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Invisiblejohnm214
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Are convicted felons people? A discussion of the Second Amendment
    #7886235 - 01/15/08 10:00 PM (16 years, 17 days ago)

From Sentencing Law & Policy:
http://sentencing.typepad.com/sentencing_law_and_policy/2008/01/are-scooter-lib.html
----


Here, in full, is the text of the Second Amendment: "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 meaning and application of this provision comes before the Supreme Court this year in the Heller case, and I think the case may result in a number of surprising outcomes. One such outcome that surprises me comes from the US government's brief filed late last week.

As detailed in this SCOTUSblog post, through the filing of this amicus brief, the "Bush Administration urged the Supreme Court Friday night to rule that the Second Amendment protects an individual right to have a gun for private use." Though this amicus brief is full of interesting points, I was taken aback by this assertion: "the Second Amendment, properly construed, ... does not provide any protections to certain individuals, such as convicted felons, who have never been understood to be within the Amendment’s coverage." In other words, it seems that the US government is arguing that "the people" referenced in the Second Amendment's text does not include any of the millions of Americans with a felony conviction.

Notably, the Bill of Rights uses the phrase "the people" in four other Amendments (the First, Fourth, Ninth and Tenth). I have never before heard a claim that all convicted felons are categorically denied the individual rights protected by all these Amendments. The Fourth Amendment, notably, speaks of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Supreme Court has never suggested that individuals, once convicted of a felony, thereafter cannot assert Fourth Amendment rights. (The Supreme Court has held that searches of prisoners and paroles can be reasonable even without any individualized suspicion; but such rulings are a far cry from suggesting that all convicted felons are no longer among "the people" who have rights under the Fourth Amendment.)

I find notable and telling the US government's need to take such a blunderbuss approach (pun intended) when seeking to limit the reach of Second Amendment rights. The government's brief confirms my instinct that, if an individual-right genie emerges from Heller, it may prove quite hard to get Second Amendment rights back into the regulatory bottle.
------

discus mofos


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Invisiblejohnm214
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Re: Are convicted felons people? A discussion of the Second Amendment [Re: johnm214]
    #7886253 - 01/15/08 10:03 PM (16 years, 17 days ago)

While some of the hippy pasifists amongst us may not care about the second amendment, it is worth noting, as has been done above, that the same "people" verbiage is used in other amendments, such as the much more popular first and fourth (free speech and right to protection from arbitrary search and seizure).

So is a person once done with parole, once off probation, and once out of jail, still afforded the rights of the first and fourth amendments? Do they no longer get to speak? To be safe from unwarranted searches?

Careful with how you discriminate against those unfavored rights, they're all tied together.


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Re: Are convicted felons people? A discussion of the Second Amendment *DELETED* [Re: johnm214]
    #7886778 - 01/15/08 11:54 PM (16 years, 16 days ago)

Post deleted by four20snakeman

Reason for deletion: drunk typing again.



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OfflineChemy
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Re: Are convicted felons people? A discussion of the Second Amendment *DELETED* [Re: four20snakeman]
    #7886817 - 01/16/08 12:05 AM (16 years, 16 days ago)

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--------------------
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Invisiblefastfred
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Re: Are convicted felons people? A discussion of the Second Amendment [Re: Chemy]
    #7886955 - 01/16/08 01:05 AM (16 years, 16 days ago)

Felons certainly can be denied rights. Imprisoning someone is certainly depriving them of their rights.

The question is weather felons are no longer "people" under the law.

The real problem is that a lot of laws are arbitrary and illogical. They lump someone who had a few pounds of weed in the same category as rapists, murders, and pedophiles.

Many laws and sentencing guidelines are in clear violation of the constitution. You have the right to be punished fairly because of the 8th amendment. The 8th amendment states that your punishment shouldn't be excessive and should be in proportion to the severity of the crime.

