A question:

[beevul]

As of late theres been discussion of restoring the rights of felons,
but some folks say not restoring rkba. I have never seen a discussion on DU about whether someone barred from gun ownership should be out on the street or not.

So, the questions I'm asking are:

Should someone who is barred from firearm possession/ownership be on the street?

If someone is safe enough to be on the street, why should they be barred from firearm possession/ownership?

Where and how should that line be drawn?


Note: This is a difficult issue for me, and I'm not sure where I stand on it, and thought it worthy of discussion.

[La_Serpiente]

1. There was a ruling

I forgot the case, but there was a case where a man who was formerly in a mental institution could not own firearms even though he was cured from his mental disorder. He sued and it went all the way to SCOTUS. SCOTUS said that he could own firearms because he was cured of his mental disease.

[dofus]

2. Okay, I'm stumped.

What's rkba and why should I be concerned about whether or not it's restored?

[MrBenchley]

3. RKBA refers to

the dishonest hooey peddled by the NRA, John AshKKKroft, Tom DeLay, etc. that the second amendment means that every yokel can own any gun he feels like.

For some reason the extremists in this bunch think convicted felons ought to be re-armed. At least partly this is due to some NRA board members having been convicted of felonies...

"The history of the guns-for-felons program proves the blatant hypocrisy of the National Rifle Association. The NRA calls for tougher enforcement of gun laws and swift, sure, and final punishment for criminals. But the NRA has worked harder to re-arm convicted felons than it ever has to keep guns out of criminals' hands. Congress should eliminate the "relief from disability" program once and for all. "

http://www.vpc.org/studies/felons.htm

[TexasMexican]

11. RKBA =

Right to keep and bear arms.

[jody]

4. States differ on whether to restore RKBA when other civil rights are

restored.

Relevant data related to each state's "LOSS AND RESTORATION OF STATE FIREARMS PRIVILEGES" can be found in "Civil Disabilities of Convicted Felons: A State-by-State Survey" at http://www.usdoj.gov/pardon/forms/state_survey.pdf

Federal law on the topic is located at http://www.usdoj.gov/pardon/collateral_consequences.pdf

[Superfly]

5. Although probably not practical...

felons, even violent ones, should be restored their rights if the law is to apply equally to all Americans. A person who is convicted of a crime, does time, is released, has served his/her debt to society and should be restored all rights that Americans enjoy. To deny a person the right after they repay their debt to society is to continue punishmet ad infinitum, which is unfair.

Now, I know you're going to ask: "You mean to restore rights to KBA to people who may once again use those arms to commit more crimes?"

Yes, and if they commit more crimes with those arms, then the same penalty applies as for the first time.

Brian

[jhfenton]

6. I support restoring the rights of non-violent felons

including the Right to Keep and Bear Arms (RKBA). If you affirmatively demonstrate your inability to handle yourself without violence, then the last thing you need is a firearm to facilitate your violence. However, I see no reason why a non-violent drug offender or check kiter or embezzler should lose his or her rights to self-defense. Physically attacking another human being is in another category altogether.

[TexasMexican]

12. I agree.

[CarinKaryn]

7. The fact that right wingers even consider rearming -

violent, convicted felons is just another sign of how sick we have gotten.

[demsrule4life]

8. If you study this issue a bit

you would realize that it isnt the "right wingers" who want to give rights back to ex-cons.

[jhfenton]

9. Ding ding ding

You're right on the money, demsrule4life. CarinKaryn's instinctive anti-gun hysteria tripped her up there.

The restoration of civil liberties to "former" felons is a progressive and libertarian cause. Most non-libertarian conservatives are strongly opposed to it.

[MrBenchley]

15. On the other hand, fenton...

A lot of really demented right wing loons pretend that civil liberties include gun ownership....and the NRA has been foremost in trying to rearm convicted felons.

[LARED]

20. Question?

Does believing that civil liberties include gun ownership automatically make one a right wing loon?

[DoNotRefill]

10. Why?

Why should they be allowed to vote, but not to have guns?

Either they're legally disabled, or they aren't. You can't pick and choose what rights to give back to them.

And I think that the point of this was what are they ddoing out of jail if they're still a threat to society? And if they're not a threat to society, why shouldn't they have their rights back?

[CarinKaryn]

14. Sure, so its all or nothing

Either keep someone incarcaratied in max security prison or set them free and arm them with machine guns. No parole, no supervised work release, no house arrest. All or nothing. Great idea.

[Superfly]

16. I think you might have to ask yourself, Carin

are you a progressive or are you just scared?

Seriously, you need to ask yourself that.

If you do not restore an ex-felon's rights (all of their rights) upon serving his/her sentence, what the hell were they in jail for anyways? Serving time is supposed to repay your debt to society.

CONSERVATIVES and RIGHT WINGERS want to keep prisoners behind bars longer and, upon release, want no rights restored to felons.

So, which is it?

[CarinKaryn]

17. Nice attempt to distract.

So you believe convicted violent felons and sex offenders should be released into the community with no supervision, no parole, no registeration with LEO's?
Answer that and I will again tell you if they should also be armed with machine guns.

[a2birdcage]

21. Who's arming them..........

with machine guns? It's illegal for civilians to purchase post 1986 machine guns and the paper work to by a pre 1986 machine gun which registers it with the federal government and also requires a $200 tax stamp is usually a little more than most criminals are willing to do. So I ask you again, where are they getting the machine guns? Also, very few crimes are committed with illegal machine guns. Wake up Carin!

[Superfly]

23. IF they completely serve their sentences

all convicted criminals should be restored ALL their rights. That's what serving a sentence means!

You do a crime.
You are convicted of a crime.
The judge sentences you to x years in prison as punishment for your crime.
At the end of your sentence, you are once again released on your own, without state supervision, because you have REPAYED your debt to society.

Restricting the rights of ex-felons who have served their complete sentences is cruel and unusual. If you don't want them back on the street, then give them longer sentences. Oh, but wait, if you did that, you'd BE A CONSERVATIVE.

