U.S. District Court: Some Felons Do Have Second Amendment Rights

On Thursday, the United States District Court for the Southern District of Illinois held that some felons have the right to keep and bear arms. Larry Hatfield pled guilty to a non-violent felony 28 years ago and wants his Second Amendment rights back.

In his decision, Judge J. Phil Gilbrert wrote . . .

Plaintiff Larry Edward Hatfield wants to keep a gun in his home for self-defense. But the Government bans him from doing so, because 28 years ago, Hatfield lied on some forms that he sent to the Railroad Retirement Board: a felony in violation of 18 U.S.C. § 1001(a). Hatfield later pled guilty to one count of violating the statute, an offense for which he received no prison time and a meager amount in restitution fees pursuant to a formal plea agreement with the Government.

Now, Hatfield brings this as-applied challenge to 18 U.S.C. § 922(g)(1)—the statute that bans him from owning a gun—on the grounds that it violates his Second Amendment rights. Hatfield embeds his argument in United States v. Williams, 616 F.3d 685 , 692 (7th Cir. 2010), which instructed that “[the Supreme Court’s decision in D.C. v. Heller, 554 U.S. 570 (2008)] referred to felon disarmament bans only as ‘presumptively lawful,’ which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge.” If there is any case that rebuts that presumption, it is this one. So for the following reasons, the Court GRANTS summary judgment in favor of Plaintiff Larry E. Hatfield.

Judge Gilbert didn’t have any kind words for the government’s argument in the case . . .

[T]he Government—instead of focusing on a narrow class of as-applied challengers—rests their position on the broad idea that since felons have shown a “manifest disregard for the rights of others,” the Government may immediately strip them of their Second Amendment rights. The Government seems to think this is the case even if they cut a plea deal with the felon that recommended zero days in prison, like they did with Hatfield.

It is absolutely impossible to reconcile the Government’s positions here that (1) a specific felon is so harmless that the felon does not need to go to prison for their felony conviction, but also (2) the felon is so dangerous that they should be stripped of their right to own a gun and defend their home. This type of logical inconsistency shows that the Government is not taking the Second Amendment seriously. The Second Amendment has to mean something as a matter of law, policy debates aside. Overbroad policies ignoring a constitutional amendment are inexcusable.

The problem stems from the ever-expanding list of felonies an individual can be charged with. Felonies are defined in federal law as crimes for which a person may be imprisoned for more than a year. There are so many federal felonies that treatises and books have been written about the impossibility of living in the United States without committing felonies.

At the time of the founding, there were only nine crimes that were considered felonies. They were murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem, and burglary.

Government has expanded the list to many thousands of regulatory crimes. Many of the arcane gun laws across the nation, particularly federal gun laws, make relatively minor regulatory crimes felonies.

Sell a gun to another person who lives in a bordering state and it may be a federal felony, even if the other person can legally own and buy the same gun in his state. This creates a regulatory reign of terror. People are discouraged from exercising their rights because they might be inadvertently violating federal law.

Prosecutors can go after individuals and work to “find the crime,” instead of prosecuting crimes they know have been committed. Ayn Rand summed up the process well:

“Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.”

Judge Gilbert’s decision is a step away from the current regulatory tyranny. In supporting the Second Amendment, Judge Gilbert emphasizes that the Second Amendment means something. It shall not be rendered toothless and impotent by interpreting it out of existence.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

comments

  1. avatar sound awake says:

    non violent felony…

    28 years ago…

    clean record since then…

    probably the correct ruling

    1. avatar Art out West says:

      “probably the correct ruling”

      No, it is clearly a correct ruling.

  2. avatar Gun Free School Zones are a crime against humanity says:

    A glimmer of common sense gun safety?

    1. avatar neiowa says:

      Just wait until the 9th Circus gets their hands on a similar case.

      The “problem” is the eagerness of the fed to plea bargain away some actual felonies. Including violent. There are antisocial people that should be stripped, with due process, of firearms.

