April 11, 2006

Absolutism 301; Felons

"You want axe murderers to be able to walk into a store & just buy a gun?"

If you've ever argued against the federal or state laws creating classes of persons prohibited from owning arms then you've heard that sentence (or one very similar) before.

The flippant answer is of course you're more concerned with him walking into a store that may have axes.

The serious answer is you're more concerned with him walking into a store.

Before I dive in here are the links to the previous installments attempting to explain the Absolutist reasoning:

Absolutism 101: Prior Restraint

Absolutism 201: Principle v. Pragmatism

The Federal restrictions on people owning a firearm are found in 18 USC 922. Start at (b) for the restrictions on whom a dealer may sell to (which covers the age restrictions) then to (d) for the prohibition on those indicted for or convicted of a crime (among other things), then to (g) for the restrictions on possession of firearms of the person whom those above mentioned conditions apply. (i) & (j) covers possession of stolen firearms. (n) prohibits those under indictment (for crimes that carry a penalty of more than 1 year) from legally buying or receiving firearms. (x) deals with juvenile possession of handguns & handgun specific ammunition. (y) defines & lists exemptions for aliens.

18 USC 921 deals with definitions. (a) (14); (a) (15) & (a) (20) are of particular relevance.

In fact, here's (a) (20) in its entirety:

"(20) The term ''crime punishable by imprisonment for a term
exceeding one year'' does not include -
(A) any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business
practices, or
(B) any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of two years
or less.
What constitutes a conviction of such a crime shall be determined
in accordance with the law of the jurisdiction in which the
proceedings were held. Any conviction which has been expunged, or
set aside or for which a person has been pardoned or has had civil
rights restored shall not be considered a conviction for purposes
of this chapter, unless such pardon, expungement, or restoration of
civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms."

(a) (32) & (a) (33) define the domestic violence misdemeanors & restraining orders used a a basis for disqualification.

18 USC 925 (c) establishes the procedure for getting a reprieve from disabilities on the federal level. It should be noted however that since the early 90's congress has refused to fund this activity, hence no relief from a firearms disability has been granted under 18 USC 925 (c) in over a decade.

& just so ya know, 18 USC 931 prohibits violent felons from possessing body armor.

18 USC 924 deals with penalties for violating anything found in 18 USC Chapter 44 (which encompasses all firearms laws except the National Firearms Act which is found in 26 USC Chapter 53).

So now that that's all on the table let's surmise:

If you've been convicted of a crime that can land you a sentence of one year or more (or in some cases 2 years & excluding certain trade &/or business law violations) or a misdemeanor relating to domestic violence, or if you're being indicted for a crime whose punishment can exceed one year (or in some cases 2 years & excluding certain trade &/or business law violations) or if you're subject to a restraining order pertaining to domestic violence then you cannot legally purchase or receive a firearm in the united States. With the exception of the indictment mentioned above if any of the conditions of the preceding long-ass sentence apply then you cannot legally possess a firearm or ammunition in the united States.

To give you an idea of what kind of criminal activity creates such a disability under 18 USC Chapter 44 we have only to look at 18 USC Chapter 61 Section 1301:

"Whoever brings into the United States for the purpose of
disposing of the same, or knowingly deposits with any express
company or other common carrier for carriage, or carries in
interstate or foreign commerce any paper, certificate, or
instrument purporting to be or to represent a ticket, chance,
share, or interest in or dependent upon the event of a lottery,
gift enterprise, or similar scheme, offering prizes dependent in
whole or in part upon lot or chance, or any advertisement of, or
list of the prizes drawn or awarded by means of, any such lottery,
gift enterprise, or similar scheme; or, being engaged in the
business of procuring for a person in 1 State such a ticket,
chance, share, or interest in a lottery, gift, (FOOTNOTE 1)
enterprise or similar scheme conducted by another State (unless
that business is permitted under an agreement between the States in
question or appropriate authorities of those States), knowingly
transmits in interstate or foreign commerce information to be used
for the purpose of procuring such a ticket, chance, share, or
interest; or knowingly takes or receives any such paper,
certificate, instrument, advertisement, or list so brought,
deposited, or transported, shall be fined under this title or
imprisoned not more than two years, or both."

