Lesson of the day -- Be careful what you declare a "fundamental right"

[Charles Kozierok]

New Orleans judge rules statute forbidding felons from having firearms unconstitutional after 'fundamental right' amendment:

An Orleans Parish judge on Thursday ruled that the state statute forbidding certain felons from possessing firearms is unconstitutional, in the wake of a constitutional amendment passed last year that made the right to bear arms a fundamental one in Louisiana. The issue will now go straight to the state Supreme Court, which must decide whether the statute infringes on Louisiana citizens' now-enhanced right to gun possession. ...

Derbigny ruled that the entire statute -- RS 14:95.1 -- was unconstitutional after voters last year approved by a sweeping majority a constitutional amendment backed by the National Rifle Association. That bill made gun ownership a "fundamental right," on the same level as freedom of speech or religion.


A court interpreting any law restricting a fundamental right -- as gun ownership is now considered -- must approach it with "strict scrutiny," the highest level of judicial scrutiny.


Before Jan. 1, questions of gun rights were considered with "rational scrutiny," which allowed regulations to "protect the public health, safety, morals or general welfare." But strict scrutiny requires that the law is, first, necessary for a "compelling government interest." Then, it must be so narrowly defined as to serve only that interest and, third, be the least restrictive way of doing so.

I'm guessing this is not what the proponents of this bill were aiming for.

 

[Jaskalas]

New Orleans judge rules statute forbidding felons from having firearms unconstitutional after 'fundamental right' amendment:

I'm guessing this is not what the proponents of this bill were aiming for.

*facepalm

I suggest the legislature change the law.

 

[JTsyo]

*facepalm

I suggest the legislature change the law.

It's a step up from law since it's in the state constitution. I'm guessing they will say some felons are OK but not violent ones or ones that used guns in crimes.

 

[chucky2]

What's the big deal? Either the ex-criminal will still be a criminal when he/she gets out, and will just get a firearm no matter the law, or, he/she won't be a criminal and should be able to have one. I don't see the problem.

 

[SMOGZINN]

I'm not certain that the judge is wrong. The question is, do felons deserve even fundamental rights? We take away a number of rights that anyone would consider fundamental from felons, like for example Liberty and in some cases even Life. If we can do that, why are we now balking at taking other fundamental rights?

So, the real question is do felons have ANY rights or are they fully disenfranchised?

 

[SMOGZINN]

What's the big deal? Either the ex-criminal will still be a criminal when he/she gets out, and will just get a firearm no matter the law, or, he/she won't be a criminal and should be able to have one. I don't see the problem.

It is because we no longer even expect our criminal justice system to rehabilitate, they are now fully about punishment. Therefore we expect that if a criminal goes into the system, a criminal comes out of the system, and the only question is how long until he needs more punishment.

 

[Mursilis]

So, the real question is do felons have ANY rights or are they fully disenfranchised?

I'm guessing you'd have to look at it on a right-by-right basis. I'm definitely OK with the right to bear arms being restricted for felons. The right to practice their chosen religion (or none at all)? That should not be affected. And so on and so forth.

 

[cwjerome]

I would say the right to self-defense is a fundamental right, while the right to bear arms is more of a "higher law" consequence in the vein of Edward Corwin, that is, a middle ground between broad principle and statute... ie, the right to bear arms is constitutional law, not a fundamental right or regular codified law.

 

[chucky2]

It is because we no longer even expect our criminal justice system to rehabilitate, they are now fully about punishment. Therefore we expect that if a criminal goes into the system, a criminal comes out of the system, and the only question is how long until he needs more punishment.

Well, punishment and "punishment". The problem is, statistically, by the time these guys are on their 3rd/4th/whatever offense, it'd be far better to society to just euthanize them. They aren't going to be rehabilitated in the numbers needed to make rehabilitation effective.

Getting off the OP though...I think you do the time, you're free back into society, full rights; possibly the only exception to this would be something like child molester. And I'm not talking about a 16 year old that dresses like a Ho claiming a teacher of 30 years with a spotless record "raped her" (only years later to recant), I'm talking like a true F'ing monster.