      1. avatar Mikial says:

        If a person is so dangerously violent that they shouldn’t be allowed to own a gun, then they shouldn’t be free to be out in society at all. A dangerous person can be dangerous with a rock, baseball bat, knife or chainsaw. They don’t need a gun to be dangerous.

  3. avatar Robert A says:

    Felons do not lose their 1st, 3rd, 4th, 5th, 6th etc. amendment rights,why only the 2nd? If they served their time then they should be free to exercise ALL their rights under the Constitution. Those worried about violent Felons, well they are not going to follow the gun laws (or most other laws)anyway………

    1. avatar Nanashi says:

      Same reason the GCA can bar a quarter of the US population from owning a handgun or buying long gun at a dealer even though they’ve never committed any crime: FDR’s legacy of treating what the governed have consented to as “marvelously elastic” and backing it up with judicial appointments for the KKK.

      1. avatar Salty Bear says:

        “Consent of the governed” turned out to be a myth and a paradox. Those who consent consent freely, and are not governed by anything but their own conscience. Only those who do not consent are governed, against their will and without their consent.

  4. avatar former water walker says:

    Wow a “common sense” statement from Illinois. Southern anyway. Yeah I have a 40 year old son who is a quite non-violent felon. I doubt he cares if he gets a gat legally. It’s a step in the right direction.

  5. avatar New Continental Army says:

    “Show me the man, I’ll show you the crime.” – KGB proverb.

    1. avatar daveinwyo says:

      actually the quote is from Berria (sic) stalins head of security.

  6. avatar Vic Nighthorse says:

    Keep in mind that the term “crime of violence” is often misapplied to offenses. Just using armor as collateral in an illegal poker game without even wearing the armor or even being impolite is “wearing or possessing armor during the commission of a crime” and thus is a “crime of violence” here in MN. Ask me how I know;-) The bastard prosecutors have no problem using laws in ways that were never intended just to get some more ears on their war necklace.

    1. avatar fredrick tucker says:

      I second your comment. Common sense should dictate that any Felon, violent or otherwise, can acquire a firearm upon their release regardless of Federal statues. Why is it that Non violent Felons, who have completed their sentence, do not have ALL their rights restored upon release. Many may not know that up until 1992 ATF could grant 2nd amendment rights for those who met the background requirments; however, Sen Chuck Schumer, head of the Approperations Committee at that time,stoped funding ATF to carry out this task. What a surprise. Just another method of Gun conrol by the Left. Additionally, I’m confident may Felons don’t care to have a Firearm in the 1st place. I can only assume that in the past, the purpose of the ATF background check was to weed out those considered too dangreous to be in society. Seems to me those are the ones who should remain encarcerated rather than someone serving a Life sentence for violating Marijuana laws. How insane! The Federal system in in severe need of reform.

  7. avatar Ed says:

    The right to bear arms is inalienable and god given…that means only god should be able to take it away. If you are not currently incarcerated you should have ALL your rights. Period. No ones quality of life should suffer AFTER they pay thier debt. If you deserve to be punished for life, you shouldn’t be on the street in the first place.

    1. avatar Art out West says:

      Ed is speaking the truth

    2. avatar Salty Bear says:

      This (with the caveat that sitting in prison hardly constitutes paying one’s debt).

  8. avatar Imayeti says:

    Justice is blind. At least, in this case, it’s not stupid.

  9. avatar rt66paul says:

    No one needs protection more than someone just out of the pen. The police will not help them much and the prison gangs have people on the outside that will harass them to do crimes for the ol’ gang.
    If someone did a crime that was not violent and no firearms were used to threaten, they have shown enough restraint that they should be able to have a firearm for protection(at the very least, at home).
    While the US has 25% of all the prisoners worldwide, this creates an underclass that the government can exploit. Not being able to have a firearm is a big restriction.

    1. avatar New Continental Army says:

      You are correct, however I’ve always had an issue with the “25%” quote, because I firmly believe that Russia, China, Saudi Arabia, North Korea, and likely a few other shitholes, likely have way more in prison camps then they care to admit. Also, in certain countries like Honduras, many people that would’ve been prisoners, are simply shot. Not that it makes it ok for us to do it.

