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:
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]
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 //constitution.org/ussc/445-055jr.htm.
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