Chuck

 

[Craig234]

I would say the right to self-defense is a fundamental right, while the right to bear arms is more of a "higher law" consequence in the vein of Edward Corwin, that is, a middle ground between broad principle and statute... ie, the right to bear arms is constitutional law, not a fundamental right or regular codified law.

Thing is, this isn't about what you think the law should be, it's about what happens when voters and/or legislators act badly and abuse the constitutional amendment process.

Funny thing is, their solution would probably be to deny all 'fundamental rights' to felons. Screw their right to free speech and freedom of religion, bunch of Muslim jailbirds.

 

[Craig234]

Well, punishment and "punishment". The problem is, statistically, by the time these guys are on their 3rd/4th/whatever offense, it'd be far better to society to just euthanize them.

We'll put you down for Sharia law. Let's get chopping hands and heads off.

Luckily, our law has respect for human life. Not all our citizens are as moral.

 

[chucky2]

We'll put you down for Sharia law. Let's get chopping hands and heads off.

Luckily, our law has respect for human life. Not all our citizens are as moral.

Not a problem. Since I'm not a thief/criminal, you can chop all the hands and heads off you want. Too bad our criminals don't have respect for the society they live in/human life...what a F'd up system we have.

Let me guess though: You'd coddle them in the name of "reform", amirite?

 

[Craig234]

Not a problem. Since I'm not a thief/criminal, you can chop all the hands and heads off you want. Too bad our criminals don't have respect for the society they live in/human life...what a F'd up system we have.

Let me guess though: You'd coddle them in the name of "reform", amirite?

Coddle, no. Prevent crime and rehabilitate and give them better options, ya.

 

[SarcasticDwarf]

I can't say I have a problem with this.

I would not object to the courts being able to restrict a felon's access to firearms for a limited period after release on a case by case bases when convicted of specific crimes. In my mind, saying that every felon should be permanently barred from having access is just flat out wrong. Is removing the right to self-defense (among other activities) for someone convicted of stealing a car when they were 17 really in the best interest of the public?

My sense is that the real reason that the police like this law is the same reason that they like laws that require concealed carry permits. When they stop someone and happen to find that they are a felon and have access to a firearm, it is an immediate bust for them without any hassle.

 

[Charles Kozierok]

We'll put you down for Sharia law. Let's get chopping hands and heads off.

This is a red herring. The view he expressed has absolutely nothing to do with "Sharia" and everything to do with the fundamental outrage people feel when someone commits a serious crime.

That doesn't mean we should always give in to our instincts and desires for revenge. But it has nothing to do with Islamist fundamentalism.

Luckily, our law has respect for human life. Not all our citizens are as moral.

What makes you so sure that your view is the "moral" one?

I see nothing immoral in the concept that someone who deliberately takes someone's life has forfeited theirs. If there were any way to ascertain with 100% confidence the guilt of murderers, I'd be in favor of the death penalty, and my guess is so would most people.

 

[SMOGZINN]

I can't say I have a problem with this.

I would not object to the courts being able to restrict a felon's access to firearms for a limited period after release on a case by case bases when convicted of specific crimes.

Right, even if the right to bear arms is a fundamental right, the courts can still restrict it on a case by case basis. All this ruling really means is that every sentencing needs to include the statement 'and are bared from owning firearms for the remainder of your life'. That would probably pass the test required for removing or abridging a persons fundamental rights. Although it might not hold up in cases where a firearm was not used in the crime to see if it passes the 'compelling reason' part of the requirements. I think I'm okay with that as well.

 

[Craig234]

Right, even if the right to bear arms is a fundamental right, the courts can still restrict it on a case by case basis. All this ruling really means is that every sentencing needs to include the statement 'and are bared from owning firearms for the remainder of your life'. That would probably pass the test required for removing or abridging a persons fundamental rights. Although it might not hold up in cases where a firearm was not used in the crime to see if it passes the 'compelling reason' part of the requirements. I think I'm okay with that as well.