[jody]

26. CarinKaryn, you make wild accusations when you say "you believe convicted

violent felons and sex offenders should be released into the community with no supervision, no parole, no registeration with LEO's?"

No one said that. The question was whether a convicted felon who has paid his/her debt to society should have their RKBA restored. In general and with the exception of sex offenders, no convicted felon who has paid his/her debt to society is under the supervision of LEOs.

Where did you get such an idea?

[CarinKaryn]

27. From the SuperFly

"If you do not restore an ex-felon's rights (all of their rights) upon serving his/her sentence, what the hell were they in jail for anyways? Serving time is supposed to repay your debt to society."

the fly thinks felon's (don't want to argut semantics, but aren't they felons forever once they've been convicted) shoudl have "all of their rights" restored. RKBA, right to vote, and I assume, 4th amendment rights. Under the parole/sex offender registeration system, I don't think anyone would argue that felons and sex offenders have the same 4th amendment rights as a non felons.

So the fly feels once they are released from their max security prison, they should be discharged into society with no supervision.

I say supvise, register, and of course, no machine guns, revolvers, street sweepers for convicted rapists and murderers. Of course, you may disagree.

[Superfly]

29. Yes, "the Fly" said that

I don't think you understand our penal system. A person is convicted, sentenced, serves their sentence, and then released. The sentence is served and the person is restored to be an active part of society.

If they serve their sentence, then they have served their debt to society and should be restored their rights.

What is so hard to follow?

I really think you need to re-examine your affiliation with the progressive movement. Preogressives want people to have MORE rights and LESS restrictions, including people who have served their sentences as convicted felons (violent or otherwise).

[CarinKaryn]

31. Not hard to follow - answer the question please

Do you believe convicted sex offenders should be subject to Sex Offender registeration and parole restrictions?

You can't have them register, report in weekly and be subject to random searches without them giving up their 4th amend rights. So if you want their 2nd amend rights and the right to vote restored, it stands that you also want their 4th amned rights restored.

As the gun lovers are fond of saying, you can't pick and choose. So do we release child rapists into society with no parole, no supervision, the right to vote and the RKBA or do we place reasonable restrictions on them?

[Superfly]

32. If that's a condition of their sentence

then that's OK. You see, if it were a condition of the sentence like "you will serve 5 years, at the end of which you will be registered as a sex offender and have to be monitored by a LEO..." then that's what a judge is saying is adequate repayment of the criminal's debt to society.

Now, a criminal is convicted of a felony and the judge hands down a sentence of "5 years, hard time penitentiary", then, at the end of those 5 years, the prisoner should be restored all rights.

[CarinKaryn]

34. Thanks for the direct answer.

No registeration for sex offenders required.

[Superfly]

36. Once again,

I said that registration, visits by LEOs, etc would be required, IF a condition of the sentence.

Not every instance of the same crime will be handed the same penalty.

[iverglas]

43. are we understanding sentencing?

I sure don't understand it the way you seem to. But then I'm a furriner.

A prison sentence for a criminal offence is finite. It imposes a term of imprisonment -- which may be as long as life, and which may be served, in part, outside of a prison.

Part of a sentence is commonly served outside of a prison (i.e. on parole). What part that will be is not normally under the jurisdiction of a court. (An exception would be Canada's laws imposing mandatory minimum lengths of time before parole may be granted, for homicide offences.)

Once a person is released on parole, that supervision is for a finite term: to the end of the sentence. Probation orders (whether after a term of imprisonment, or stand-alone) are the same: they place conditions on a person's activities for a finite term. I'm not aware of any "life probation" laws.

So your "if" --

I said that registration, visits by LEOs, etc would be required, IF a condition of the sentence.

-- really makes no sense, to me. Conditions of parole are not normally part of a sentence, they are determined and imposed by whatever authority deals with applications for and releases on parole -- which is generally *not* the sentencing court. And the conditions would apply for life *only if* the original sentence was a life sentence.

The accurate statement would be that IF an offender is given a life sentence, THEN that offender may be made subject to any constitutionally valid conditions for the remainder of his/her life, which is the same as the remainder of his/her sentence. Where an offender is sentenced to a term of a certain number of years, conditions could only be placed on his/her activities while on parole until the end of that term.


I find this whole discussion silly and misguided and uninformed, but then I find a lot of discussions about such things by some people to be silly and misguided and uninformed.

As CarinKaryn says, this "all or nothing" approach is nonsense.

People's ability to exercise rights is interfered with, by laws, all the time. The question is always whether the interference is justified.

Often, a blanket interference -- one that applies to a whole group of people based on a shared characteristic -- will end up being invalid. But not necessarily. It would be invalid if it were not justified, essentially as being necessary in order to achieve an important public objective. We might well be suspicious of a prohibition that applied to *all* people in a class, i.e. wonder whether it wasn't over-broad, over-inclusive, and unnecessary in order to achieve that objective. The prohibition on possessing firearms *could* be such an impermissible interference. Whether it is is the question.

The right to vote is indeed an interesting point of comparison. The Supreme Court of Canada has struck down all restrictions on the exercise of the right to vote by persons convicted of criminal offences.

Such persons were never denied the right to vote after release from prison, but were disentitled to vote while in prison. The Supreme Court has held that this violation of constitutional rights has no basis either in sentencing theory/practice (as something that is likely to achieve a valid goal of sentencing, e.g. rehabilitation, protection of the public, etc.) or in any other valid public purpose (e.g. promoting public safety, a major reason for laws that interfere with the exercise of various rights).

http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol3/html/2002scr3_0519.html

Per McLachlin C.J. and Iacobucci, Binnie, Arbour and LeBel JJ.: <5 to 4 decision>
To justify the infringement of a Charter right under s. 1, the government must show that the infringement achieves a constitutionally valid purpose or objective, and that the chosen means are reasonable and demonstrably justified.

The government's argument that denying the right to vote to penitentiary inmates requires deference because it is a matter of social and political philosophy is rejected. While deference may be appropriate on a decision involving competing social and political policies, it is not appropriate on a decision to limit fundamental rights.

