Gun rights in criminal law, securing rights after conviction

Virginia law recognizes that the law of necessity inherent in the right of self-defense allows a felon to temporarily take possession of a firearm for use in defense against an immediate threat:

“A person who reasonably apprehends imminent bodily harm by another is privileged to exercise reasonable force to repel the assault.” Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25 (1989). As set out above, the essential elements of the necessity defense, which allows a convicted felon to possess a firearm for self-defense,4 include “(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.” Buckley, 7 Va. App. at 33, 371 S.E.2d at 827-28.

“[W]hether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.” McGhee, 219 Va. at 562, 248 S.E.2d at 810. “It is not essential to the right of self-defense that the danger should in fact exist.” Id. However, “the test is not [merely] whether the accused thought or believed at the time of the killing that he was in imminent danger of great bodily harm. . . . He both must have believed and must have had reasonable ground to believe, at the time, that he was in such danger.” Perkins v. Commonwealth, 186 Va. 867, 877, 44 S.E.2d 426, 430 (1947).5

Implicit in the application of such a defense to the crime of possessing a firearm after having been convicted of a felony is that the felon may possess the weapon only so long as is necessary to protect himself from the imminent threat. See, e.g., Panter, 688 F.2d at 272. Necessity provides no defense to a charge of possession of a firearm by a convicted felon if the felon takes possession of the firearm before the threat becomes imminent or retains possession longer than required after the danger has passed. See, e.g., id.; see also Marrero v. State, 516 So. 2d 1052, 1055-56 (Fla. Dist. Ct. App. 1987) (holding whether accused retained possession longer than necessary was question of fact).

Humphrey v. Commonwealth, 37 Va. App. 36, 49-50, 553 S.E.2d 546, ___ (2001)

 

I am aware of the cases you cite. You are not wrong in how you quote these cases. If you look at my past posts in this forum you would see me quoting several of these cases myself.

We are not in disagreement here.

I believe we are talking across purposes here on a point that is directly related to the topic of the thread. If we accept that the founders argued some rights—particularly those listed in the Declaration are “unalienable,” and we further accept the absolutist argument that the term “unalienable” rights means they “cannot be aliened,” then this argument questions the very legitimacy of the Constitution. Consider, for example, the 5th Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Here we see how our founders accepted that the rights of life and liberty—which are deemed “unalienable” by our Declaration—may in fact be “aliened.” The key to understanding this apparent paradox is these rights are inherently your rights until you choose to forfeit their protection by your own actions involving criminal conduct. If we read the term as a literal cannot be “aliened” “without the consent” of the citizen for any reason then I promise you I have been violating this principle for decades, for no criminal defendant consents to the loss of his liberty through incarceration—still less the loss of his life—as a result of the outcome of a criminal case.

IMO, the better way to state this principle is to say that these rights are inherent in the nature of man—that no government has the legitimate power to deprive you of these rights without your consent—but that you can forfeit the protection of these rights as a consequence of your criminal conduct.

This relates back to the question being raised in this thread regarding the re-acquisition of the RKBA after you forfeited it as a consequence of your criminal conduct.

 

I believe this is incorrect. SCOTUS most certainly did not reverse “all of the standing precedents by holding that the Right to keep and bear arms is not unlimited.” If we read your quote in its proper context—including what immediately follows it—you will see that the Court was relying on prior precedent for its “not unlimited” ruling:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. District Of Columbia v. Heller, 554 U.S. 570, 626-627 (200

In addition to quoting precedent directly related to the RKBA, the Court prefaced its ruling with “like most rights….” Here the Court was further signaling how it was relying on precedent developed from the consideration of other rights in the BoR. And although Heller did not cite them, the cases taking this “not an absolute right” position regarding our constitutionally protected rights are legion. Consider this small sampling of first amendment rights, beginning with the right of free speech:

At the outset we reject the view that freedom of speech and association (N. A. A. C. P. v. Alabama, 357 U.S. 449, 460), as protected by the First and Fourteenth Amendments, are “absolutes,” not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment. Konigsberg v. States Bar, 366 U.S. 36, 49-50 (1961)

It is for this reason that this Court has recognized the inherent value of free discourse. An analysis of the leading cases in this Court which have involved direct limitations on speech, however, will demonstrate that both the majority of the Court and the dissenters in particular cases have recognized that this is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations. Dennis v. United States, 341 U.S. 494, 503 (1951)

Freedom of association:

