NRA, SAF File Amicus Brief in Challenge to Lifetime Gun Ban for Non-Dangerous Felons

Someone who is convicted of murder can get out and get their right to vote restored without issue. Meanwhile, someone who commits tax fraud — a crime that I could argue is a civic duty, even if I'm too terrified of prison to try it myself — will have their gun rights kept from them indefinitely. While there's now a process to get those rights restored, the question is whether they should need to be restored in the first place.

In other words, should people with non-violent felonies get their gun rights back automatically?

That's the crux of the argument the NRA and Second Amendment Foundation make in an amicus brief.

The brief provides an extensive historical analysis demonstrating that America’s tradition of firearm regulation supports disarming only dangerous persons—disaffected persons posing a threat to the government and persons with a proven proclivity for violence. From the colonial period through the nineteenth century, arms restrictions applied solely to people believed to present a risk of violence or armed insurrection. This tradition was reflected in the debates and proposed amendments at the Constitution’s ratifying conventions, and dangerousness remained the sole justification for disarmament throughout American history.

The brief further explains that there is no tradition of disarming peaceable citizens. Historically, nonviolent criminals—including nonviolent felons—who did not demonstrate a propensity for violence retained their right to keep and bear arms. Some laws expressly allowed or even required them to keep and bear arms.

Finally, the brief addresses the rationale the Fifth Circuit has recently adopted in disarmament cases: that the Founding-era practice of imposing capital punishment for some felonies establishes a tradition of permanently disarming every person convicted of a felony. Many offenses classified as felonies were not capital offenses, and there is no tradition of continuing to disarm felons who completed their sentences. Moreover, because other rights guaranteed by the Bill of Rights are not forfeited simply because an offense was historically a capital offense, using eligibility for capital punishment as the metric for permanent disarmament would subject the Second Amendment to specially unfavorable treatment relative to other constitutional rights, contrary to the Supreme Court’s instruction that it not be treated as a second-class right.

And that whole "not be treated as a second-class right" is precisely why I mentioned voting rights above. If you can vote but can't own a firearm, then one of those rights isn't held to the same standard as all of the others. If you can speak freely and worship as you will, but can't own a gun, then one of those rights is of a lower importance, thus a second-class (at least) right.

The NRA and SAF are right to argue that, if you're going to restrict it at all, at least make sure the person in question has shown they're dangerous. Someone who bounces a check for groceries is quite a bit different than someone who committed a double homicide.

Now, personally, where I disagree is in the fact that I think if someone is that dangerous, they should remain locked up. After all, sometimes, even three decades is clearly not long enough. 

That's a separate debate from whether someone who committed a non-violent offense decades ago should be permanently stripped of their Second Amendment rights, though. The issue before the Fifth Circuit right now is if Congress or a state legislature really have the power to take away your right to own a gun just by saying a particular offense is a felony. 

The Second Amendment is a fundamental right, and permanently denying someone that right should require more than pointing to a felony conviction and saying that's good enough. 

Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.

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