How the creation of untold numbers of felonies has imperiled clear policy on felons and firearms:
As a matter of public safety, disarming felons has never done any serious good for society. The felons that we need to have disarmed in the first place are the sort who have no good business rejoining society. In fact, society would be better off demanding the permanent removal of such felons from society without any mercy as the ways that unrepentant violent felons could continue to wreck havoc on society are limited only by their imaginations.
Now here is where an interesting dilemma comes about: white collar criminals. Objectively speaking, there are white collar crimes that deserve execution. Surely if one could quantify the harm done to their victims by someone who commits serious and repeated fraud or identity theft, it would be as egregious as any armed robber, rapist or even a murderer. Does a man who wipes out 100 senior citizens' life savings in a clever, predatory scheme deserve to live anymore than a man who murders one of them? Objectively, no he doesn't. Yet society will not bring itself to execute this sort of felon because their action isn't as brutish as that of the more mundane, violent felon. This is the real weakness in our outlook on felons in general: we don't limit the label "felony" to crimes where society really would like nothing more than to see the perpetrator removed permanently, and we frequently show mercy to those who don't deserve it.
We shouldn't rely on the courts to fix this problem. The legislators need to start doing their job which includes reviewing and fixing the laws that are already on the books.
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.)Far more ridiculous felonies exist, such as felony not for profit copyright infringement that doesn't involve tens of thousands of dollars worth of goods being swapped between offending parties. There is also the relatively new felony act of breaking the encryption on DVDs that you have lawfully acquired in order to make, get this, a backup copy of the movie in case the original is damaged or destroyed. Surely that ranks right up there with inflicting serious bodily harm on another or laying waste to their property.
In all societies recognizing a right to arms, that right was limited to "the virtuous citizenry." In this, as in much else, our Founders looked back to the ancient Greek and Roman republics. There, every free man was armed so as to be prepared both to defend his family against criminals and to man the city walls in immediate response to the tocsin's warning of approaching enemies. Thus did each good citizen commit himself to the fulfillment of both his private and his public responsibilities.
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.
But the fact remains that people who have been convicted of serious criminal offenses have thereby lost their rights under the Second Amendment. They are subject to our laws against felons possessing firearms.
As a matter of public safety, disarming felons has never done any serious good for society. The felons that we need to have disarmed in the first place are the sort who have no good business rejoining society. In fact, society would be better off demanding the permanent removal of such felons from society without any mercy as the ways that unrepentant violent felons could continue to wreck havoc on society are limited only by their imaginations.
Now here is where an interesting dilemma comes about: white collar criminals. Objectively speaking, there are white collar crimes that deserve execution. Surely if one could quantify the harm done to their victims by someone who commits serious and repeated fraud or identity theft, it would be as egregious as any armed robber, rapist or even a murderer. Does a man who wipes out 100 senior citizens' life savings in a clever, predatory scheme deserve to live anymore than a man who murders one of them? Objectively, no he doesn't. Yet society will not bring itself to execute this sort of felon because their action isn't as brutish as that of the more mundane, violent felon. This is the real weakness in our outlook on felons in general: we don't limit the label "felony" to crimes where society really would like nothing more than to see the perpetrator removed permanently, and we frequently show mercy to those who don't deserve it.
We shouldn't rely on the courts to fix this problem. The legislators need to start doing their job which includes reviewing and fixing the laws that are already on the books.
I was talking about the whole felony thing today. My opinion is that the dollar level at which a crime becomes a felony needs to be seriously re-adjusted.
For example, a class 4 felony theft is anything more than $1,000 but less than $20,000. The question that I have is when was the last time that these were "indexed" for inflation? I am not sure that a guy who steals a couple of iPods should be sent up the river for 2-4 years.
Were this indexed for inflation, depending upon when this was codified, that range to make it a class 4 felony might be as high as $24,000 - $500,000 (1900 - 2006 numbers using the CPI from http://www.measuringworth.com/uscompare/ )
I doubt that the public would go for such a drastic increase, but it is interesting to note that our Founding Fathers saw crime very differently
I await with great fear and trepidation... :)
Corporal punishment would also do wonders to take care of these crimes. Imprisonment is far worse than corporal punishment for the lower class because generally it is hardest for them, above all other classes, to keep their jobs and make ends meet for their family during that time.
Two thoughts about the proliferation of felony crimes:
(1) When you make all crimes equally bad, you lose the ability to
distinguish between them. Thus the non-violent IP violator is lumped
in with the non-violent drug user and the violent mugger. You make
atonement for lesser sins difficult to impossible, and encourage
recidivism, for no other reason than the lesser criminal wears the
scarlet A for life.