The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination. The framers of the Charter signaled the special importance of this right not only by its broad, untrammeled language, but by exempting it from legislative override under s. 33's notwithstanding clause. <Parliament cannot override the right to vote the way it can override certain other rights.>

The argument that the philosophically-based or symbolic nature of the objectives in itself commands deference is also rejected. Parliament cannot use lofty objectives to shield legislation from Charter scrutiny. Here, s. 51(e) is not justified under s. 1 of the Charter.

That looks to me like the correct approach when it comes to voting. There is no justification for denying the right to vote -- whether during the term of a sentence, including the parole period, or after the sentence is completed. It is a fundamentally and extremely important right -- perhaps the most fundamental and important in our societies -- and cannot be denied without the most extreme cause.

Is there justification for denying the "right" to possess firearms -- even after a sentence has been fully served? THAT IS THE QUESTION.

There are no "package deals" when it comes to denial of rights, and it's disingenuous to approach the question from that angle. Everyone has all rights, and may be denied the exercise of any one of them where there is justification.

People who commit certain crimes are imprisoned because we believe that we have justification for denying their right to liberty: the need to protect the public. We don't execute shoplifters (deny their right to life), because it would not be justified to do so. We also do not deny inmates their freedom of speech, when it comes to communicating with the public in respect of important public issues, because it would not be justified to do so.

Why so much eagerness to reject any restrictions on persons with criminal convictions possessing firearms? Why such apparent refusal to even consider the possibility that such restrictions are justified? Why no discussion of THAT question, which *is* THE question?

Me, I'd sure be a whole lot more het up about denial of the right to vote. But that's just me.

.

[CarinKaryn]

48. Thank you

It's so refreshing to have someone on this board who has both knowledge and practical experience on the subject being discussed.

Most people seem to post here because of their fear that their hobby will be taken away - and that colors their every thought.

[iverglas]

52. absolutely correct

"You can't have them register, report in weekly and be subject
to random searches without them giving up their 4th amend rights.
So if you want their 2nd amend rights and the right to vote restored,
it stands that you also want their 4th amned rights restored.
As the gun lovers are fond of saying, you can't pick and choose."

Of course, as I'm sure you're agreeing, we CAN pick and choose.

Superfly's contention that he is not saying what you said he said:

"You see, if it were a condition of the sentence like "you will serve 5 years, at the end of which you will be registered as a sex offender and have to be monitored by a LEO..." then that's what a judge is saying is adequate repayment of the criminal's debt to society."

... is based on a misapprehension/misrepresentation of sentencing. A judge MAY NOT impose conditions on an offender to apply after the offender's sentence has been completed. Judges deal with sentences for criminal offences, upon conviction, only; they do not deal with anything that occurs after expiry of the sentence.

The conditions you refer to may be imposed to apply during the term of a sentence: i.e. you "serve five years", including parole on whatever conditions the parole authorities impose, and then you are free of all restrictions. UNLESS there is legislation that empowers judges to impose conditions on people's lives *after* their sentences have expired. (Are there? That would be an aberration, and a major one.)

In that case -- conditions that apply after sentence expiry -- the condition would NOT be "a condition of the sentence", it would be a deprivation of rights based on membership in a class of people: say, convicted sex offenders. The same would be true if the reporting requirement, submission to search requirement, etc. were imposed on sex offenders, after completion of sentence, by the state directly (rather than by the sentencing judge).

And that would be no different from imposing a prohibition on firearms possession on convicted offenders after their sentences expired, in the sense that both would be denials of rights.

Both could be imposed on convicted offenders after sentence expiry, IF the state could demonstrate justification for doing so.

Poor you, jody has said goodbye (well, "good bye", whatever that is) because you accurately interpreted what Superfly said and responded to it, despite his insistence that he was saying something else, when what he purported to be saying was not, um, correct. He made up an untrue premise -- that judges may do things which judges may not do -- and his position depended on the truth of that false premise. Maybe he'll respond "as if" his claim has been disproved, which it has, and answer your question directly. Maybe not. Who knows?

Could sex offenders be made subject to restrictions, or treated differently, in any way that violates rights, from other citizens or even other convicted persons, after sentence expiry? Can *any* convicted offender be treated differently in any way from another other citizen, after sentence expiry?

If the answer to either is "yes" ... why could not any or all convicted persons be prohibited from possessing firearms? (Of course, if the answer is "no", then somebody might offer some reasons for that answer ...)

The answer has absolutely nothing to do with whether someone's debt to society is "REPAYED", or repaid. It has to do with whether society has justification for limiting the exercise of rights.

Just about everybody would agree that there are certain grounds on which the "right" to possess firearms may be limited -- e.g. where an individual suffers from delusions and is known to act violently. The argument, which most accept, is that interference in the exercise of the right is then justified.

The argument in respect of convicted offenders is that, given their known propensity for violating the law, they are more likely than average to use firearms to cause harm. The prohibition is imposed not as punishment (i.e. not as "repayment of a debt to society", an idiotic notion in itself, since punishment doesn't repay any debt), but to protect the public.

The state IS JUSTIFIED in limiting the exercise of rights in order to protect the public. The questions are, basically:
- is the interference with the exercise of rights likely to contribute to achieving the objective of protecting the public?
- can that objective be achieved without interfering with the exercise of the rights? i.e. are there less intrusive ways of achieving the same objective?
- is the interference with the exercise of rights so serious that the objective does not outweigh the harm done?

Maybe someone will address his/her mind to those questions in relation to prohibitions on firearms possession by convicted offenders.

.

[beevul]

56. Ok, I think.....

Ok, I think.....
"The argument in respect of convicted offenders is that, given their known propensity for violating the law, they are more likely than average to use firearms to cause harm. The prohibition is imposed not as punishment (i.e. not as "repayment of a debt to society", an idiotic notion in itself, since punishment doesn't repay any debt), but to protect the public."-Iverglass


...no, Im not sure if I agree with that or not.