Thus even if some victimless crime is illegal the punishment should be minimal. Someone who drives 50 mph down main street, taking everyone's lives in their hands, is only liable for a couple hundred dollars in fines, yet someone caught with a few pounds of weed, which has no possibility of ever harming anyone, could be sentenced to many years in prison. That is clearly unconstitutional according to my reading.


-FF


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Invisiblejohnm214
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Re: Are convicted felons people? A discussion of the Second Amendment [Re: Chemy]
    #7887071 - 01/16/08 02:18 AM (16 years, 16 days ago)

chemy, I've only been sorta following that case, and can't make any predictions at the moment, but your question regarding the second amendment is basically that the states have to honor it.  The amendments provide a floor of rights generally, which in some cases, states can implement in different ways to the same effect (i.e. different ways of establishing due process when the govenrment wants to take your shit, provided you do get due process) but they cannot usurp the fed. const. rights.

The fourteenth amendment has been interpreted to make all states bound by the bill of rights, and so if this case decided that felons have a right to guns, then the states would have to honor that.

And fred is right about the govenrment can take your rights.  This case only concerns those who've served their sentence.  Prison is a violation of a normal person's rights, but it is permissable provided the constitutional safeguards are met.

The issue is when you are done w/ your sentence, can the government still prohibit you from owning a gun?  I would think no.  In my reading, the second amendment is clearly and individual right, though the supreme court hasn't endorsed this yet, and if your not serving a sentence (i.e. probation, paroll, all your ifnes are paid) you have the same rights everyone else has under the constitution.

If the court rules felons do have a right, I'd expect states to try and get around this by putting people on extended probation for those crimes the government really doesn't want you to later lawfully have a gun.  But this is still better than the situation now, where the feds are telling the people that irregardless of state law you can't own a gun w/ a felony, which is bullshit.

The states should handle criminal sanctions for most crimes (unless clearly interstate or otherwise concerning the feds) and should make thier own laws.  It would just be a shame though if they made more people serve longer sentences on parolle or probation just to prevent them from having a gun, and then can catch them twenty years down the line for having a beer or smoking a joint.  I would hope the financial burden would disuade the government from doing this, but they could always put people on an inactive probation where they simply give you a drug test once every couple of years to fuck you up...


we're turning into a nation of imprisoned people :sad:


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Invisiblejohnm214
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Re: Are convicted felons people? A discussion of the Second Amendment [Re: johnm214]
    #7887072 - 01/16/08 02:21 AM (16 years, 16 days ago)

and ya... I'd comment more on this case but my computer's fucking up and I'm going to have to have it worked on, so I'll not really be posting for a week or so unless I do so from school... but glad people were interested in this topic :smile:


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OfflineSeussA
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Re: Are convicted felons people? A discussion of the Second Amendment [Re: johnm214]
    #7887321 - 01/16/08 05:57 AM (16 years, 16 days ago)

> we're turning into a nation of imprisoned people :sad:

All in the name of national security.


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OfflineKaptKid
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Re: Are convicted felons people? A discussion of the Second Amendment [Re: johnm214]
    #7887485 - 01/16/08 07:42 AM (16 years, 16 days ago)

So I may not be a people. It takes persons to have  people, so I may not even be a person.


This rant may be cont. later.


  :sun:


--------------------
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Invisiblefastfred
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Re: Are convicted felons people? A discussion of the Second Amendment [Re: KaptKid]
    #7888038 - 01/16/08 12:21 PM (16 years, 16 days ago)

Felons aren't allowed to vote, so perhaps they really aren't "people" under the law after all.


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OfflineChemy
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Re: Are convicted felons people? A discussion of the Second Amendment *DELETED* [Re: fastfred]
    #7888082 - 01/16/08 12:38 PM (16 years, 16 days ago)

Post deleted by Chemy

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God bless you all and I hope you receive the help you need to turn away from your lives of sin.

Mushrooms and drugs make you gay, you can reverse this homosexual condition with rehab, get help! Stop being gay!


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