Now I'm no lawyer (I make an honest living) but if I read 18 USC 1301 correctly then if you get caught & convicted for mailing your cousin that newspaper ad for the Islamabad lottery where the grand prize is 2 chickens & a ferret then you can no longer legally own a firearm in the united States.

I know I've been sleeping better at night after I read that.

It's been said that importing an orchid can get you into the prohibited class regarding firearms. That seems to be the case. It's apparently enough probable cause for a search warrant (more on that incident can be found here & here). So bringing a flower into the country can cause you to legally lose the most effective means of self defense available.

Again, my slumber is sounder knowing those vile flower-mongers will never wield projectile weapons again.

I could go on but honestly it's time consuming & logically exhausting searching the u.S. Code. It's almost like the damned thing was written by lawyers, for lawyers. The point is that it's not merely axe-murderers who are prohibited from legally owning a firearm in the u.S. & I think most people would agree that the category encompasses too many folks who really aren't a danger to society. Of course there are the strict law & order types who assert that any violation of the law shows a lack of judgment & therefore just grounds for disqualification from owning weapons. I'll try to get to those folks in a bit.

What sticks with most folks though is the question that started this post. "You want axe murderers to be able to walk into a store & just buy a gun?"

The obvious answer is of course no. But the problem I have is not the result (axe murderers not able to get a firearm) but the method of achieving it. The problem wouldn't be that he or she could legally purchase a gun after serving time for murdering someone with an axe; the problem would be that he or she is not still serving time for murdering someone.

All murders are not equal. I'll grant that. There could be some circumstances where a lighter punishment than life in prison is warranted. But I cannot fathom why we would be okay with letting someone out of prison in the first place that cannot be trusted with a firearm. If a person is released then in theory his debt to society has been paid & we should assume he's capable of possessing dangerous objects without going on a murder spree.

After all no law prohibits a convicted axe murderer from buying a car upon his release. Bleach & other assorted dangerous chemicals are not off limits. Hell, a convicted axe murderer can, on the day of his or her release walk into any hardware store & buy a friggin' axe! Yet somehow we're worried about it being okay for him or her to buy a firearm?

Laws prohibiting persons from possessing weapons do not prevent crimes; they encourage them. How? By creating a defenseless caste of people. The axe murderer wouldn't have any qualms about stealing a pistol or buying one from the black market if he intended to modernize his particular crime fetish. But the 65 year old man who got off with 3 years probation instead of the 5 years federal time for importing a verboten flower? Odds are he'd not think about obtaining a firearm. If anyone knew this & had criminal intent then our 65 year old flower fiend would be ripe pickins for a robber.

But let's suppose our 65 year old felon who liked forbidden flowers too much for the feds liking realized that he needed some sort of defense for his home. He procures a single barrel shotgun just in case someone breaks in. Well if someone breaks in & he uses it or if the cops otherwise find out then he's a felon in possession & in danger of jail time yet again. All for wanting to defend what's left of his life.

Yes; if we drop the prohibition on felons (as defined by federal law) possessing arms then there will be some very bad people who legally have guns. Axe murderers, rapists, child molesters, bank robbers & the like. But honestly, if they were not reformed do you really think a law that carries a few years jail time to back it up would make a dent in their plans to commit a capital crime such as murder?

I’m not saying that since some people will disobey the law then we should do away with it. What I’m saying is that since the law does not prevent folks with harmful intent from doing harm but it does prevent those without harmful intent from preventing harm by protecting themselves effectively then we should scrap the damned law & try a different approach.

"But it'd be one more charge to throw against them & keep them in jail longer." Well if that's the case then we should make it illegal to wear shirts. That way anyone caught wearing a shirt after he's committed some other horrible crime can have the book thrown at him. Course the problem would be that we all wear shirts & then it becomes a discretionary issue of who gets jailed. Much the same way the laws against owning & carrying arms are used, since I’d wager the majority of “weapons offenses” that lead to jail time are not committed by violent predatory criminals. But that’s what you get when you play that game; the ones you least seek to harm are harmed most while those you wish to be contained just aren’t bothered by the law.

