In our last post, we had pondered this issue: After Heller, how can laws that permanently deny large classes of people the right to possess firearms be constitutional? Why can a fundamental right be taken away simply because one has a felony conviction?
Mr. Kates answers that question in the Post:
Federal and state laws against convicted felons having guns are still valid: The Second Amendment protects a right of self-defense for "good" people only.
Well, that clears it up! "Good" people have the right to self-defense. Bad people do not.
In fairness to Mr. Kates, there is an actual constitutional argument in his article:
Is there any chance the Supreme Court would eventually buy the arguments of
the criminals' lawyers? Not if it pays any attention to the clear record of the
Second Amendment's history.
The amendment guarantees a "right of the people to keep and bear arms" -
and the Founding Fathers did not think "the people" included criminals. Under
the law as they knew it, felons were "civilly dead": They had no legal rights
whatever. All their property (including guns) was forfeit. (Moreover, they were
subject to execution - which made their rights irrelevant.)
Here at Hawks and Handsaws, we have some professional interest in this issue, and have studied more than a few articles (mostly written pre-Heller) that discuss the effect of a 2nd amendment right on felon-in-possession laws. For the most part, we've come across variations of the above argument. We must confess that find very little merit in it.
(1) Under the common law, felons could be executed for their crimes. But did they really automatically lose all of their rights and property? We suspect Kates may be wrong about this. We'd really like to see some citations to some actual laws (which we have yet to find in the literature we've read) before we assume that felons automatically had no rights at common law.
(2) In any case, felons convicted today are certainly not subject to forfeiture of all property or (usually) execution
(3) Is anyone aware of any court that has held that a person may lose a fundamental constitutional right simply because of a criminal conviction? The right to speak in public, for example? Or the right to have a jury trial, if accused of another crime?
(No, losing the right to vote doesn't count - as Scalia would happily remind us, this right is not guaranteed anywhere in the Bill of Rights)
(4) Would you wany to live in a society that stripped millions people of all their rights in this manner?
It seems that Mr. Kates may not want this either, which could be why he carves out a big exception at the end of his article:
In sum, the constitutional right to arms simply does not extend to people convicted of serious criminal offenses. By "serious," I refer to the early common law - under which felonies were real wrongs like rape,robbery and murder.
Unfortunately, modern legislatures have added a host of trivial felonies. For instance, in California an 18-year-old girl who has oral sex with her 17-year-old boyfriend has committed a felony. The courts should rule that conviction of such a trivial felony can't deprive such a "felon" of her right to arms.
Kates claims to be a criminologist, but he doesn't seem to realize how big of an exception he is carving out here. Many - possibly most - people with felony convictions have been convicted of crimes that weren't "real wrongs" like rape, robbery, and murder (and according to Kates, all rapes don't count - he exempts at least one kind of statutory rape in his second paragraph). Drug offenses, for example, weren't even crimes under the common law.
It seems, ironically, that many felons would be quite happy with the World According to Kates.
NEXT: We go back to Scalia's opinion.