For the life of me, each time I read the 2nd amendment I keep skipping over the "convicted felons can't own guns" clause. The whole idea of the legitimacy of background checks is to keep guns out of the hands of felons. But....I've never read where felons were barred from owning guns.
Hmmm...is that part of the militia clause? Maybe. But felons are not generally barred from military service (I looked it up just to be sure) and more importantly felons are not exempted from the draft.[1] That's right. The gubmint can force you to carry a gun even if you are a convicted felon which means that it considers felons part of the body of people that can be called upon if we were ever invaded. And isn't one of the purposes of the militia to repel invasions?
Now I get why anyone in jail or prison can't have a firearm. But there are all sorts of rights that people lose while in prison. There is no right against "unreasonable search and seizure" while one is in jail or prison. But once release, all of those rights are restored. So....why not one's second amendment rights? I understand the "logic" from a "we just don't want criminals to have guns" argument. Okay. Then change the constitution.
I did a little bit of research before writing this post. The case D.C. v Heller, which was not about whether or not barring felons from owning guns, does address it in dicta. (Dicta is stuff in an opinion that's interesting but isn't binding precedent). Apparently there was concern raised that ruling there was an individual right to own guns would mean felons could own guns. The Heller court stated that their ruling didn't cover that question. It also referred to an earlier case, Lewis v. United States that was about a felon being convicted for possessing a firearm, but that felon only challenged the felony conviction itself, not the underlying second amendment question.
Here is the footnote from Heller in its entirety. (Footnote 25 on page 53)
Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon
in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second
Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in
a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they
trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and
bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66,
n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the
basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not
argued.
So it seems like the constitutionality of whether or not a felon has the right to keep and bear arms has never been directly challenged in the U.S. Supreme Court. (If someone can think of an actual case, please post it.) Now I guarantee you that the overwhelming majority of Americans, including "conservatives" and including people who consider themselves constitutional "textualists" will tell you that barring felons from owning guns is both constitutional and reasonable. I have no argument for the "reasonable" point. But constitutional? It doesn't seem like it. If I'm wrong, show me how I am wrong with an actual constitutional argument. Seriously....somebody debunk me. This seems pretty far out there. If I'm wrong on this I want to know it.
[1] Interestingly enough you are exempted from the draft if you are confined but that's it. See: https://www.sss.gov/Registration/Who...Register/Chart Also during WW I felons were exempted. See: https://www.newspapers.com/clip/9313...ilitary_draft/
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