The problem isn't not having enough to charge someone with; the problem is not having stiff enough penalties for the malum in se crimes. The answer is in reforming the sentencing guidelines as well as putting judges on the bench who realize containment, not rehabilitation is the key goal for those who are a legitimate danger to society.

OJ. Let's talk about OJ. Everyone knows he did it right? Well everyone except a jury of his peers. But let's say OJ wants a gun. He can buy one right now (well assuming California, in its infinite wisdom, hasn't banned the model he wants) despite everyone knowing he killed two people.

Now tell me are you more concerned about OJ legally buying a gun or about our fictitious (but based on real models) 65 year old flower felon buying a hogleg nice & legal like?

Most of you would be bothered more by OJ packing than a flower fence carrying a gun. But the way our laws are set up the exact opposite is the case; the feds are more concerned about any felon than they are about a person people just know murdered two others in an act of rage.

For the record neither one of them packing would bother me. That's the beauty of possessing arms - other armed people are my equals & do not have an automatic advantage. But even if I was unarmed for some unthinkable reason, the 65 year old man doesn't seem to have any harmful intent while OJ really doesn't need a gun to kill.

That's the harm of prior restraint laws - they punish the innocent far worse than the guilty. Someone intent on climbing through your window then killing & raping you (in that order) isn't bothered in the least by obtaining arms. Someone who had too much pot on him or who didn't do his taxes or who had ammunition in Illinois without his papers being in order or who imported the wrong kind of flower would be much more inclined to obey the law even when it disarmed them.

It would not be a crime free utopia if felons & other prohibited persons weren't proscribed in their possession of arms. But it would give a few people who had no harmful intent an option in case they were ever the victims of a violent confrontational crime.

The current law & any variation which prohibited people who are otherwise free in society from having arms prevent very few real criminals from being equipped enough to do their nasty work while preventing otherwise decent folks from protecting themselves.

Now let's look at a few cases from SCOTUS on the subject:

BARRETT v. UNITED STATES, 423 U.S. 212 (1976)

Barret held that a felon who did not cross state lines still was subject to the prohibited persons provisions of the GCA because the firearm (&/or ammunition) had crossed state lines & thus triggered the Interstate Commerce Clause's power. This is seemingly contradictory to a 1943 case, TOT v. U.S., 319 U.S. 463 & was mentioned in the dissent of justices Stewart & Rehnquist. Also mentioned by the majority opinion was UNITED STATES v. BASS, 404 U.S. 336 (1971) which found that a nexus between possession & interstate commerce must be proven in order to convict under the felon in possession law, but in Barret it was explained away as dictum.

So the current case law holds that it’s proper for congress to prohibit felons from possessing arms even if they are not engaged in interstate commerce or involved in any harmful activity.

There is a very compelling argument to be made that the Interstate Commerce Clause does not justify such congressional action as prohibiting a certain class of person from owning arms. I do believe there's an even better argument that the 2nd amendment explicitly prohibits them from performing such actions. But the courts aren’t exactly well known for their constitutional literacy or flawless reasoning.

The problem is one of conditioning. Even gun owners usually say they don't want those danged convicted axe murderers buying guns all legal like. It's simply hard to convince folks that any prior restraint is morally wrong when they've been conditioned to accept it for so long. Likewise politicians, who usually have the moral fiber of a desperate crackhead, don't want to be on the record for "arming axe murderers".

Pragmatically the law does more harm than good. No person who wishes to cause harm is really going to be hindered by it. Black market firearms are all around. But say for some reason it is harder to gain a firearm, there are many other items that can be used to cause harm & even death. Some are even more deadly than a firearm.

Who is hurt by the law are not the axe murderers, but the flower felon & others whose offense was not genuinely indicative of a predisposition to inflict unjustifiable harm. They are denied arms for their own defense because of a standard set by congress which congress arguably lacks the authority to impose.

It's just damned hard to beat a sound byte that says "candidate x wants to arm axe murderers".

Now to the law & order argument. As I mentioned above there are some folks who feel that any felony is indicative of a lack of judgment &/or respect for out laws & therefore it’s just to prohibit such persons from possessing arms.

