Tuesday, January 15, 2013

Gun Possession Rights; 2d Amendment and More

I speak here initially of ex-felon with guns prohibitions, but the controlling issue is a major thread in a larger raiment, about which I shall close these comments.  One thing the constitutional defense Bar needs to continue to hammer on is the unconstitutionality of ex-felon with gun statutes. Heller and McDonald finally announced what true constitutionalists have always known: that the Framers considered individual gun possession to protect ones self, family, hearth, home, property to be a fundamental right that predated the founding of the Republic. 
Blackstone considered gun possession rights to be part and parcel of the property and life that we possess and seek to expand, because that which we cannot protect we don't truly have. Part of the problem with Heller and McDonald is that the faux originalists ["faint hearted originalist," as Scalia describes himself!] writing them did not really understand the difference between the constitutional right announced in the 2d Amendment [a mechanism for guaranteeing the preservation of federalism] and the fundamental right of self-preservation and self-propagation, which is what gun possession is really all about [an inalienable right that inheres in our very existence, as noted in the Declaration]. 
So, they got the fundamental rights language mostly correct, but their ham-handed attempt to pound it into the 2d Amendment placed implied limitations on that which is unlimited. A constitutional right can be taken away by constitutional amendment; a fundamental right is inalienable. So, if there is a fundamental right to possess arms for the protection and propagation values described above [and there is], then the fact that one is an ex-felon does not abnegate his right to protect himself and his family and home. Indeed, one with a criminal past is less likely to obtain police attention when the cry for help goes out than are we "decent"[!] folk, so they arguably have a greater, not lesser, right to gun possession. 
What you run up against when you try to litigate the ex-felon with a gun prohibitions [the few of us who do], though, is Scalia's idiotic [or maybe puckishly wise] comment in Heller that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons….” First off, that is gratuitous dictum that had nothing to do with the issue before the court, and hence it is not constitutional law [the idiotic part]. Secondly, there were no "longstanding prohibitions" of that sort, considering that colonial times was the context of the holding [puckishly wise portion?]. You can't find any colony that prohibited people who had felony convictions from possessing guns! Indeed, many of the founding fathers were convicted in absentia in England of treason, so many of them were felons of the vilest sort: did they mean to prohibit themselves from possessing guns? 
So, the defense Bar needs to keep hammering and hammering and hammering on the unconstitutionality of ex-felon with guns prohibitions, so that my pleadings on the subject are not the only ones the courts are seeing. Hammer, hammer, hammer!  Felons have a right to protect themselves and their families and hearths just as you and I do, and the defense Bar has a duty to assist them to do so, or.... the attorneys should go into Wills & Trusts law, the place for the dead!
But I write here not only for ex-felons with guns prohibitions, but to address some of the blather we are hearing and reading in the press and on the blog-o-sphere and and on talk radio and in the "hallowed halls" of government.  Like it or not, there is a fundamental right to possess guns, originally to hunt for family sustenance [and a bit now], and both then and now to protect hearth and home and family and self; there really is no properly informed disagreement with that notion.  And that is not what the 2d Amendment was all about; just as we do not see an amendment protecting our rights to breathe or to mate or to have children or to have homes, we do not need an amendment to lay out the various legitimate mechanisms for protecting those rights.  The 2d Amendment really was about militias and states protecting themselves from federal incursions and permitting the people to keep their own guns instead of having them in a state armory, etc.  "Bear arms" has a martail connotation - if I carry my own gun down the street for my own protection, I am not "bearing arms," I'm carrying my gun!  The individual right to possess guns resides in the Declaration, and is recognized and protected in the 9th Amendment and in the liberty clauses of the 5th and 14th Amendments.
The idiotic debates about 7 round clips or 10 round clips or 30 round clips, or whether we can have hand grenades or bazookas, and other simplistic persnickety-isms, overlooks that it is a Constitution we are expounding, and we cannot press constitutional matters without understanding what a constitution, and what our Constitution, is all about.  One thing is for certain - we cannot limit the rights of all because of the abuses of the few, or else the Constitution would be rendered nugatory, and in would be ushered arbitrary government.  It is just outside the gates as it is!
Whack jobs abuse guns as they do books, printing presses, Bibles, Korans, juries, self-incrimination privileges, rights to attorneys and juries, etc., but we cannot shave back on any rights of us all because of the abuses of the few.  We have to deal with the root causes of the abuses side of the problem and not lay waste to the rights side.
Indeed, a Constitution is not a Constitution, and constitutional rights are not truly constitutional rights, if assaults on them by deluded ravagers invites a diminution of the rights or the Constitution itself.
One of the problems here is that we really do not have people devoted to the Constitution, nor even properly informed about it, in office and on the bench.  Values other than fealty to, and an understanding of, the founding principles of the Republic factor so heavily in the "vetting" process that installs judges, legislators, and executives that constitutional faithfulness gets lost in the folderol.
We have a right to possess guns for the values described above, and those who would deny it are ignorant or traitors or tyrants. 


  1. Mike writes: "The 2nd Amendment really was about melitias (sic) and states protecting themselves from federal incursions and permitting the people to keep their own guns instead of having them in a state armory, etc. 'Bear arms' has a martail (sic) connotation"

    I completely agree with this (except to note that it was also to guard against foreign incursions, not just federal). And that is what makes discussions about size of magazines just so silly! Taken to its obvious and "originalist" conclusion, the 2nd Amendment, in my opinion, protects the right to the personal possession of any weapon of war that exists . . . right up to and including nuclear arms. Of course, I am not willing to accept that danger to the community. But the proper way to deal with this anomaly is to deal with the anachronism of the 2nd Amendment, and not just ignore it or "interpret" it away.

    That's my two cents on the subject.

  2. You are too humble in suggesting that your input is worth only two cents.

    I do not find any evidence that the 2d was concerned about foreign incursions; virtually all of the voiced concern was about the protection of federalism, with the national government providing the protection against foreign incursions. However, most of the things that animate people these days about gun rights are the unstated fundamental right of personal protection, and not the true 2d Amendment value. Scalia got the source all wrong, but his definition of the substance was largely correct.

    The irony of this clip size debate is that we are likely to see commerce clause attacks on that aspect of the gun possession "remedy" while the Obama-ites are still trying to get their reluctant heads around the reality that there is a fundamental right to largely unfettered possession, protected by the 9th and the 14th, and not mainly by the 2d. The clip-size debate will be the new "mudflaps" commerce clause issue. www.kennedyforlaw.com

  3. A long and drawn out debate about magazine size will give the politicians something to fundraise about for months to come. In that way, it is a flawless example of American politics at its . . . best? worst? . . . well, most typical.

  4. If a person has a felony expunged are their gun rights restored or can they be restored?

  5. Captain Motion you stated that "I do not find any evidence that the 2d was concerned about foreign incursions; virtually all of the voiced concern was about the protection of federalism, with the national government providing the protection against foreign incursions." I find it quite interesting that you can't find such evidence, as invasion by European powers was a big concern of Founding Fathers such as Tench Coxe and he wrote about this extensively (e.g., to Thomas Jefferson). Coxe felt that the best protection from such an invasion was not a standing army, but a well-armed and well-regulated militia and did his utmost to make this a reality throughout his life (he died in 1824).

  6. That was a pre-Bill of Rights concern which is part of the fundamental rights issue I discuss, which I consider protected by the 9th Amendment and the Declaration. .


Be civil, intelligent, and non-confrontational.