" logically? Setting aside the history and understanding of the constitution at the time it was ratified, in order for a law, including its punishment, to be valid (in a moral sense), there needs to be a rational relationship between the crime and the punishment. Repeat drunk driving? Lose the privilege of operating a vehicle on the public highways. Note that this is not an enumerated right. Armed robbery? Incarceration. Repeat armed robbery? Longer incarceration. Embezzlement? Can't be bonded.
The idea that adding a felon in possession law somehow reduces the probability of that repeat armed robbery is naive at best. The punishment function of felon in possession laws is increased time of incarceration for a repeat offender. That same effect can be had by increasing the time of incarceration for repeat offenders of the underlying crime.
I find it immoral to deprive a person of means to self defense, unless that person is given reasonable protection by those who are restraining him. By "person" here, I don't mean to include those who are under government supervision. I am referring to individuals who have freedom from government supervision.
The downside risk to the public is not improved by (ex-)felon in possession laws. Ex-felons possess firearms. Most of them do not go on to commit violence with the firearm. There will always be some people who need to be killed, and laws restricting everybody else just puts the greater number of people at greater risk.
I notice you never addressed my question relating to other enumerated rights. The same sort of "rational basis" analysis can be applied to those as well. What is the claimed function of the penalty? What are the downside risks that attach to that penalty and to forbearing from attaching that penalty? What freedoms (from government interference) do we hold near and dear?
The felon in possession law is at best a feelgood provision, but I think it is really a back door to disarming at least some significant fraction of the public.
And that's why the courts will not do anything to discredit felon in possession laws. The enumerated right to keep and bear arms is a hollow shell. The right exists only to the extent the government allows. And the simple justification is "we have to disarm some of you for your own protection." The size of "some of you" will never be decreased. The government does not want to be afraid of the people, it wants and demands that the people be afraid of it.
This is an area of the law that I've never reviewed or studied before, so pardon my halting and scattered "presentation."
My gut reaction mirrored yours, that cruel and unusual is to be taken literally, things like pulling out fingernails, public humiliation, drawing and quartering, etc. But cruel and unusal also prohibits the penalty (even a conventional one) not fitting the crime.
Furman v. Georgia, 408 U.S. 238 (1972)
The test, then, will ordinarily be a cumulative one: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.A cited case (Robinson v. California, 370 U.S. 660 (1962)) holds that imprisonment for narcotics addiction is cruel and unusual.