In the course of an article on right-wing judges upset with the Supreme Court's activist ruling in Heller v. D.C., which struck down D.C.'s gun ban and found for the first time an individual constitutional right to own a gun:
Judge [ J. Harvie ] Wilkinson [III] saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by [felons or] 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.”
Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”
[Heller's lawyer, Robert A.] Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”
I think Scalia's little aside about "longstanding prohibitions" is going to come back to bite him. (Weirdly, the NYTimes article misquotes the decision by dropping the "felons" part. PDF of the decision is here.) The part about laws imposing conditions and qualifications on the commercial sale of arms, for example. Is there a federal licensing requirement for businesses to sell books? No, because the Free Speech clause of the First Amendment would prohibit it, because the seller of books stands in the shoes of the reader of books in terms of the constitutional right to expression. Why, then, must a seller of guns be licensed to sell guns, if the buyers of guns have a constitutional right to buy them?
Also, if someone is adjudicated mentally ill once, and then is treated and has successfully controlled her illness, why is she still subject to a ban on ownership of guns? What other illnesses deprive people of their fundamental constitutional rights? Would a law depriving diabetics of the right to buy candy be constitutional?
But what I really want to focus on is the part about felons. If Heller stands for the proposition that outright bans on the ownership of guns violates the Second Amendment, why would a lifetime, complete ban on gun ownership by felons and the mentally ill be constitutional? Are there other fundamental constitutional rights that we deprive convicted criminals of for their entire lives?
Sometimes, we do. If the crime warrants a sentence of life in prison, then that person's civil liberties are restricted for their entire life. Also, if there is a nexus between the exercise of the right and the crime committed, we sometimes deprive convicted criminals of that right even after they are released from incarceration. For example, someone convicted of luring children online to meet for sex might be released from prison only on condition that he not use a computer to access the internet. That sort of lifetime, complete ban on the Free Speech right to use a medium of communication seems reasonable.
Similarly, it seems likely that after Heller a court will still uphold a lifetime ban on gun ownership for someone who has been convicted of a violent crime with a gun. But many states' prohibitions on gun ownership apply to a wide range of felonies, not all of which involve guns or even violence. Pennsylvania's statute, for example, says:
A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
61 Pa. C. S. sec. 6105(a)(1). Subsections (b) and (c) contain a long and varied list of crimes, behaviors and statuses which merit the loss of the right to own a gun, each of which might be worthy of their own law review article. They include theft, burglary, receiving stolen goods, multiple instances of driving under the influence, and most importantly in terms of numbers, drug crimes.
About 5.3 million Americans have felony convictions (pdf). To the extent that their crimes did not involve guns or even violence, how can they constitutionally be deprived of their fundamental right to own a gun without due process and an individuated showing by the state that there are grounds for such deprivation? No matter what dicta Justice Scalia throws around about "longstanding prohibitions", I think there is no principled distinction between the complete, lifetime ban on gun ownership for all civilian residents of D.C. and a complete, lifetime ban on gun ownership for all persons convicted once of felony drug possession. Eventually, a court will find that felons have the right to own guns under Heller, or the Supreme Court will have to cabin Heller's logic arbitrarily.
Either way, I just hope Scalia is still around to have to face the consequences of his own actions.
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