Focus shifts in gun rights debate
Jon Roland

The decision of the Bush Administration to accept that the Second Amendment protects an individual right to keep and bear arms shifts the focus of the debate on firearms regulation from interpretation of the Second Amendment to interpretation of the other clauses of the Constitution that affect such regulation.

The position appeared as footnotes in briefs arguing against granting the appeals of two cases to the United States Supreme Court, issued in a statement by U.S. Solicitor General Theodore Olson, and thought to represent the views of Attorney General John Ashcroft. Olson argued that the U.S. government may restrict the right of "unfit" persons to purchase, possess and use "firearms that are particularly suited to criminal misuse".

The first case, U.S. v. Emerson, was a federal criminal prosecution against Timothy Emerson for possession of a firearm, based on the fact that a Texas divorce court had issued a routine protective order not to approach his estranged wife. The federal statutes prohibit purchase or possession of firearms by persons thought to be unfit, based on such evidence as conviction of a crime punishable by incarceration for more than one year, a history of mental disorder or substance abuse, or a history of having been subject to a protective order. The indictment against Emerson was quashed by a federal district court judge, Sam Cummings, on the ground that Emerson had a right to keep and bear arms which made the federal statute unconstitutional. However, the indictment was reinstated by the Fifth Circuit Court of Appeals, which agreed Emerson had the right, but that such a right could be subjected to reasonable regulation.

The second, Haney v. U.S., is an appeal of a conviction of John Lee Haney of Oklahoma for possession of two "machine guns".

The basic issue is, what authority, if any, does the U.S. government, or for that matter, a state government, have to prohibit purchase, possession or use of a firearm, and enforce that prohibition with criminal penalties.

Most laypersons think that a constitutional "right" is something that may not be restricted, or in the legal term, "disabled", by legislative or administrative regulation or taxation, but only by a court, in an individual case, in which either the exercise of the right conflicts with the exercise of a right by another person, the person is adjudged mentally incompetent, or as punishment, prescribed by statute, for a crime for which he has been convicted and sentenced in a trial. This belief is based on the Fifth Amendment, which states "No person shall ... be deprived of life, liberty, or property, without due process of law; ...", and on the language of the First Amendment, "Congress shall make no law ...", and of the Second, "... shall not be infringed."

The problem is that the exercise of a right may be relabeled as something that is subject to regulation or taxation, and regulated or taxed under that other label. This had led to a variety of rules, sometimes called "strict scrutiny", for deciding whether some regulation or tax imposes an "undue burden" on the exercise of a right.

There is also a problem with the definition of "due process". With the acceptance of keeping and bearing firearms as a right, the U.S. government is in the position of maintaining that it may legislatively disable, and criminally prosecute, the exercise of one right, call it A, on the basis that another right, call it B, was disabled in a proceeding in a court of another sovereign. That might work if A were a "privilege", granted at the discretion of the government, but there is a problem with legislatively declaring that some people are "unfit" to exercise a "right", or making an exception for firearms "particularly suited to criminal misuse".

The disablement of one right A may be included within the disablement of another right B. For example, if B is disablement of the right of liberty for ten years, then a disablement A of the right of liberty for two years could be considered included within B, provided that it begins at or after the commencement of B and ends at or before the ending of B, but not if, say, it commenced nine years into the ten-year period of B. On the other hand, if the grounds for A were different from B, so that if the disability B were removed, the disablement A would continue in force, then A, if not imposed as part of the final order of the court, as punishment for a crime, would be constitutionally prohibited as ex post facto.

Now suppose the State of Texas made it illegal, punishable by ten years in prison, for any person to live, work, or do business in Texas, who had ever been convicted of a crime punishable, but not necessarily punished, by a year or more in prison, or who had a history of mental illness or drug abuse, or had been the subject of a protective order -- in any other state or nation. Would that be due process -- under the Texas Constitution, or under the 14th Amendment to the U.S. Constitution? If not, then how can it be due process for the federal government to prosecute someone for exercising a right based on similar profiling of the legal history of a person in a state court?

In a criminal trial the court hears a petition from the government to do three things: disable one or more rights of the accused, impose a penalty allowed by that disablement, and order someone to carry out the penalty, which is prescribed by a statute for the class of offense with which the accused is charged. The standard of proof is "beyond a reasonable doubt", and the accused has a right to a unanimous verdict by a jury of twelve persons, randomly selected from the community. We say the accused is "convicted" when the verdict is "guilty", but does that verdict disable any rights? No, only the final sentencing order of the court can do that. There can be some argument among the parties over what the punishment should be, but at some point, the sentence is final, and may not be re- opened to expand the disablements or increase the penalties imposed.

It is sometimes said the accused "loses all rights" upon conviction, but clearly this is not true. First, constitutional rights are never "lost". If they were, the government couldn't restore them, because the government is not the source of constitutional rights. The exercise of rights may be "disabled", and such disabilities "removed", but it is the final order of the court, not the verdict, that does that. The verdict authorizes the judge to issue the final order, but by itself it disables no rights, and imposes no penalties.

But if the rights are only disabled by order of the court, then how can rights not expressly disabled by a final order of a court be disabled by legislation, so that it becomes a crime to exercise them? If the right were included in the right disabled in the final order, perhaps, but is the right to keep and bear arms an implied part of the right of liberty that might be disabled by a sentence in a trial, or by an order in a competency, custody or protective hearing? It is constitutional to disable the right to possess a firearm while in actual detention, or on probation, but after the disablement has expired, if the right to possess a firearm was not expressly disabled in the sentencing order? Never mind that there might be a statute prescribing that the right is disabled upon "conviction" of a crime "punishable" by imprisonment. The statute might prescribe that the disablement be made in the sentencing order, but if the judge does not include that disablement expressly in the sentencing order, may the government effectively re-open the case and disable a right the judge didn't? Would that not be constitutionally prohibited ex post facto? Would the re-opening not be constitutionally prohibited double jeopardy? Is disablement of the rights of a class of persons based on their history in court, other than on what is expressly stated in a court order, not a constitutionally prohibited bill of attainder?

Now that the U.S. Department of Justice accepts that it is an individual right to keep and bear arms, it is time to treat that right in a way that is consistent with the way we treat all other constitutional rights. It is time to argue for rights labeled by a letter, and forget about what the letter might stand for, to arrive at a consistent jurisprudence.