We have recognized “a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts, 468 U.S., at 618. And we have acknowledged that “when the State interferes with individuals' selection of those with whom they wish to join in a common endeavor, freedom of association . . . may be implicated.” Ibid. But “[t]he right to associate for expressive purposes is not . . . absolute”; rather, “the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which . . . the constitutionally protected liberty is at stake in a given case.” Boy Scouts of America v. Dale, 530 U.S. 640, 678 (2000)

Free exercise of religion:

The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303. Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U.S. 67; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U.S. 105; Follett v. McCormick, 321 U.S. 573; cf. Grosjean v. American Press Co., 297 U.S. 233. On the other hand, [Page 403] the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for “even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions.” Braunfeld v. Brown, 366 U.S. 599, 603. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States, 98 U.S. 145; Jacobson v. Massachusetts, 197 U.S. 11; Prince v. Massachusetts, 321 U.S. 158; Cleveland v. United States, 329 U.S. 14. Sherbert v. Verner, 374 U.S. 398, 402-403 (1963)

The argument for the absolute view of rights comes in two forms (which are not inconsistent with each other and can be combined depending on the viewpoint): 1. The right absolutely and always resides with the citizen and can never for any reason be removed, even temporarily. AND 2: the right is absolute in its scope—that is—the words must be read absolutely to protect any thing or conduct that might possibly be considered within the literal meaning of the words.

SCOTUS rejected both of these views in Heller, and it is beyond question that it relied on prior precedent to do so. Indeed, had it “reversed all of the standing precedents by holding that the Right to keep and bear Arms is not unlimited” we would have certainly heard the two dissenting opinions criticize the majority for this complete departure from the judicial rule of stare decisis to make that particular ruling. We did not see this because the Heller majority did not abandon this precedent.

We have already seen an example of how our founders accepted conditions which justify the “alienation” of the “absolute” rights of life and liberty in the 5th Amendment. Our founders understood the legal concepts of libel and slander and did not object to their continued limitations on the right to free speech and press. Nor is there any evidence to suggest they would have accepted that the free exercise of religion must be so absolute as to permit human sacrifice. And clearly subsequent rulings have, for example, deemed that the right to freedom of the press and the expansion into the realm of “free expression” does not contain any protection against prosecution for manufacturing and distributing child pornography.

We may not like how Heller ruled, but it is incorrect to suggest it broke new ground or ignored precedent to do so.

 

Please feel free to cite whatever cases you like. I am always willing to read cases I have not seen before and you may have some. It appears we are on the same team in accepting the RKBA is a fundamental right of all mankind.

But I suggest you are absolutely wrong to claim the 2nd Amendment was incorporated through the 14th Amendment’s P&I clause because that is not what happened. SCOTUS does not incorporate rights recognized in the BoR this way. These rights have been incorporated through the amendment’s due process clause. McDonald remained true to prior SCOTUS precedent on the incorporation of the BoR and it chose the due process path. Justice Thomas wrote a concurring opinion arguing use of the P&I clause, but he was not joined in advocating that path of incorporation.

Using the due process clause for incorporation is important, for the way SCOTUS uses the due process clause for incorporation in no way reduces the right to a mere privilege. Rather, it strengthens the right.

I have read McDonald, and although the entire opinion is far too long to be quoted here I can tell you that the official summary of the majority holding is accurate. In addition to explaining why the RKBA is a fundamental right worthy of incorporation the summary provides a brief history lesson on incorporation that outlines both how and why the due process path is used for rights listed in the BoR. Here it is in its entirety (note it starts with how each party framed its case, looked at the history of incorporation, and then turned to how and why it was going to rule):

JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II-A, II-B, II-D, and III, concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. Pp. 753-758, 759-780.

(a) Petitioners base their case on two submissions. Primarily, they argue that the right to keep and bear arms is protected by the Privileges or Immunities Clause of the Fourteenth Amendment and that the Slaughter-House Cases' narrow interpretation of the Clause should now be rejected. As a secondary argument, they contend that the Fourteenth Amendment's Due Process Clause incorporates the Second [Page 743] Amendment right. Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any “‘civilized’” legal system. If it is possible to imagine a civilized country that does not recognize the right, municipal respondents assert, that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of handguns, they maintain that due process does not preclude such measures. P. 753.

(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War's aftermath fundamentally altered the federal system. Four years after the adoption of the Fourteenth Amendment, this Court held in the Slaughter-House Cases that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” 16 Wall., at 79, and that the fundamental rights predating the creation of the Federal Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79-80. Subsequently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, supra, Presser, supra, and Miller, supra, the decisions on which the Seventh Circuit relied in this case. Pp. 754-758.