  10. avatar barnbwt says:

    Overruled by a Hawaiian State Judge, I hear

    1. avatar Gun Free School Zones are a crime against humanity says:

      How does a state judge overrule a US district court?

      1. avatar New Continental Army says:

        I have no idea, but, probably something to do with tyranny of the courts. Any given judge these days is like a walking God of power and tyranny that can single handedly overrule the will of the people as they please. Along with term limits, the power of judges desperately needs to be riegned in if the republic is to survive.

  11. avatar ironicatbest says:

    In 94 I was charged with three felonies, did some time, ten years later I’ve got guns. That’s not the problem, the problem is DV misdeamnor, no guns ,never ever again. To many trumped up DV charges and even if they are not trumped up a misdeamnor DV should be able to get their 2a back. Clintons gone and so should be his gun grabbing schemes

    1. avatar Art out West says:

      The thing with misdemeanor DV robbing someone of their rights is really bad. Gun grabbers will use whatever method they can to undermine the ability of the public to own firearms. Besides that DV is currently defined so vaguely that it can mean almost anything.

    2. avatar Paul Revere says:

      You must have been convicted of state felonies as there is only one or two federal felonies (out of tens of thousands) that would allow you to own guns. 99.9% of all federal felonies will strip you of gun rights and the federal firearms rights restoration program at ATF has been defunded by Congress since 1992 – only option is a presidential pardon. If one has no 2A rights then there is little reason to live in the “good ole USA” as you can move to dozens of other countries where one can own firearms (even MSRs) and believe it or not, have more freedom regarding taxes and less regulatory hassles for business or just living your life.

  12. avatar Indiana Tom says:

    Ayn Rand says it all. It is easier to rule a nation of felons having limited legal rights and being able to leverage deals with them..

  13. avatar SKP5885 says:

    Mayhem? What is this. My 6 year old would surly be convicted of this felony! Lol.

    1. avatar Jason says:

      Wow… Thats one wild 6 year old you have there.

      Mayhem:

      “Every person who maliciously deprives another human being of a body part, or renders it useless, or cuts out an eye or the tongue, or slits the nose or a lip, is guilty of mayhem. Additionally, if the person commits the act under circumstances exhibiting an extreme indifference to the physical or psychological well being of the victim, he is guilty of aggravated mayhem. For the offender to be convicted, the injury must be permanent and not a temporary loss.”

  14. avatar GS650G says:

    The original intent of the felon ban on gun ownership was for violent crime. Now it’s anything over a year in jail and domestic issues at home. They would love to expand this to people that don’t agree with them.

    1. avatar Scoutino says:

      Everything with possibility of one year. It doesn’t matter how much jail time you actually get. Like in this guys case – zero.

  15. avatar TC says:

    Just a note to the author, there is no such thing as “2nd Amendment Rights.“ The Second Amendment confers no positive right. It recognizes a pre-existing right. It is an additional limitation on federal power to infringe upon gun rights besides the fact that no authority is granted to the federal government in its limited, enumerated powers to infringe upon them in the first place.” Oh and that means that the 2nd Amendment only applies to FedGov.

    1. avatar Toni says:

      it also means that those states that have the 2A in their state constitutions should not be able to infringe in any way upon that right either. the wording may vary a bit from state to state but the effect is the same

  16. avatar Drake_Burrwood says:

    You check the wrong box on ordering a fish for your pet store.. And on receiving it you have commited the felony of importing an illegal fish.

    Luckily I Don’t own a pet store.

  17. avatar Bruce Frank says:

    Part of the problem as I see it is that now even misdemeanor convictions are invoking the loss of 2nd Amendment rights. The absurdity of minor non-felony crimes causing the permanent loss of 2nd Amendment rights is only surpassed by the passage of laws that allow felony convicts to vote WHILE STILL IN PRISON!

