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“Laws that forbid the carrying of arms… disarm only those who are neither inclined nor determined to commit crimes… Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” (Cesare Beccaria, “On Crimes and Punishment,” quoted by Thomas Jefferson in “Commonplace Book,” 1774-1776)
Our 2nd Amendment states that “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.” This seems simple enough. “A well regulated militia, being necessary to the security of a free state” is a prefatory clause. It’s purpose is to insure that at any future date, the militia, which was the whole of the people, could be called upon to defend our nation and perform as competent marksmen.
Following the prefatory clause is the operative clause of the amendment, wherein “the right of the people to keep and bear arms, shall not be infringed.” This statement is a furtherance of British Common Law, and natural law, wherein the unalienable right of “self defense” – to defend ones’ self, family, property, and state – is enshrined.
In the end, any, every and all laws that in any way restrict the right of the people to keep and bear arms (ALL arms!) are by definition unconstitutional. In that light, I defer to Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), wherein Chief Justice John Marshall wrote “…an act of the legislature, repugnant to the constitution, is void.”
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court ruled in favor of Heller 5-4 that the 2nd Amendment protected an individual’s right to own a gun. In the majority opinion, Justice Antonin Scalia argued that the Second Amendment’s “operative clause” that the “right of the people to keep and bear arms, shall not be infringed” guaranteed those in the general community, not just in the militia, the right to own and use guns for the purpose of home defense. A later 5-4 Supreme Court decision in McDonald v. City of Chicago, 561 U.S. 742 (2010), ruled that that right extended to the states, ruling that the Second Amendment right to bear arms is a fundamental right that states must protect.
The above references federal recognition of an unalienable right that all U.S. states and territories must recognize. Here in Alabama, Article I, Section 26 (a) of the 1901 Constitution of Alabama states that: “Every citizen has a fundamental right to bear arms in defense of himself or herself and the state.” Because of the above cases, the State of Alabama Legislature passed legislation that made Alabama a “Constitutional Carry” state at the beginning of this year. “Constitutional Carry” referring to the legal public carrying of a handgun, either openly or concealed, without a license or permit.
Over in California, U.S. District Judge Roger T. Benitez just recently wrote that one “government solution to a few mad men with guns … makes into criminals responsible, law-abiding people wanting larger magazines simply to protect themselves,” before he struck down California’s ban on firearm magazines holding more than 10 rounds as unconstitutional, “arbitrary and capricious.” I’ll chalk that one as a WIN for our Constitution.
However, regardless of whether or not a felon was convicted for a violent offense, as federal law currently states, all convicted felons are deprived of their right to own a firearm. On Friday, September 15, a three-judge panel for the Tenth Circuit Court of Appeals ruled against a Utah woman who sought to restore her gun rights.
The woman in question, Melynda Vincent, was previously convicted of felony bank fraud for writing a fraudulent $498 check for groceries when she was homeless in 2008. She was sentenced to probation and never imprisoned for the crime. Vincent, who is now employed as a social worker, and a single mother, wants to acquire a gun to defend her family, so she sued the federal government over the felony gun ban back in 2020. She lost and appealed, which led to the recent case. In the end, the panel determined that federal law prohibiting all convicted felons from possessing firearms was constitutional, and they declined to overturn its precedent reaching the same conclusion. I chalk this up as a LOSS. Not all felons are violent, and to me at least, in the absence of any history of violence, the federal law that deprives all convicted felons of the unalienable right to defend themselves against any attacker, on a level on par with what any typical attacker may be armed with, is in violation of the 2nd Amendment, wherein “the right of the people to keep and bear arms, shall not be infringed,” with no mention of any exceptions.
I further find that the federal law that bans all felons from owning a firearm is a violation of the equal protection clause of the 14th Amendment, wherein “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The operative clause of the 14th being “nor deny to any person within its jurisdiction the equal protection of the laws,” as the courts have essentially ruled that all convicted felons, regardless of whether the crime was violent, are not entitled to equal enjoyment of the most basic civil liberty, the right of self-defense.
Not mentioned in this case, but a point where I find fault with government over-reach, is ATF Form 4473 used when purchasing a firearm from a dealer, and the associated background check, that violates a person’s 4th Amendment right to privacy and their 5th Amendment right against self-incrimination, and the 9th Amendment, where “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
As I mentioned above from Marbury v. Madison, “…an act of the legislature, repugnant to the constitution, is void.” Yet, to defy an unconstitutional law is to risk conflict with law enforcement, further loss of freedom and liberty and potentially one’s life.
Either a felon is violent enough to permanently remove them from society, or they are reformed and should be fully reintegrated back into society. A permanent lesser status is every bit as vile as slavery was prior to the passage of the 13th Amendment.