The question I am asking now is, Would it better serve public safety,
"given their known propensity for violating the law, they are more likely than average to use firearms to cause harm" to keep these "morethanlikelys" locked up, until such time as they no longer are classified as "morethanlikelys", since obviously,
simply banning them from ownership/possession of firearms really doesn't stop them from getting firearms?

Or maybe a better way to put it is:


Is there a type of offender who by virtue of a low threat level to society SHOULD be free to mingle with society, yet high enough threat level to deny that offenders RKBA?

If the public DOES need protection from an individual to the point that he cannot be allowed to own/possess firearms, Whats the point of denying him/her only 1 tool that could be potentially misused, as opposed to denying him/her a society to use any tools on?

Maybe a few examples if anyone has any ideas of them.

[iverglas]

57. examples?

"If the public DOES need protection from an individual to the point that he cannot be allowed to own/possess firearms, Whats the point of denying him/her only 1 tool that could be potentially misused, as opposed to denying him/her a society to use any tools on?"

Well ... that is not the question. The question is not "what's the point", the question is "what is justified". Really, it is.

"Maybe a few examples if anyone has any ideas of them."

So, you want examples of what -- "tools" that people use to commit crimes with?

I dunno. How about lawnmowers? Spatulas? What did you have in mind?

Let's keep some things straight.

"Gun control" of the variety that the UK has instituted is NOT designed to prevent the commission of crimes by people who use a firearm to facilitiate the commission of the crime. It is designed to prevent deaths and injuries caused by people using a firearm, that they own legally, specifically to cause death or injury.

"Gun control" of the variety that prevents convicted offenders from legally acquiring firearms IS designed to prevent those people from using firearms to facilitate the commission of crimes.

There IS a distinction. There are, in fact, two completely different things, and these are it.

Both initiatives involve protecting "public safety", but their specific objectives -- the WAYS in which pubic safety are to be protected -- are quite different. Just exactly as both speed limits and building codes are meant to protect public safety, but different aspects of different safety, which are protected by doing different things.

Now, I could have been more specific when I said:

"given their known propensity for violating the law, they are more likely than average to use firearms to cause harm"

-- I could have specified "more likely than average to use firearms to facilitate the commission of offences".

You do know what I mean by that, right? The use of firearms in order to commit a crime, e.g. in order to hold up a liquor store, in order to rob the occupants of a dwelling house, in order to commit a sexual assault. Crimes that many people would be less likely to commit if they did not have firearms. Seriously; how many people rob banks by walking in and aiming a spatula at the teller?

You ask:

"Would it better serve public safety, <since> 'given their known propensity for violating the law, they are more likely than average to use firearms to cause harm'<,> to keep these 'morethanlikelys' locked up, until such time as they no longer are classified as 'morethanlikelys', since obviously, simply banning them from ownership/possession of firearms really doesn't stop them from getting firearms?"

Yes indeed. Well. And it doesn't strike you as rather a severe interference with rights to keep someone locked up based on a propensity to violate the law? Somewhat -- just a tad -- more severe than prohibiting him/her from possessing firearms?? And therefore requiring just a tad more (not less!) justification than banning them from firearms possession??

You could try asking one of the folks in question. Which would you druther, if you had your druthers?
- be kept in prison after your sentence expires;
- be released and prohibited from possessing firearms (and hey, let's even assume that the prohibition worked and they knew they would be unable to possess firearms)
?
I wonder what the answer would be.

Banning them from possessing firearms really doesn't stop them from getting firearms? Hmm. I wonder whether it might be wise to make efforts to make it more difficult for them to get firearms ...

"Is there a type of offender who by virtue of a low threat level to society SHOULD be free to mingle with society, yet high enough threat level to deny that offenders RKBA?"

That's not really the question, since it assumes that there would be justification -- "threat level to society" -- for keeping someone incarcerated after sentence expiry. That is NOT justification for keeping someone locked up after sentence expiry. Yours is a false dichotomy. These are not the real choices.

The real choices are: release the person upon sentence expiry and permit him/her to possess firearms; release the person upon sentence expiry and prohibit him/her from possessing firearms.

Like I said -- a blanket prohibition might indeed be suspect. Yes indeed, cheque kiters might not be likely to go into the armed robbery business. Perhaps what is needed is to go back a step, and ensure that "felonies" and "misdemeanours" are actually properly classified, or that specific felonies (or even some misdemeanours) are used for the classification exercise, so that the former category would not likely be so over-broad and it could validly be used to distinguish those to whom possession of firearms could be justifiably denied.

.

[beevul]

58. Holy Cow!! I agree with you!!

Iverglass,

You make some really good points, most of which were answers to the questions I have been asking myself since I posted this. It can be verry confusing and contradictory, as issues go. In all sincerity, I have been a lurker here for a good long time, web based e-mail for the longest time, etc, but based on my "pro-gun" views, I didn't ever think you and I would see "eye to eye" on much in JPS, let alone our first dialog. To this however:


"Perhaps what is needed is to go back a step, and ensure that "felonies" and "misdemeanours" are actually properly classified, or that specific felonies (or even some misdemeanours) are used for the classification exercise, so that the former category would not likely be so over-broad and it could validly be used to distinguish those to whom possession of firearms could be justifiably denied."

I could not agree more. This would be good way of better identifying those that should NOT have firearms(I know, you said that)without effecting gun owners as a whole.

Done fairly, this is a great idea , and needs its own thread, IMO. Mind if I use the above quote to start another thread?

That was the missing piece I was looking for.
:toast:

[iverglas]

69. oh, no

Not another agreement-fest ... (did you catch me + DoNotRefill, WhiskeyTangoFoxtrot & jhfenton re: self-defence?). That just means we're going to have to fire off another 21 firearm salute, I suppose. I do prefer champagne. Veuve Clicquot. Or Henkell, for everyday. (Way back in law school, I woke up one Sunday morning with a hankering for champagne. No liquor sales on Sundays in Ontario, then. Had to call a very rich classmate of mine and borrow a bottle of what she had, which introduced me to Henkell.)