Um... so you are saying it's constitutional to say:

'and are barred from free speech for life'

'and are barred from practice of religion for life'

'and can be tortured by police'

A conviction ends some rights, but not all. It's up to the courts.

I'm sure the voters fully understood the law.

 

[Doppel]

It is tricky. At its simplest the 2nd is for self-defense and a felon acting now legally in his regular life should have as much right to that as another person; are their lives worth less? Are the lives of mentally ill worth less? No.

And yet since it's impossible to ensure a gun owner of this kind keeps his gun only in his house and doesn't go out doing stupid things with it, most people appear ok with limiting their access to firearms.

FWIW I totally agree with allowing non-violent felons access to guns.

The 2nd is a fundamental right. It seems to this layman that strictly speaking the laws against felons are unconstitutional (although SCOTUS has upheld that they are ok at least once).

 

[Agent11]

Simple solution would be to execute the bad ones, rehabilitate the ones were it is possible.

Instead we bend over backwards to appear modern and enlightened, somehow rationalizing that locking men in cages for life rather than killing them makes us so.

And then we release these men we have locked in cages, supposedly for life, back on the streets to poison the minds of our children and re offend.

 

[Craig234]

It is tricky. At its simplest the 2nd is for self-defense and a felon acting now legally in his regular life should have as much right to that as another person; are their lives worth less? Are the lives of mentally ill worth less? No.

And yet since it's impossible to ensure a gun owner of this kind keeps his gun only in his house and doesn't go out doing stupid things with it, most people appear ok with limiting their access to firearms.

FWIW I totally agree with allowing non-violent felons access to guns.

The 2nd is a fundamental right. It seems to this layman that strictly speaking the laws against felons are unconstitutional (although SCOTUS has upheld that they are ok at least once).

Doppel, it seems you're confusing their state constitution saying it's a 'fundamental right' with the federal constitution.

 

[Craig234]

Simple solution would be to execute the bad ones, rehabilitate the ones were it is possible.

Instead we bend over backwards to appear modern and enlightened, somehow rationalizing that locking men in cages for life rather than killing them makes us so.

And then we release these men we have locked in cages, supposedly for life, back on the streets to poison the minds of our children and re offend.

Yes, it's 'simple'. So was the 'final solution'. Poison the minds of our children? You're sounding a bit crazy. How do released cons sentenced for life do that?

 

[Pray To Jesus]

What's the big deal? Either the ex-criminal will still be a criminal when he/she gets out, and will just get a firearm no matter the law, or, he/she won't be a criminal and should be able to have one. I don't see the problem.

Pretty much this.

It's silly to expect criminals, who are determine to do crime, to follow the law regarding gun ownership.

Ex-felons, who now are law abiding citizens, should legally be allowed to own guns. They should be treated fairly under the law.

 

[Pray To Jesus]

I'm not certain that the judge is wrong. The question is, do felons deserve even fundamental rights? We take away a number of rights that anyone would consider fundamental from felons, like for example Liberty and in some cases even Life. If we can do that, why are we now balking at taking other fundamental rights?

So, the real question is do felons have ANY rights or are they fully disenfranchised?

Yes we do take away their liberties for a set period of time, as provided by the law for their crime.

After they have served their sentence and are now legally freemen, what right do we have to continue to punish them? How is that Justice?

 

[yllus]

I actually completely agree with the ruling. Once you're out, you're out - all rights should be restored. I highly dislike this branding for life that occurs today.

 

[Charles Kozierok]

I actually completely agree with the ruling. Once you're out, you're out - all rights should be restored. I highly dislike this branding for life that occurs today.

It's a tough call. I can see both sides of the argument.

Yours is a matter of simple fairness -- society decides what their punishment should be, and once they serve it, they should be free to be treated like anyone else.

The problem is that there are many crimes that criminals tend to repeat. It is possible to have people that we can trust in society in general, but not necessarily as gun owners. If we remove the ability to restrict their gun ownership, then the only alternative is to lock them up for life, which isn't good for anyone.

I see these laws as a compromise of sorts.