(2) Is it possible that that some of the proliferation of felonies is
due to the fact that convicts lose one of their constitutional rights
in the process? And it so happens that the right that is lost is the
one right that is unpopular?
I blame it on "law-and-order" types. The more I have watched their rhetoric and actions, the more I've come to realize that "law-and-order" is a code phrase for "the harsher the punishment and more likely to dish it out, the better." In general, "law-and-order" types favor extremely retributive punishments, and tend to look the other way when the government looks like it's taking down criminals. They have no theory of justice, and I've even seen them try to back it up based on the Mosaic Law saying that God is harsh. Well, to a point, as anyone who has read the law books in the Torah knows that the standards of evidence and punishments for knowingly carrying out injustice are significantly higher in the Torah than most "law-and-order" types can stomach. I've been called an extremist by such people because I want to legislate the Bible's standards of evidence into our law when there is no compelling, objective evidence such as a video recording of the crime.
Moral relativism doesn't help things either. As we've lost sight of objective truth, one of the casualties has been the inability to hold others to a reasonably universal theory of justice.
Life's a bitch when you are a bitch is the moral that story.
Felons being denied second amendment rights may have been viewed differently in 1776, when the Internet, cameras, and pizza shops didn't exist, but that doesn't apply to quite a few of the felons of the modern era. I specifically work for sex crime law reforms, and one major problem I see is that a felony sex offense with no irresponsible use of weapons or even of force involved nevertheless result in the wholesale stripping of the right to bear arms. It is somewhat understandable when someone robs a bank using a firearm or injures another person intentionally with a firearm is stripped of this right, as they have shown that they cannot responsibly handle possession of a firearm and therefore should be restrained, at least temporarily, from possession of a firearm. However, felony possession of child pornography (a surprisingly easy crime to be charged with and even convicted of; look up the case of Kelly Hoose) has nothing whatsoever to do with firearms! There is a substantial quantity of sex offenders who have been convicted of non-violent sex crimes, not reoffended (for decades in some cases), and are married with children.
How do we justify telling a father who never misused a firearm in his life that being convicted of having kiddie porn on his computer means that he doesn't get to "enjoy the privilege" of being able to protect his family? Non-violent sex offenders may in fact need a gun far worse than the average citizen, due to the alarming rise in the past decade of vigilantism (including murder) against sex offenders who have done no harm post-release.
It is positively absurd that non-violent felons are denied their Constitutional rights. When a felon comes off of probation or parole, their rights as a citizen are supposed to be restored. With a non-violent felon, how can one justify the second amendment restriction being imposed?
On a more general note, how does stripping any felon of second amendment rights stop them from acquiring a firearm illegally and committing the crime anyway? The same flawed logic behind sex offender residency restrictions and "predator-free zones" exists behind the felon gun bans: if you enact a law, everyone will follow that law. It doesn't work that way, and never will. If a criminal wants to commit a crime, a law written on a sheet of paper in a filing cabinet somewhere at the Capitol won't do much to hold them back from making it happen anyway.
It's a classic case of the cure being worse than the disease.
These laws also obscure the fact that many of the felons that we don't want owning guns are men and women who should never be out of prison again. I remain unconvinced that anyone who has raped (in the hold them down, threaten with violence sort of way), sexually molested a child, robbed someone at gun point or committed some other violent or depraved offense should be let out of prison. Many of them should be executed for their offenses, as their behavior shows a marked tendency to prey on their fellow man; taking away a gun via fiat and blustering wont' make them less of a potential risk.
And, as you hinted, there is a tendency to not face up to the fact that there are a lot of patently absurd felonies like trading a few dozen movies online, or selling some cocaine to a willing buyer. These are not "felonies" in the sense of the traditions of Common Law or the principles of our founding fathers.
The only argument that need be issued for the release of even violent offenders, rapists, etc. is that people are rarely ever static beings. One crime does not necessarily show a "marked tendency to prey on their fellow man." Three crimes, perhaps, but there are far too many first-time AND one-time-only felons on record to argue that "once a criminal, always a criminal." If our justice system wasn't so screwed up, it might be different. Remember that in the modern era, the majority of criminal cases end up getting "plead out" rather than going to an actual trial and getting actual consideration from a judge and jury. Being convicted of a crime no longer means that you actually did it; if you have to choose between a "sweet deal" of 12 months probation, or the risk of a jury interpreting the facts differently or being convinced by a zealous prosecutor that you're an evil person who has nothing better to do than harm others (along with all the public slander you [legally] receive in the process), what choice do you make?
So part of the problem is also that conviction no longer equals actual guilt. We've obscured what guilt is. Now it's not just guilt; it's a way of minimizing risk. The courts have become a "bear market!" And I lament the fact that I even have to type this.