"I could not agree more. This would be good way of better identifying those that should NOT have firearms(I know, you said that)without effecting gun owners as a whole."

Just keep in mind that I said "maybe". ;)

I think that we do have a situation similar to the overall firearms-problem one, in which people are constantly saying we should work on the "root causes" of the problem. You know, poverty, gross income disparities, all that.

The US criminalizes its citizens -- in the sense of giving them criminal convictions/records/sentences -- at enormously high rates compared to, say, Canada. So I quite understand the apprehension that a blanket prohibition will be overbroad ... if everybody who ever wrote a bad cheque in the US were affected by any rule, you'd have what, half the population?

(We never could understand the US propensity for writing cheques for, like, $3.67 in KMart, like the people I always seem to end up standing behind when I'm in the US always seem to be doing. I suppose some of those cheques are for money that isn't there, of course. My city was one of 3 used for the pilot project for debit cards, years ago, and took to them like a duck to water. Nobody here has written cheques for retail purchases for a long time. Mind you, way back before that, the reason I got a driver's licence at the age of 27 was that I'd been called to the bar ... and still couldn't write a cheque in a store because I had no ID. But damn -- rather than prosecuting people for bad cheques, why don't retail stores just refuse to take cheques and insist on debit card payment?? Technology to the rescue, saving people from themselves.)

Where was I ...

Ah yes. The trick in everything is asking the right questions. I haven't actually answered the question, you notice -- just asked it. Both our answers will have to conform with the actual rules for determining whether rights violations are "justified" -- but there is certainly wiggle room in making that determination. Which side you flop to, when there is enough room to wiggle, will depend on things like how important you consider the public objective to be achieved and how important you consider the right to be restricted, and how strong the argument is that interfering with the exercise of the right will (or will not) contribute to achieving the public purpose. Ultimately, there has to be some choice made. Which is, after all, why we have Supreme Courts.

I do recommend that Supreme Court of Canada decision on inmate voting rights for a situation in which a court completely rebuffed the govt's attempt to restrict the exercise of rights for no good reason at all.

http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol3/html/2002scr3_0519.html
Sauvé v. Canada (Chief Electoral Officer), <2002> 3 S.C.R. 519

Also, for US constitutional scrutiny (understanding what the questions are and how to answer them):
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm
Levels of Scrutiny under the Equal Protection Clause
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/home.html
Exploring Constitutional Law

.

[beevul]

75. Good post, good points.

"Not another agreement-fest ... (did you catch me + DoNotRefill, WhiskeyTangoFoxtrot & jhfenton re: self-defence?). That just means we're going to have to fire off another 21 firearm salute, I suppose."

I do seem to recall something like what you're describing, but I forget the particulars at the moment. I'm still a wee bit under the weather.

"Ah yes. The trick in everything is asking the right questions."

Aint that the truth!

"I haven't actually answered the question, you notice -- just asked it. Both our answers will have to conform with the actual rules for determining whether rights violations are "justified" -- but there is certainly wiggle room in making that determination. Which side you flop to, when there is enough room to wiggle, will depend on things like how important you consider the public objective to be achieved and how important you consider the right to be restricted, and how strong the argument is that interfering with the exercise of the right will (or will not) contribute to achieving the public purpose."


That sounds to me verry balanced, though we may not "flop" to the same side, on the particulars of it, I believe its a fair "question".
I'm no legal expert by any means, so I am unsure how this could be applied in the US.

Not to go too far off topic, but coincidentally...This reminds me of pumping gas:

"My city was one of 3 used for the pilot project for debit cards, years ago, and took to them like a duck to water."

Its funny you mention that, I moved to AZ a little over a year ago, and was used to pumping gas then paying for it after. I guess life in rural MN spoiled me. (Expensive, but a GREAT place to live!)
So I move to AZ and everything is prepay. Lots of debit card use. Here too they seem to have really taken to them as well. I still haven't gotten used to pre-pay...lol.

Forgive my silliness, I'm running on caffeine ,nicotine, cefalexina,
and ibuprofen.Haven't had much sleep in the last few days.

[iverglas]

79. people of good faith, ...

... speaking honestly and addressing an issue sincerely, may not agree on the conclusion to be reached, but will at least actually know what the other person thinks and why, and have some confidence that the other person knows what they think and why. And hopefully will have reinforced the mutual commitment to certain basic values, and each person's confidence in the other's commitment to them. In a democracy, those are the absolute minimum requirements for addressing public policy issues.

"Forgive my silliness, I'm running on caffeine ,nicotine, cefalexina, and ibuprofen.Haven't had much sleep in the last few days."

I'm trying to avoid staying up for 2 days straight to finish jobs I've procrastinated far too long on, having reached an age and acquired chronic aches and pains that make it inadvisable. But next time I do, and there will be a next time before too long, and have exceeded the recommended daily dosages of diet coke and Matinée Slims Extra Mild 100s, I'll try to recall all this agreeableness and not aim the resulting badly barbed wit in your direction. Or not. Ha.

Anyhow, my point, and I do have one, was to draw your attention to my post way down at the bottom about the biggest surprise or something -- the Canadian law about prohibitions on firearms possession (i.e. licences, which are required for possession). You might find that it's just about what you're after. Try not to fall over.

I encountered the mandatory pre-paid gas system when driving from upstate NY to FL last spring. It can cause problems on that kind of trip, I gather, because the "drop" that the thing charges to the card is usually twice what the gas is likely to cost, and one can hit one's credit limit unexpectedly. It's actually common here in big cities, and some places at night I think. Where I'm at, it's less so. My local PetroCan instituted it in the outside fill-up lane a while back, apparently because the attendant can't see over there too well and it's too easy to slip in and out of that lane, from and to a very busy street, and not be seen or have your licence no. recorded. I marched into the booth to make my cash deposit - and complain about it - when I unwittingly hit that lane on a busy day (don't use credit cards for current expenses, didn't think of the debit card), and it seems I looked sufficiently grumpy or un-criminal that he just told me to go ahead and fill up.