(c) Whether the Second Amendment right to keep and bear arms applies to the States is considered in light of the Court's precedents applying the Bill of Rights' protections to the States. Pp. 759-766.

(1) In the late 19th century, the Court began to hold that the Due Process Clause prohibits the States from infringing Bill of Rights protections. See, e.g., Hurtado v. California, 110 U.S. 516. Five features of the approach taken during the ensuing era are noted. First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See Twining v. New Jersey, 211 U.S. 78, 99. Second, the Court explained that the only rights due process protected against state infringement were those “of such a nature that they are included in the conception of due process of law.” Ibid. Third, some cases during this era “can be seen as having asked . . . if a civilized system could be imagined that would not accord the particular protection” asserted therein. Duncan v. Louisiana, 391 U.S. 145, 149, n. 14. Fourth, the Court did not hesitate to hold that a Bill of Rights guarantee failed to meet the test for Due Process Clause protection, finding, e.g., that freedom of speech and press qualified, Gitlow v. New York, 268 U.S. 652, [Page 744] 666; Near v. Minnesota ex rel. Olson, 283 U.S. 697, but the grand jury indictment requirement did not, Hurtado, supra. Finally, even when such a right was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from those provided against abridgment by the Federal Government. Pp. 759-761.

(2) Justice Black championed the alternative theory that § 1 of the Fourteenth Amendment totally incorporated all of the Bill of Rights' provisions, see, e.g., Adamson v. California, 332 U.S. 46, 71-72 (Black, J., dissenting), but the Court never has embraced that theory. Pp. 761-763.

(3) The Court eventually moved in the direction advocated by Justice Black, by adopting a theory of selective incorporation by which the Due Process Clause incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 341. These decisions abandoned three of the characteristics of the earlier period. The Court clarified that the governing standard is whether a particular Bill of Rights protection is fundamental to our Nation's particular scheme of ordered liberty and system of justice. Duncan, supra, at 149, n. 14. The Court eventually held that almost all of the Bill of Rights' guarantees met the requirements for protection under the Due Process Clause. The Court also held that Bill of Rights protections must “all . . . be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U.S. 1, 10. Under this approach, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or remedies did not apply to the States. See, e.g., Gideon, supra, which overruled Betts v. Brady, 316 U.S. 455. Pp. 763-766.

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 767-780.

(1) The Court must decide whether that right is fundamental to the Nation's scheme of ordered liberty, Duncan, supra, at 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation's history and tradition,” Washington v. Glucksberg, 521 U.S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. 554 U.S., at 599. Explaining that “the need for defense of self, family, and property is most acute” in the home, id., at 628, the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one's home and family,” id., at [Page 745] 628-629. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at 630. Heller also clarifies that this right is “deeply rooted in this Nation's history and tradition,” Glucksberg, supra, at 721. Heller explored the right's origins in English law and noted the esteem with which the right was regarded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was regarded as fundamental in the sense relevant here. That understanding persisted in the years immediately following the Bill of Rights' ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms. Pp. 767-770.

(2) A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty. Pp. 770-780.

(i) By the 1850's, the fear that the National Government would disarm the universal militia had largely faded, but the right to keep and bear arms was highly valued for self-defense. Abolitionist authors wrote in support of the right, and attempts to disarm “Free-Soilers” in “Bloody Kansas” met with outrage that the constitutional right to keep and bear arms had been taken from the people. After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African-Americans, see Heller, supra, at 614-615. These injustices prompted the 39th Congress to pass the Freedmen's Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, it is generally accepted that that Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389. In congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Evidence from the period immediately following the Amendment's ratification confirms that that right was considered fundamental. Pp. 770-778.

(ii) Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed § 1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while § 1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause, it can hardly be said that the section does no more than prohibit discrimination. If what municipal respondents mean is that the Second Amendment should be singled out for special — and specially unfavorable — [Page 746] treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 778-780.

McDonald v. Chicago, 561 U.S. 742, 742-746 (2010)

McDonald’s incorporation of the right was not a reduction of the right into a mere privilege for the purpose of making the square peg fit into the round hole. Incorporation was done because the RKBA was not just viewed as a right but as a right so important that its protection “is fundamental to our Nation's particular scheme of ordered liberty and system of justice”—thus requiring its application to the states through the due process clause. Rather than watering down a right into some privilege dispensed at the sole discretion of a governmental minister, the act of incorporation under the 14th Amendment’s due process clause is a declaration that (to paraphrase Orwell) all rights are equal, but some are more equal than others, and in this case the RKBA is one of those more equal rights deserving of further protection.

