This case provides a good example of bad law. It appears to be the result of poor argument and a long train of bad precedents that only confused the members of the Court and led them into tangles of sophistry that could have been avoided by returning to constitutional basics.
The issue here is whether Congress has the power to disable the right to keep and bear arms for a class of persons defined by having been convicted of a felony, or even only indicted on a felony charge, without a specific order of a court of competent jurisdiction upon a due process hearing of the issue of whether to disable that right, based on the conviction.
The members of the court seemed to have been divided mainly on the question of whether the person convicted had adequate counsel, that is, on whether the original conviction was constitutional, and might be overturned on appeal. That is not the issue, and to argue that issue is to be unclear on the fundamental concepts of due process and the constitutional prohibitions against bills of attainder and ex post facto laws.
Article I, Section 9, Clause 3, says:
No Bill of Attainder or ex post facto Law shall be passed.
Article I, Section 10, Clause 1, says:
No State shall ... pass any Bill of Attainder, ex post facto Law, ...
The Second Amendment to the Constitution for the United States says:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The Fifth Amendment says, in part:
No person shall be ... deprived of life, liberty, or property, without due process of law;
Finally, the Tenth Amendment says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
To begin the argument, we first note that there is no provision of the Constitution or amendments to it that say "the rights to life, limb, liberty, or property shall not be infringed". Does that mean that by due process of law, all those rights except the right to keep and bear arms may be deprived? Logically, if the Second Amendment had been ratified after the Fifth, it would indeed be an exception. But the ten amendments of the Bill of Rights were ratified at more or less the same time, so is the right to keep and bear arms an exception, or is it included within the rights of life, liberty, and property? For the moment we will take the latter position, but leave the question open for later consideration.
That takes the argument to the Fifth Amendment. What rights are protected by it, what is due process, what does it mean to deprive a person of such a right, and what is a person?
First we examine due process. It is a judicial proceeding, not a legislative or executive proceeding. It begins with a petition to a court, and ends with an order granting or denying the petition, and perhaps with the execution of the order. In between are procedures to insure that the legitimate interests of everyone affected are protected from injustice. There are two main kinds of due process, a civil proceeding and a criminal proceeding. What distinguishes them is the kind of right that can be lawfully disabled by each. A civil proceeding may only disable a right to property. A criminal proceeding may also disable the rights to life, limb, and liberty. For convenience, all constitutional rights are grouped into those categories.
Something should be said about the "right to limb". It is mentioned only in the double jeopardy clause of the Fifth Amendment, together with life. Most other references are to "life, liberty, and property", and the Declaration of Independence used the somewhat more expansive phrase "pursuit of happiness" in place of "property", although they were considered synonymous by the Lockean-Jeffersonian social contract theory which is the basis for both the Declaration and the Constitution. "Limb" is a term of art, and the "right to limb" is the right to not have corporal punishment inflicted on oneself. So a criminal proceeding is one in which the petition is for death, imprisonment, corporal punishment, or deprivation of property for the benefit of the state, and a civil proceeding is one in which the petition is only for deprivation of property, either for the benefit of the state or for a private party.
So does this categorization cover everything that is sometimes referred to by the term "right"? No, these are constitutional rights, which include natural rights arising from the state of nature, civil rights arising from the social contract, and constitutional rights proper arising from the constitution. All of them are rights against action by government, not against action by private parties, and not for a share of some scarce resource. There can be no constitutional right for a sufficiency of some scarce resource, because a constitutional right can only be an equal right, and the only rights that can be equal are the rights to not have something done by government.
So what kind of right is the right to keep and bear arms? Life, liberty, or property? Actually, it is a composite of rights of each category. First, it is an implied right of life. A right, to be meaningful, must include the right to acquire and use the means to secure it, and that includes arms, for use in defense of ones own life. Now the Second Amendment mentions the Militia. What is the purpose of that? It is intended to recognize that a person has not just the right to defend himself, but the duty to defend others. That duty arises out of the social contract to mutually defend one another against abuse of rights, and it includes the duty not only to obey laws, but to help enforce them. Now liberty is also an implied right of life, because we need liberty to preserve and defend it, although it is also a right in itself, because it includes all those activities which make life worth living, that is, happiness. Property can be considered an implied right of life and liberty, since it includes the right to acquire, keep, and use the means to preserve and defend both, but it also a right in itself, since it includes the right to leave one's property to those one cares about, one's family, friends, or others one favors. So the right to [acquire and] keep arms [and ammunition] is a property right and the right to bear arms a liberty right, and both support the right to life and other kinds of liberty and property. But the liberty right to bear arms would be meaningless without the implied right to acquire and keep them.