.

[jody]

33. Sorry, but you make a statement that was not correct as I pointed out.

[CarinKaryn]

35. Confused, fly and I both think fly said that.

[Superfly]

37. Don't put words in my mouth.

What did I say?

[jody]

40. Sorry, but that is not true and the series of replies confirms it.

Good bye. :hi:

[CarinKaryn]

45. I'll drop this part and apologize to fly...

I don't speak for him but I thought I was citing something he said. Now I'm not even sure what you are referring to.
Bye (for now) :hi:

[Superfly]

46. Accepted.

Can't we all just be friends?

[CarinKaryn]

49. Yes, we can be friends

as soon as we have enacted reasonable restrictions on dangerous weapons that will protect ALL people, not just the most heavily armed.
:)

[Superfly]

50. Ha, ha, ha....

good one. :)

[jody]

53. As a start, please provide the essence of a law that enacts "reasonable

restrictions on dangerous weapons that will protect ALL people, not just the most heavily armed."

In the majority of states, citizens have the inalienable right to defend self and protect property. Depending upon the interpretation of Amendment 14, that right may apply to every state. Handguns are the tool of choice by criminals and LEOs and they don't have an inalienable right of self defense. A ban on handguns would prevent law abiding citizens from exercising their inalienable right of self defense.

We already have laws to keep firearms out of the hands of certain people, e.g. TITLE 18 > PART I > CHAPTER 44 > Sec. 922. - Unlawful acts. What changes or additions do you propose?

ON EDIT ADD
A recent report examined a number of research reports and found
QUOTE
Summary

During 2000--2002, the Task Force on Community Preventive Services (the Task Force), an independent nonfederal task force, conducted a systematic review of scientific evidence regarding the effectiveness of firearms laws in preventing violence, including violent crimes, suicide, and unintentional injury. The following laws were evaluated: bans on specified firearms or ammunition, restrictions on firearm acquisition, waiting periods for firearm acquisition, firearm registration and licensing of firearm owners, "shall issue" concealed weapon carry laws, child access prevention laws, zero tolerance laws for firearms in schools, and combinations of firearms laws. The Task Force found insufficient evidence to determine the effectiveness of any of the firearms laws or combinations of laws reviewed on violent outcomes. (Note that insufficient evidence to determine effectiveness should not be interpreted as evidence of ineffectiveness.) This report briefly describes how the reviews were conducted, summarizes the Task Force findings, and provides information regarding needs for future research.
UNQUOTE

[DoNotRefill]

68. In other words, "no, we can't be friends".

Friends don't let friends take away each other's civil liberties.

[CarinKaryn]

19. See Post #6 and ask JHFenton...

if he's just scared.

Or are you scared too?

[Superfly]

24. I asked you first.

So are you scared?

[CarinKaryn]

28. Nice try

It has to be scared or progressive?

My answer is "goldfish."

[Superfly]

30. Just as I suspected.

Little to no reading comprehension.

[CarinKaryn]

38. I don't answer "do you still beat your wife" questions.

Go figure. :shrug:

[Superfly]

39. What in the sam hell ARE you talking about?

:shrug:

[CarinKaryn]

47. The question you asked was...

"are you a progressive or are you just scared?"
as if the only choices were
1)scared
2) progressive, and support giving guns to felons as they walk out the prison gates.

I choose none of the above and answer progressive who believe in reasonable protections from violent criminals, including, if necessary, prison time, supervised parole and restrictions on their possessions of dangerous weapons.

Got it now?

[Superfly]

51. Then what was the "beating your wife" bit?

:shrug:

[iverglas]

54. here's one for you

What colour is orange: true or false?

Seems to apply in the circumstances. ;)

.

[DoNotRefill]

25. You need to ask yourself the reason for incarceration.

There used to be at least lip-service paid to the concept of rehabilitation. That's no longer true, the purpose for incarceration is now one of incapacitation. We incarcerate people for crimes that are not worthy of incarceration (like non-violent drug offenses) and that takes resources away from keeping the people who pose a real ongoing threat to society in jail.

People who pose an actual threat to society (as demonstrated by their previous actions) should be kept in jail until such time as they no longer pose a threat to society. People who don't pose a threat to society shouldn't be in jail in the first place. Once a person is released from jail, why should we continue to deprive them of their various civil rights? Doesn't that stigmatize and marginalize them? Given that they're stigmatized and marginalized, doesn't that make it much harder for them to become productive members of society? Doesn't denying them their rights help to drive them to recidivate?

And where do you get the idea that I'm opposed to probation/parole, work-release, and things like that? Provided that it's a term of their sentence, I have no problem with those programs.

[MrBenchley]

13. Agreed

This is yet another really extremist thread...

[a2birdcage]

22. Kind of like.......

your extremist agenda?

[MrBenchley]

42. Gee, I'm not the one pushing to re-arm felons

or to put assault weapons back on the street....or to make one of the most corrupt industries in America immune from liability.

[a2birdcage]

44. Who's putting assault weapons......

back on the street? I can get the same functioning AR-15 today that I could have bought pre-1994 with the exception of a flash suppressor, bayo lug, and telestock not being allowed. So I ask you who's putting assault weapons back on the street? They were never there in any big number in the first place.

On another note the gun industries will not be immune from liability if they break the law or sell a defective product to someone. What they will be immune from is frivolous suing from people like yourself who want to blame the maker of the gun for killing their loved one. Please read below to educate yourself about the bill. Especially what it does not protect which I kindly bolded for you. Your gun control/banning agenda is failing and you and the rest of the pathetic freedom haters know that the only way to stop the firearms industry is to bankrupt them. This is a good bill like it or not Bench.