A love for law & order doesn’t usually motivate such sentiments, but fear. The idea that a person would knowingly & willfully disregard some law scares the hell out of people. It doesn’t matter if the law is a prohibition on murdering children or a prohibition on importing orchids. It scares them that such a person might wield power; enough power to defy them, or what they feel is right..

”Do you really think a person who wrote bad checks & got convicted for it has good enough judgment to own a firearm?”

That’s another argument I’ve heard. The most effective counter-argument (imho) is this:

I cannot say they exhibited great judgment in writing numerous bad checks, but I can say I worry more about the judgment of those who would decide who gets to be armed & who doesn’t. Their crimes are in the past & do not harm me. The power for someone to judge whether or not I may exercise a Right does harm me, as well as society.

There are people I know of that shouldn’t be trusted with dull shiny objects. We all know such folks. But the problem is not in that one person being denied, but that someone would have such power to deny a person. Look at any place where there’s a discretionary permit system in place for firearms possession or carrying. You won’t have to look hard to see abuses of the system, or denials for folks who genuinely mean no harm & would do no harm except in justifiable self defense.

I’m a fairly stable person. I do have a nasty tendency to tell people what I think, even if what I think is that person is an ass. I also tend to run my mouth & not comply when I think a dictate is unjust. Because of those two things it’s very conceivable that someone who does not know me would deny my arms if it was within their discretion to do so. Despite my having been a very safe gun owner for decades.

Further look at what’s happened already. In 1938 we ceded to the feds (actually that socialist bastard just took it) power to prohibit violent felons from legally buying arms. In 1968 that changed to mere felons. In the late 1990’s that changed to include certain misdemeanors & restraining orders. Does anyone wish to bet that the next attempt will be for simple misdemeanors? How about “excessive” traffic violations? After all, if you can’t be trusted to operate a car safely how can you be trusted with a firearm?

By giving the government (or anyone for that matter) enough power to disarm someone who is otherwise free in society we make it easier for said government to disarm us. I mean you & me. That bothers me much more than any lack of trust in any person or persons who are among us in society. I’d much rather risk having the person whom I wouldn’t trust with dull shiny objects being armed as well as the recently paroled axe murderer than letting someone else (especially someone in government) get to decide who is worthy of being able to defend themselves effectively. In the former state I at least have a fighting chance as I’m armed as well. In the latter I might piss off the examiner & be defenseless by law even though the axe murderer won’t be inclined to obey such a proscription if he wishes to continue his bad habit.

Making a mistake with the law is not a true indicator of violent or negligent dispositions. Now robbing a liquor store & shooting the clerk is a good indicator that such a person isn’t ready to meld with the masses. But by attempting to disarm the ones we shouldn’t let out in the first damn place we only disarm those without harmful intent.

It’s a hard sell, & not in the least because we’ve had this sort of law around for 70+ years in some form or another, but it has been & will be a chink in our armor if we continue to accept the idea that some folks are more free than others. Eventually that same precedent will be used to disarm someone you know whom you’re also positive had no harmful intentions or negligent leanings. Even worse it may one day be used against you.

Instead of backing laws that disarm felons we should back laws that keep the violent predatory types separate from society while allowing everyone who we deem safe enough to be free to actually be free.

So the Absolutist position on felons & firearms can be summed up thusly; if a person cannot be trusted with arms, he cannot be trusted in society. Any law that attempts to make exceptions to that, especially if based upon prior restraint, is not a good law in principle or practice.

If a person walks among us freely, then he should be able to defend his life from unjustified attack. If we deem him unsafe to defend himself then we should not release him into society.

Again though we have generations of condition & misapplied reasoning to counter. It's not an easy task, but one we must undertake. After all, the freedoms we preserve may very well turn out to be our own.

Posted by Publicola at April 11, 2006 05:07 AM | TrackBack

Amen, Pub.

My sentiments exactly.

Posted by: Jay G at April 11, 2006 10:39 AM

Excellent series. I agree with you 100%, and will gladly use your arguments and examples among those gun control folks that I seem to attract.

Thanks for the work that went into this endeavor, and please do keep it up.

Posted by: Darrin at April 12, 2006 09:25 AM

Very well said.

Your arguement is rock solid.

Someone is either free or not.

Posted by: 1894C at April 13, 2006 06:38 AM
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