By this argument, therefore, the disablement of the right to keep and bear arms is the disablement of a liberty and perhaps a life right, and not just a property right, and as such can only lawfully be done by a criminal proceeding, with all of its special protections, including the right to a unanimous jury verdict and the standard of proof beyond a reasonable doubt.
Let us now turn to the prohibitions against bills of attainder and ex post facto laws. Established precedents tend to define these terms narrowly, and discussion during the Federal Convention limited them to criminal disablements, but examined more carefully, they are actually just a complementary way to restate the requirement for due process in the Fifth Amendment, and include property as well as life and liberty. The Fifth Amendment says constitutional rights may only be deprived by judicial due process, and the prohibitions are against doing that by legislative process or executive process not based on a court order. Together, they emphasize that any disablement of a constitutional right must be by order of a court of competent jurisdiction upon petition and proof under due process protections of the rights of the defendant.
So could persons be deprived of their arms, considered as property, if there was just compensation? Yes, if there was some public need for the arms. But there is no power to prohibit such persons from acquiring more arms, if they can afford them, without a court order pursuant to a due process proceeding, and to disable the right to acquire arms, the proceeding would have to be criminal, not civil.
Returning to the issue in this case, how can Congress legislatively disable the right to keep and bear arms for the class of persons defined as those having been convicted of a felony, or even just indicted for one? It does so on the alleged authority of public safety, that is, a police power, and the power to regulate interstate commerce. But does that work? No, it does not. If it could, it would make the rights to due process and the complementary rights against bills of attainder and ex post facto laws meaningless.
First, there is no delegation of police powers to Congress, except within federal enclaves created under Article I Section 8 Clause 17. Second, while "regulation" may be considered "prohibition" of some modalities of something, the original meaning of the term is to make regular, and that implies there must be some modalities that are permitted. It is not a power to prohibit all modalities, and contrary to the opinion of CJ Marshall in McCulloch v. Maryland, 17 U.S. 316 (1819), the Constitution contains delegations of limited powers, not spheres of action within which the power of Congress is unlimited. Third, the original meaning of commerce included only commodities, and only the purchase or trade in such commodities that begins in one state and terminates in another, or is between a state and a foreign nation. It does not include trade within a state, and it does not include agriculture, hunting, mining, manufacturing, possession, transport, or use of anything. And "commerce" certainly does not include everything which has a substantial effect on commerce. That is simply ungrammatical. The power to regulate is not the unlimited power to do whatever it takes to achieve a regulated outcome. That could be used to authorize anything, even genocide. It is only the power to impose civil penalties on certain modalities of trade in commodities. If normal methods of inspection and imposition of such civil penalties are not sufficient to achieve a regulated outcome, then the government may not extend its power to do other things intended to do so.
The final point needs to be made clear. The Founders distinguished between delegations of powers to impose civil and criminal penalties, and considered the latter not to be an implied power of the former, but a distinct power requiring a distinct delegation of constitutional authority.
What the legislative branch can do is prescribe the penalties to be imposed upon conviction of a crime. Indeed it must prescribe some such penalties for it to be a crime.
To understand this point, let us conduct a thought experiment. Suppose someone petitions a criminal court to prosecute an accused person for some offense, say, "parting one's hair on the left", and he seeks the death penalty. The first thing he would have to do is get an indictment from a grand jury. Could he get one? Of course. The grand jury is not supposed to return a bill of indictment on a charge that is not authorized by a lawful penal statute, but they might be willing to indict a ham sandwich, so they might do it anyway.
So the newly authorized prosecutor asks for a trial date, and the defendant's counsel moves for dismissal on the grounds that there is no statute authorizing the charge. The judge is supposed to dismiss the case on those grounds, but suppose he doesn't. Happens all the time. So it goes to trial, and the defendant demands and gets a jury.
Now, could the jury convict the accused of parting his hair on the left? Sure it could. The accused admits he parts his hair on the left. There are plenty of witnesses with evidence that he does so regularly. Now, the jury is not supposed to find the defendant guilty of the offense, because, logically, to be guilty of an offense requires not only that he did it as a matter of fact, but that what he did is an offense of the kind he is being charged with doing, in other words, that it really is a criminal offense, an act which the constitution authorizes the legislative branch to pass legislation to prohibit, with criminal penalties for those convicted of doing it. So let's suppose the jury unanimously votes to convict anyway.