H.R. 1036, as was its predecessors, was introduced presumably in response to these lawsuits. The bill prohibits civil actions from being brought against manufacturers or distributors of firearms or ammunition products, or trade associations of such manufacturers or distributors, for damages resulting from the criminal or unlawful misuse of a firearm by the injured person or by a third party. The bill further requires the dismissal of any action encompassed by the bill pending on the date of the bill’s enactment. Under the specific terms of the bill, only five specified causes of action would be permissible against protected members of the gun industry. They are (1) transfers where the transferor has been convicted of violating Section 924(h) of title 18; (2) actions alleging negligent entrustment (as defined in the bill) or negligence per se; (3) actions alleging knowing and willful violation of a federal or state law relating to the sale or marketing of the product, where the violation was the proximate cause of the harm; (4) breach of contract or warranty claims; and (5) actions for physical injury or property damage directly due to the design or manufacturer of the product, when used as intended.

[a2birdcage]

55. You've been defeated!

Failure to answer the questions qualifies as defeat.

[MrBenchley]

59. Only among people

who think Mary Rosh is a real scientist.

[a2birdcage]

61. Did you read the bill?

You keep telling everyone on this site that the gun industry will have complete immunity to anything it does. Would you please tell me how that is?

[MrBenchley]

63. Yeah, I did read the bill

Now go peddle the NRA propagnada to someone who cares.

[jhfenton]

64. "Now go peddle the NRA propagnada to someone who cares"

because MrBenchley can't be bothered with the facts.

[MrBenchley]

66. No, because Mr. Benchley

is too smart to fall for it.

[a2birdcage]

70. Then answer the question please.

How will the gun industry be completely immune to any law suits like you claim? I'm not asking much here Bench. All I want is an answer to a claim you made.

[MrBenchley]

73. Been there, done that

long ago...nor am I the only one who has....

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=21126&mesg_id=21340&page=

[a2birdcage]

77. So how was Bushmaster

negligent when Malvo stole the gun from the shop. Also, it's not Bushmaster's job to investigate the shop for wrong doing. It's the fucking ATF's job to do so and then tell Bushmaster about it. The ATF were the ones that let this shop stay open for as long as it did. Believe me, it's not about negligence. It's about emotion and hatred. By the way thanks for answering for yourself. Your ignorance is apparent by letting someone from another country make up your mind.

[a2birdcage]

71. I will take that as.........

you admitting you were wrong. If you read the bill, which you said you did, then you would see where it only protects the gun industry from frivolous suits brought on by people who's only thinking is done with emotion instead of logic and reason and not from illegal activity. That's a big step forward for you Benchly. I know you stated it indirectly but none the less at least you admitted it. Bravo!

[MrBenchley]

74. RKBA logic: Glad I don't have any

"where it only protects the gun industry from frivolous suits brought on by people who's only thinking is done with emotion instead of logic and reason and not from illegal activity."
Such as:
* Gary, Indiana
* Washington, DC
* Camden, New Jersey
* Newark, New Jersey
* Camden County, New Jersey
* St. Louis, Missouri
* Cincinnati
* Wayne County and Detroit, Michigan
* Cleveland, OH
* Chicago & Cook County, Illinois
* Jersey City, NJ
* New York, New York
* Wilmington, Delaware
* Bridgeport, Connecticut
* Miami/Dade County, Florida
* New Orleans, Louisiana
* Boston, Massachusetts

Who the hell are you trying to kid?

[a2birdcage]

78. What are you talking about?

Are you trying to say that these cities are suing the gun business or what?

[jhfenton]

62. Red herring

"Mary Rosh" = another MrBenchley red herring

You've brought that up a few times now, so I'll add it to the official list of "Gun Dungeon Red Herrings: Distracting Issues to Raise When You Have Nothing Better to Say."

[MrBenchley]

65. Gee, Fenton, its right on the money

or is shouting "red herring" another RKBA "victory"?

And for the record it's actually off the official list of "How stupid ARE gun nuts, anyway?" As in:
--So stupid that they think that Mary Rosh is a real scientist.
--So stupid that they think that David Duke and the Aryan Nation are fooling anyone with their "gun rights" hooey.
--So stupid that they think that John AshKKKroft and Tom DeLay are acting out of respect for the US Constitution and the rights of citizens.

[jhfenton]

67. You're on a roll

Three of your favorite "red herrings" in one post. Good job.

[Nikia]

18. Difficult issue

I could see why people might be afraid of convicted violent criminals owning guns. On the other hand, people should have all their rights restored after their serving sentence. Perhaps, there could be some kind of violence counseling as part of their parole. The counselor and parole officer could recommend restoring that right or denying it based on the progress of the person. Losing the right to bear arms could also be part of the sentence instead of happening automaticly.

[beevul]

41. Difficult issue indeed

"And I think that the point of this was what are they doing out of jail if they're still a threat to society? And if they're not a threat to society, why shouldn't they have their rights back?"

That is correct.


What are they doing out of jail if they're still a threat to society?

I'm not sure I'm convinced that someone who is enough of a threat to society to merit being barred from firearm ownership/possession should be walking around freely with access to all the potentially dangerous things in the world besides and in addition to firearms.

But on the other hand, I also agree with this:

"You do a crime.
You are convicted of a crime.
The judge sentences you to x years in prison as punishment for your crime.
At the end of your sentence, you are once again released on your own, without state supervision, because you have REPAYED your debt to society."

It's really hard to reconcile this whole subject within itself to any real degree of consistency.

I believe giving folks a second chance, but where should the line be drawn? Also, I wasn't thinking so much about felons specifically, but more generally prohibited persons. Prohibited persons in-general are an even more diverse group than felons, and that makes it even harder to get any semblance of "equal protection" or consistency on this issue IMO.

Haveing what I believe to be bronchitis, and a 102 degree temp, are not helping my judgement(or spelling) at the moment either, though.
I do appreciate the honest discussion happening in parts of this thread though.:thumbsup:

[jhfenton]

60. Great thread, strange twists

I'm sorry I missed so much of the back and forth.

I think iverglas did a pretty good job addressing most of the legal/philosophical issues. Of course, we can come to different conclusions on those issues, but he accurately sets out what the issues are.