    1. avatar Toni says:

      totally agree mate. any law that removes rights not having committed a serious crime should be removed from the books. prisoners that have committed serious crimes should loose all rights including the right to vote and there should not be any early release for good behaviour either along with the fact that prison should not be a holiday camp (not sure about US prisons but it is certainly the case here in australia) but that they should be at hard labour. personally i dont mind the idea of them learning new skills while in jail such as a trade especially if they are going to be out in a time frame that it will still be useful for them when they get out (locksmithing is not one that i would have on offer though 🙂 ) however if never to be released or to be released past 50 just menial manual labour type jobs.

  18. avatar Jim Shorts says:

    Realistically, the federal government needs desperately to revisit the 1934 NFA and 1968 GCA to clarify that disqualifying “felonies” for the purposes of ownership, possession, transportation etc. is intended to include only violent criminal acts. Such acts such as murder, robbery, kidnapping, rape, assault, and similar crimes.

    Oklahoma lists such crimes as: (Title 57 § 571)

    As used in the Oklahoma Statutes, unless another definition is specified:

    2. “Violent crime” means any of the following felony offenses and any attempts to commit or conspiracy or solicitation to commit the following crimes:

    a. assault, battery, or assault and battery with a dangerous or deadly weapon;

    b. shooting with intent to kill, assault, battery, or assault and battery with a deadly weapon or by other means likely to produce death or great bodily harm, as provided for in Section 652 of the Oklahoma Statutes;

    c. aggravated assault and battery on a police officer, sheriff, highway patrolman, or any other officer of the law;

    d. poisoning with intent to kill;

    e. shooting with intent to kill;

    f. assault with intent to kill;

    g. assault with intent to commit a felony;

    h. assaults while masked or disguised;

    i. murder in the first degree;

    j. murder in the second degree;

    k. manslaughter in the first degree;

    l. manslaughter in the second degree;

    m. kidnapping;

    n. burglary in the first degree;

    o. burglary with explosives;

    p. kidnapping for extortion;

    q. maiming;

    r. robbery;

    s. robbery in the first degree;

    t. robbery in the second degree;

    u. armed robbery;

    v. robbery by two (2) or more persons;

    w. robbery with dangerous weapon or imitation firearm;

    x. child abuse;

    y. wiring any equipment, vehicle or structure with explosives;

    z. forcible sodomy;

    aa. rape in the first degree;

    bb. rape in the second degree;

    cc. rape by instrumentation;

    dd. lewd or indecent proposition or lewd or indecent act with a child;

    ee. use of a firearm or offensive weapon to commit or attempt to commit a felony;

    ff. pointing firearms;

    gg. rioting;

    hh. inciting to riot;

    ii. arson in the first degree;

    jj. injuring or burning public buildings;

    kk. sabotage;

    ll. criminal syndicalism;

    mm. extortion;

    nn. obtaining signature by extortion;

    oo. seizure of a bus, discharging firearm or hurling missile at bus;

    pp. mistreatment of a mental patient;

    qq. using a vehicle to facilitate the discharge of a weapon pursuant to Section 652 of Title 21 of the Oklahoma Statutes;

    rr. bombing offenses as defined in Section 1767.1 of Title 21 of the Oklahoma Statutes;

    ss. child pornography or aggravated child pornography as defined in Section 1021.2, 1021.3, 1024.1 or 1040.12a of Title 21 of the Oklahoma Statutes;

    tt. child prostitution as defined in Section 1030 of Title 21 of the Oklahoma Statutes;

    uu. abuse of a vulnerable adult as defined in Section 10-103 of Title 43A of the Oklahoma Statutes who is a resident of a nursing facility;

    vv. aggravated trafficking as provided for in subsection C of Section 2-415 of Title 63 of the Oklahoma Statutes;

    ww. aggravated assault and battery upon any person defending another person from assault and battery;

    xx. human trafficking as provided for in Section 748 of Title 21 of the Oklahoma Statutes; or

    yy. terrorism crimes as provided in Sections 1268 et seq. of Title 21 of the Oklahoma Statutes.

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