Thus you can see the due process clause approach to incorporation is entirely different from what you have assumed, and this is why I believe your reasoning that incorporation has turned the amendment into a mere privilege is flawed.

As I said before, the 14th was used because it is the only enforcement mechanism against the states. McDonald’s incorporating of the RKBA did not weaken it by treating it like a mere privilege to be doled out and taken away at the whim of an irritated government minster. Incorporation held this right of the people is so fundamentally important that it must be made binding on the irritated minister regardless of whether he holds federal or state office.

In sum, McDonald’s incorporation of the RKBA was a very good thing.

 

So what was her outcome? Jail? More parole?

 

The problem is, not all felonies are the same. In fact, not all felony convictions are the same.
Yet the law lumps them all together into the same boat.

If we were only talking about crimes like rape, robbery, murder, etc, that would be one thing, probably understandable, but we are not.
And even when it comes to convictions, there are all sorts of situations where people can be convicted of something when they did not break the law, or did not knowingly break the law.
Again, if we are only talking about crimes like rape, robbery, murder, etc, then that's still fine. But we are not. We are talking about other types of offenses, where there was a conviction even though the person might not have done it.

This issue is a little complicated and takes some mental effort to be able to understand. Which I suspect is why this issue exists and why the legal problem has not been dealt with up to now.

 

Its a States issue you are talking about regarding this Mom. Each state is different, I would defer to the 10th Amendment here.

 

I think you are missing the point I was trying to make.

I was just using this as an example.

Since this is also a federal law, it is not only merely just a state's rights issue.

That's interesting to know, but you are still missing the point I was trying to make.

I wasn't really trying to discuss a specific incident that happened in a certain specific state.

 

Its a states issue, the state can lesson the crime for possession, but from your article there was a large quantity along with paraphernalia in the car. So kinda hard to lessen the charge then. My state no longer busts people for having weed unless they are carrying large amounts with out the proper documentation. Also in my state, her husband couldn't keep his guns in the house that she was in.

She should have got an attorney to begin with to fight her first trial and charge.

 

I agree. The problem is we have had a tremendous proliferation in the number of crimes classified as felonies (with the increase being an overwhelming increase in what are classified as non-violent offenses) without consideration of how this automatically increases the number of persons who by being convicted suffer the loss of these rights. I for one have no problem with an automatic restoration for non-violent offenders coupled with a stronger review process for persons convicted of violent felonies.

 

So after a long sentence, someone who committed violent crimes (Murder, rape, kidnapping, robbery, assault) should go from prison to a gun store?

I am a strong supporter of the second amendment and know that laws don't stop criminals from having guns. Those capable of harming another person should never be allowed to possess a firearm.

 

The whole point of my opening post is that these were the type of cases I was not talking about.

I just don't understand how so many people can be so block-headed.
It's as if the whole point of my opening post went right over the heads. (At least judging from the replies so far)

ByranVa, seems to be one of the few posters so far who gets it.

 

Maybe I can put it into terms that will help some of you who are more mentally slow understand.

Imagine you have an illegal gun. You can be put in prison and then released from prison, and then put back in prison again for even more time for having a gun that would otherwise be legal.

That is the current law.

If you don't realize that, you are incredibly naive and block headed.

In that situation, you would have to apply for your right to have a gun to be restored, and they could deny your application, under current law.

So the question is, are you okay with that?

Maybe the problem is you don't even know what the current law actually is.
That's why some of you aren't able to see any problem.

Here's a question then: How are you even going to be able to defend your rights, when you don't even know what the attack on your rights is?

 

I totally agree with the gist of what you are saying, but I think we have to be a lot more specific in the law than just saying "non-violent felonies".
I think the law should specifically spell out the categories of crimes that a person should permanently lose their rights over, and then separate from that, the categories of crimes where they could lose their rights over (subject to some extra procedure).

I know this might not make sense to people, on the surface, but by making the law more complicated, we can end up making the actual process more streamlined and better help protect people's rights at the same time. With some complicated combination of different categories of crimes, timeframe limits, and the requirement of special additional procedures if authorities wish to take away an individual's rights beyond this.

What I mean is make the law as automated as possible, in a reasonable way.
But where those who should not obviously have their rights permanently taken away would still be entitled to some additional form of due process, if authorities desire to take away their rights.

Because we need to recognise that throwing someone into prison for 1 year is not the same thing as permanently taking away someone's rights for the rest of their life and threatening to put them back in prison if they do something that would otherwise be legal for a normal person.
There are many types of situations where the first one would be okay, but the second one should not be seen as being okay.

And that person should be entitled to more due process in this matter than just one official in authority deciding whether their rights should be restored.