"The state IS JUSTIFIED in limiting the exercise of rights in order to protect the public. The questions are, basically:
- is the interference with the exercise of rights likely to contribute to achieving the objective of protecting the public?
- can that objective be achieved without interfering with the exercise of the rights? i.e. are there less intrusive ways of achieving the same objective?
- is the interference with the exercise of rights so serious that the objective does not outweigh the harm done?

Maybe someone will address his/her mind to those questions in relation to prohibitions on firearms possession by convicted offenders."

I agree with iverglas that the question of the rights of felons is not an all or nothing prospect. We pick and choose and draw lines in the law all the time. Some lines are easy; others are tougher.

Now, my take on the issues:

Voting: I see no reason why felons, whether in prison or not, shouldn't be allowed to vote. The right is fundamental, and its exercise by felons poses no danger to society.

Post-incarceration Monitoring: This is a tougher situation, but as long as the post-incarceration deprivation of rights is on the books before the offense is committed, then the monitoring is just another aspect of the punishment for the crime. So, philosophically, I have a problem with ex post facto registration of former sex offenders. I have no problem with current and future registration of convicted sex offenders. The restrictions are reasonable and justifiable, based on the risks posed to society. Sex offenders are particularly likely to re-offend.

Firearms Possession by Felons: This is not an all or nothing proposition either. I would draw distinctions between violent felons and non-violent felons. Those who have conclusively demonstrated that they are a danger to others should not possess firearms. They pose too great a risk. Non-violent felons have not crossed the line of using violence against a fellow human being, so should not have forfeited the right to protect themselves with firearms.

[iverglas]

72. and here's the really big surprise

Not only are inmates permitted to vote in Canada ... Canada's restrictions on eligibility for licences to possess firearms appear to be much less severe than those in the United States. (If I'm understanding US restrictions relatively correctly: all "felons" are subject to prohibition, at least in some states?)

A licence is required in order to possess a firearm.

Firearms Act, 1995: http://www.canlii.org/ca/sta/f-11.6/whole.html

AUTHORIZED POSSESSION
Eligibility to Hold Licences
General Rules

Public safety
5. (1) A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.

Criteria

(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge shall have regard to whether the person, within the previous five years,

(a) has been convicted or discharged <found guilty but not convicted> under section 730 of the Criminal Code of

(i) an offence in the commission of which violence against another person was used, threatened or attempted,

(ii) an offence under this Act or Part III of the Criminal Code,

(iii) an offence under section 264 of the Criminal Code (criminal harassment), or

(iv) an offence relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances Act;

(b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person; or

(c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person.

Exception

(3) ... (rules for non-residents of Canada)

Court orders

6. (1) A person is eligible to hold a licence only if the person is not prohibited by a prohibition order from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition.

Exception

(2) Subsection (1) is subject to any order made under section 113 of the Criminal Code (lifting of prohibition order for sustenance or employment).

Successful completion of safety course

7. (1) An individual is eligible to hold a licence only if the individual ... <rules regarding completing safety courses>

That reference to s. 113 of the Criminal Code indicates that even people under orders prohibiting them from possessing firearms (i.e. individualized orders against them personally, not blanket prohibitions) may apply for and be given authorization to possess firearms: http://www.canlii.org/ca/sta/c-46/sec113.html

113. (1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of a competent authority that

(a) the person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person's family, or

(b) a prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to the person,

the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing a chief firearms officer or the Registrar to issue, in accordance with such terms and conditions as the competent authority considers appropriate, an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employment purposes.

Factors

(2) A competent authority may make an order under subsection (1) only after taking the following factors into account:

(a) the criminal record, if any, of the person;

(b) the nature and circumstances of the offence, if any, in respect of which the prohibition order was or will be made; and

(c) the safety of the person and of other persons.

Effect of order

(3) Where an order is made under subsection (1),

(a) an authorization, a licence or a registration certificate may not be denied to the person in respect of whom the order was made solely on the basis of a prohibition order against the person or the commission of an offence in respect of which a prohibition order was made against the person; and

(b) an authorization and a licence may, for the duration of the order, be issued to the person in respect of whom the order was made only for sustenance or employment purposes and, where the order sets out terms and conditions, only in accordance with those terms and conditions, but, for greater certainty, the authorization or licence may also be subject to terms and conditions set by the chief firearms officer that are not inconsistent with the purpose for which it is issued and any terms and conditions set out in the order.

Food for thought.

Now, I know that none of this will satisfy the "shall issue" fans. The thing is, though, that in Canada, we have a very sophisticated body of administrative law, resulting in stringent rules governing the exercise of discretion by administrative/government authorities (i.e. the "executive"). A lot of the refinement of the basic rules of "natural justice" (audi alteram partem - hear both sides - and all the rest of them) originated in immigration cases; starting in the 70s, the immigration bar tackled immigration and refugee decision-making head on and hard, and the courts responded by imposing ever more requirements on the exercise of discretion.

Canadians are an extremely litigious bunch when it comes to interference with the exercise of rights, although I know that goes against our image as complacent and compliant. Improper exercise of discretion under the firearms licence eligibility rules would be met with just as close judicial scrutiny as in any other situation -- although certainly our courts are not bound by any notion that the possession of firearms for self-defence is some sort of inherent right, and do consider arguments that rights limitations are necessary in the public interest with the attention they warrant in Canadian society, if not the deference the government might hope for.

So the surprise is that it looks like a smaller class of criminals is prohibited from possessing firearms in Canada than in (at least some parts of?) the US. Who'd 'a thunk it. Another misconception put to rest?

.

[beevul]

76. Agreed

"I think iverglas did a pretty good job addressing most of the legal/philosophical issues. Of course, we can come to different conclusions on those issues, but he accurately sets out what the issues are."

Of course, correct me if I'm wrong, but isn't Iverglass a "she"?

No offense JH, just wasn't sure you knew.(if i'm correct, that is)

Otherwise, Like I say, I pretty much agree with everything in your post.



All this agreement is SCARY for J/PS especially since this is not an easy issue to wrap the mind around.

Edit:"we can come to different conclusions"

Now, the interesting thing will be the range of those those conclusions.