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Caron v. United States, 524 U.S. 308 (1998)

Commentary by Jon Roland

This case demonstrates how politics or public policy, without a grounding in constitutional fundamentals, can yield a morass of contradictions and unjust outcomes. It arises out of the 1986 Firearms Owners Protection Act, as amended, which forbids a person convicted of a serious offense to possess any firearm, 18 U.S.C. §922(g)(1), and requires that a three-time violent felon who violates §922(g) receive an enhanced sentence, §924(e). However, a previous conviction is not a predicate for the substantive offense or the enhanced sentence if the offender’s civil rights have been restored, “unless such … restoration … expressly provides that the person may not … possess … firearms.” §921(a)(20) (emphasis added). The petitioner in this case was convicted under the Act for possession of some rifles and shotguns, even though on one of his original convictions he had had his civil rights restored by operation of a Massachusetts law that permitted him to possess rifles but restricted his right to carry handguns. The decision of the Court was to uphold the conviction and longer sentence, on the argument that, although he had a right under Massachusetts law to possess the rifles and shotguns, the disability for carrying handguns made the federal charge applicable under the above "unless" clause, even though he didn't have any, so that if there were any limitations on firearms ownership remaining after a restoration of rights, the federal law prohibited such person from possessing any firearms. That is, even if the state specifically said the person could have certain firearms, the federal law would not recognize that. Justices Thomas, Scalia, and Suter dissented on this argument, but neglected to examine the more fundamental issues that invalidate the entire Act.

The case arose from enforcement of The Brady Handgun Violence Prevention Act, 18 U.S.C. §§ 921- 22 (1994), a political compromise in which the NRA accepted and supported its "instant check" system by the FBI on prospective purchases of firearms, forbidding purchases to certain categories of persons, as an alternative to new gun laws. The FBI has claimed that this system has prevented sales of firearms to hundreds of thousands of "felons" and other "dangerous persons", but what seems like a good public safety outcome is often unjust, besides being unconstitutional using the criteria and methods on which the sales are rejected. Where political compromises are involved, constitutional principles tend to be compromised along with the policy preferences, making moot the presumption of the constitutionality of legislation.

Before we examine the constitutional fundamentals, however, let us examine some the difficulties of defining a class of "felons" or "serious offenders" or "dangerous persons" whose rights to keep and bear arms are to be legislatively disabled:

  • "Felons" are not always violent people who would misuse a firearm. Some laws are drafted so broadly that penalties that meet the simplistic definitions used in the 1986 Firearms Owners Protection Act are imposed on widely different behaviors. Despite the fact that the Act specifies "violent" felonies, the enforcement of the Act has considered all felonies "violent" just because they are "felonies".
    • Lewd behavior is a "felony" in some states, but can include anything from relieving oneself in the wrong place, to social protest, to topless sunbathing, to flashing.
    • Pornography is a felony by some local standards, but what is pornographic changes. The term has been applied to books now considered classics, to classical art such as naked Greek statues, or to parents who innocently took pictures of their children as naked babies.
    • In many states gambling is a felony, depending on the game played and the amount bet.
    • Impregnating a woman, even if one later marries her, or even nonmarital cohabitation, can be a felony in some states.
    • Procuring an abortion was once a felony in most states. If one did it when it was illegal and was convicted, one would be a "felon" for the purposes of the federal Act.
    • Income tax evasion, or filling out government forms incorrectly, can be a felony. So can donating too much money to a political campaign, defending oneself from attack by a dangerous animal that happens to be a member of an endangered species, filling in a part of one's backyard that some bureaucrat decides is a "wetland", and some types of illegal dumping. Many of these laws do not require criminal intent.
    • Many states have similar names for crimes, some of which are felonies and some are not. Larceny "over" a certain value may be a "felony", and "under" that value a "misdemeanor", but the value varies from state to state, and even within a state, the laws and values may change.
    • Penalties for the same offenses have often increased from one year to the next. Conviction of drunk driving in Massachusetts in 1993 would not have disqualified one from having a firearm, but would have done so beginning in 1994.
  • Although the Brady Act requires the FBI to destroy the records of checks, that provision is being ignored, and the "instant check" system establishes not just a national gun registration system but a national dossier and tracking system of all citizens. Previously forbidden from maintaining dossiers on individuals unless they were the subjects of a criminal investigation, the federal government is now compiling massive amounts of information on everyone. Not all of that information is correct, yet people are being prosecuted on the basis of that incorrect information.
    • Each state has different laws and standards. There is no uniform labeling of crimes or characterization of offenses as misdemeanors or felonies. In many states, the older criminal records are not in good order.
    • Until fairly recently, all records were kept by hand locally. Different courts kept their records in different ways. There were differences in the way judges handled cases.
    • Many states have methods which allow the judge to impose court supervision without giving the accused a criminal record. Terms such as "pre-trial diversion," "pre-trial probation," "continuance without a finding," "placing on file," "conditional dismissal," and "suspended finding," describe dispositions which do not result in giving the accused a criminal record. Because judges believed nothing more than a fine would result from such dispositions, they were quick to impose them without much thought to the guilt or innocence of the accused.
    • In some areas, records of closed cases have been destroyed leaving only cryptic entries describing the charges but not the disposition of the case. When the NCIC check is conducted, it frequently turns up these partial records. The "instant check" FBI staff assume the worst, even though the records were ambiguous.
    • Although not authorized by law to do so, the "instant check" also looks at the NCIC records of arrests. If no follow up entry was made in that data base indicating what happened after the arrest, the government tends to treat the reported arrest as if it were a conviction. The citizen is then forced to prove he was not convicted.
    • There is no time limit on convictions. A check could turn up a record 60 years old. Tracking down older public records to establish nonconviction or to correct erroneous information can be very difficult.
    • A criminal conviction remains forever unless one is pardoned, has the record expunged, or one lives in a state that automatically expunges a record on the passage of time. Most states do not automatically expunge records, and some that are supposed to do so, don't.
    • Some states seal records after a period of time. The sealing of a record does not remove the conviction, it simply hides it from the general public, and perhaps from the person convicted. If one knows or suspects he may have a sealed record, he should consult with his attorney before answering any governmental questionnaire that asks about convictions.
  • Court interpretations of the Firearms Owners Protection Act have resulted in serious problems.
    • For a time, the federal government refused to recognize state pardons of people with felony convictions and refused to recognize the state classification of a crime as a misdemeanor if the potential penalty was greater than two years. This led to people who committed offenses which were misdemeanors under state law being prosecuted under federal law as though the state offenses had been felonies.
    • People who had received pardons or who had their right to own firearms restored under state law acquired firearms in good faith, believing they were in compliance with the law, only to be prosecuted by the federal government as felons in possession of firearms. To avoid this the Firearms Owners Protection Act was amended to provide that, "Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction under this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."
    • But this provision has been interpreted by a number of federal district and circuit courts in different and conflicting ways.
      • One argument was that the rights were restored or limited under federal law to the same extent they were restored or limited under state law. This was the argument favored by the dissenting opinion in the Caron case.
      • The other argument was that a restoration of rights had to be full. If any limitation was placed on firearms ownership, the "unless" section applied. This was the argument that prevailed in the Caron case, the basis for which was a Massachusetts law that restored a person's right to own rifles, shotguns, and handguns five years after a conviction for a felony, but not his right to carry handguns outside his home.[1]
  • The other categories, not issues in Caron, such as persons with a "history" of "mental disorder" or "alcoholism", or the recently added "domestic violence" or "subject of a protective order" provisions of the Lautenberg Amendment to the Act, present similar difficulties of definition, different state and local standards, incomplete, incorrect, or misleading records, and uncertainty for a reasonable and law-abiding person as to whether one of the categories applies to him.
    • Many persons are routinely required to have a mental examination, without any indication of mental disorder, yet the fact of the order of commitment or examination represents a "history" that could be used to make possession of a firearm a federal crime.
    • In most states, the results of medical examinations, but perhaps not the fact of them, are sealed under privacy laws and not available for reporting or inquiry without a court order, preventing the subject from being able to establish that the result of the examination was that he had no disorder.
    • Some persons cooperate in getting a mental health examination without ever knowing there is a court order.
    • Mental health examinations can include those made of unruly children who later turn out fine.
    • There are many kinds and degrees of alcoholism, most of which do not result in violent behavior, and many alcoholics completely recover.
    • Angry spouses can falsely accuse their partners of abuse to strengthen their position in anticipated divorce proceedings, and create an arrest record for the subject, without guilt ever being decided by a court of law.
    • In many divorce proceedings, protective orders are routinely issued without any basis in reported violent behavior. Sometimes the order is just filed away and never served on the subject.

While all this might indicate a need to tune the standards, standardize the definitions, and improve state and federal recordkeeping, there is a fundamental problem that was not addressed in this case: legislative disablement of a civil right, even upon "conviction" of a "felony". The thesis of this paper is that it violates the constitutional prohibitions against bills of attainder and ex post facto laws, and the requirement for due process, and that this case was wrongly decided, as was the earlier case of Lewis v. United States, 445 U.S. 55 (1980).

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.

Let us first consider 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?

Due process 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.

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.

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.

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.[2]

Notes:

1. The preceding list of points borrows heavily from an article by Karen L. MacNutt in Gun Week magazine.

2. See also Lewis v. United States, 445 U.S. 55 (1980) and the commentary by Jon Roland at http://www.constitution.org/ussc/445-055jr.htm.


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