LEWIS v. UNITED STATES, 445 U.S. 55 (1980)
Commentary by Jon Roland
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
Article I, Section 10, Clause 1, says:
No State shall ... pass any Bill of Attainder, ex post facto
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
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
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
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
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