Now there is a verdict. The accused has been convicted. Has he been deprived of any rights by that event? No. All the verdict does is authorize the judge, or the jury itself if it has the power to prescribe the penalty, to set the penalty, and the judge to issue the sentencing order.
What does the sentencing order do? It does three things. First, it disables one or more rights. That is, it restricts their exercise. In legal theory, constitutional rights are never "lost" or "terminated", but only "disabled", and disabilities can be removed, whereas rights, since they don't come from government, but pre-exist it, could not be restored if ever "lost". Second, it penalizes, or imposes a loss of life, limb, liberty, or property that has been enabled by the disablement of the rights of the defendant. Third, it authorizes and directs an official to carry out the penalty. These three components may be collapsed into a few words, but an analysis of what a proper sentencing order does can always be resolved into these three phases.
So let's return to our thought experiment. The jury has brought a verdict of guilty, and thereby authorized the judge to issue a sentencing order. But the prosecutor has demanded the death penalty. Can the judge impose that penalty, even though neither the offense or such a penalty is authorized by law? He is not supposed to. He is limited to those penalties which the legislature has prescribed for that offense, and if there are no penalties, there is no offense, even if the defendant has been "convicted".
So let's assume the judge has finally looked up the statute which the defendant is accused of violating, and finds there is no such statute, or maybe it is only an administrative statute governing the proper grooming for government employees, with the only penalty being to fire them. Since the defendant is not a government employee, what does the judge do at this point? Sentence the defendant to death anyway? He had better not, if he respects the law. Of course, some judges don't. But what he is supposed to do is only impose the penalties authorized by statute, if any, regardless of what the prosecution is seeking.
So could the legislature prescribe as a penalty the disablement and deprivation of the right to keep and bear arms, as the penalty for some offense, or even for all "felonies", or perhaps all "violent" felonies? Yes it could. It could prescribe a penalty of, say, ten years in prison, and no right to keep and bear arms for life. But suppose the judge, either through mercy or incompetence, sentenced the defendant to ten years, but omitted to explicitly disable and deprive the right to keep and bear arms. If it's not in the sentencing order, can some prosecutor come back on an appeal of the sentence and get the right to keep and bear arms included in the sentence? In general, court rules and the law do not permit a sentence to be revisited and increased in this way, or offer only limited time for doing so. At some point, the sentence is final, and may not be further increased. If there was a mandatory sentence, and the judge did not impose it, the only recourse is against the judge. Nothing further can be done to increase the penalties imposed on the defendant.
So where does the notion come from that a defendant "loses all rights" upon conviction, rather than just those rights disabled and deprived in the sentencing order? Incompetent legal thinking, aided by the lack of political clout by convicted felons and a general public attitude of "let's get tough on crime", but it is unconstitutional.
So now we can see what the statute that is the subject of this case does. It legislatively imposes a criminal penalty (although it would make no difference if it was civil) on the class of persons convicted (or even just indicted) of a crime, in many cases retroactively, without prescribing it as part of what is to be imposed in the sentencing order. Logically, that is a violation of the requirement for due process and of the prohibitions against bills of attainder and ex post facto laws. It makes no difference that persons convicted or indicted for a crime might present a threat to public safety. So do law enforcement officials acting without lawful authority.
There is also a fundamental constitutional problem with officials of one sovereign imposing a penalty, either civil or criminal, based in whole or in part on the actions of officials of another sovereign. It is a violation of federalism and the separation of powers. Each branch and level of government is accountable solely to its own electors, and may not delegate authority to officials of another branch or level. In this case, what happens if the federal government convicts and sentences someone of the offence of carrying a firearm, on the basis of a conviction of a felony in a state court, and then the state offense is pardoned or overturned on appeal? It simply does not work, constitutionally, for the decisions of a state court to determine whether an act is a federal crime. That applies not only to state criminal proceedings, but to things like protective orders, competency hearings and commitment orders, indictments, arrests, issuance of licenses or permits, or any other official action.
This case should never have made it past the grand jury. The statute, and others like it, are unconstitutional, as are most of the precedents that led to the decision and opinions on both sides in this case.
1. See also Caron v. United States, 524 U.S. 308 (1998) and the commentary by Jon Roland at //constitution.org/ussc/524-308jr.htm.
Syllabus | Contents | Text Version