Imagine if it were legally permissible for a person to be thrown into prison for life if they were convicted of any felony. Would we be okay with that? Of course not.
The law needs to and is there to provide protections to the individual.

 

The law pretty much does that already.

This is in place in some states, again 10th Amendment. Not all states are the same.

Some states have a panel that makes that decision, others may have only one person, you should be citing sources for these claims.

A felon in possession of a firearm doesn't get a life sentence in prison for having the firearm.

Not a good statement for you to use, that mirror on your wall, look in it for a reflection.

Everybody has recognized that a felon can not posses a firearm in many states, here is a link that may help you understand the 10th Amendment and felons abilities to posses a firearm.
https://www.cga.ct.gov/2002/rpt/2002-R-0335.htm

Here's a basic search with numerous links for a felons ability to posses a firearm.
https://duckduckgo.com/?t=ffsb&q=what+state+allows+a+felon+to+own+a+firearm&ia=web

 

I highly disagree.

 

There are federal laws concerning this.

Are you claiming states can pass a law to override federal law?

 

No, but they can easily get more new prison time than the original amount of prison time they served for the original felony.

Something just does not seem right about that. (At least not in many situations)

 

You can disagree all you want, the laws are pretty clear what the outcome could be.

 

Do you not understand the difference between state laws and jurisdiction of a crime and federal law and federal jurisdiction of a crime?

 

Actions and choices have consequences. It is up to the individual to make those choices. They can choose to petition for restoration of their rights or they don't have to, again their choice. It is then up to them to convince the legal system that they should no longer be considered a public safety risk.

https://www.newsmax.com/FastFeatures/can-a-felon-own/2014/11/17/id/607940/

1. A 1965 amendment to the federal Firearms Act of 1938 allows felons who want to own a gun the ability to apply for "relief from the disability of not being able to possess a gun." If the felon can convince the Bureau of Alcohol, Tobacco, and Firearms that the circumstances surrounding the crime and subsequent felony conviction were such that the felon should not be considered a public safety risk, then the felon may be granted the right to legal gun ownership.

2. According to the Law Center to Prevent Gun Violence, in order to be prohibited from owning a gun, a convicted felon must have been convicted of a crime that is "punishable by imprisonment for more than one year." Although even the least serious felony convictions carry a sentence of up to three years, sentencing guidelines are open to the interpretation of judges. Thus while it would be rare for a felony conviction sentence to be less than one year, it is not impossible.

3. According to the Bureau of Alcohol, Tobacco, and Firearms, "Felons whose convictions have been set-aside or expunged, or for which the person has been pardoned or has had civil rights restored" are not considered "convicted" and thus they would not be prohibited from owning a gun.

4. Certain "white collar" crimes that result in a felony conviction don't prohibit those felons from owning guns. For example, felony convictions related to antitrust laws, restraint of trade, or unfair trade practices do not carry the same prohibition on gun ownership even if the conviction results in imprisonment for more than a year.

5. Some states will reinstate a felon's right to own a gun after they have served their sentence or gone through a period of "cleansing." For example, according to FindLaw, nonviolent felons in Minnesota state law provides that a felon can legally own a gun as soon as they have finished serving their sentence. In Louisiana, state law provides that after a "cleansing period" of 10 years in which a felon has not been convicted of an additional felony, their right to own a gun may be reinstated.

 

That may be true, but I presented several examples where there might only be felonies of a moderate or medium seriousness nature, where an individual could still be easily convicted even though they might not have done it.

Also ascribing punishments to actions that are not deserving of those punishments is still wrong, even if the individual in question knew, or should have known, exactly how they were connected under the law.

But that is an endless list of different "crimes" these days. What you just stated means very little.

And also "punishable by more than one year" does not even mean that they were sentenced to that amount of prison time. (Example: You could be sentenced to only 6 months under a law that is "punishable by more than one year")

 

Then that person should get a competent lawyer and fight their conviction, again a choice they have, if they don't take that choice, who's fault is it really?

 

The problem is who is deciding whether the civil rights should be restored.
That is the whole central issue.

 

Nope, they shouldn't have to. The problem is with the law itself.

What you don't seem to understand is, there are situations where a person who may not have done it should go to prison, for a limited period of time.
But their long-term rights should still be protected.

The problem is, the current system of due process does not adequately cover both of those.
It conflates the two together as one.

(i.e. the "due process" only protects you if you if we know you should not spend any time in prison)

That we as a society have decided you should go to prison DOES NOT mean that we know for sure you committed the crime.
That's a big logical error many people seem to make.