October 05, 2022
After ruling just a few weeks ago that this summer’s Bruen ruling by the U.S. Supreme Court renders the law unconstitutional that disqualifies people under felony indictment from having a gun, a federal judge in Texas this week ruled in a different case that the prohibition on convicted felons possessing a firearm remains intact.
Arguing that the ban on felons owning a firearm survives scrutiny under the new standard laid down in New York State Rifle & Pistol Association v. Bruen, Judge David Counts of the U.S. District of Western Texas wrote in his recent ruling: “Bruen did shake up the legal landscape. And the Court believes that faithfully following Bruen’s new framework casts doubt on some firearm regulations. But the regulation in this case is not one of them.”
Despite finding in the earlier ruling that no laws during the founding era were discovered that dealt with felon firearms possession, Counts ruled just the opposite in the recent case.
“… even with a longstanding general concern for public safety, history lacks direct examples about felons specifically,” he wrote. “But just because there are no straightforward examples does not mean the Court’s historical inquiry stops there.”
In truth, there’s no indication in the historical record that the authors of the Second Amendment ever intended to ban those convicted of felonies from possessing firearms. That goes double for the current lifetime ban that doesn’t allow convicted felons (of federal crimes which includes non-violent ones) to have their rights restored after serving their sentence and paying their debt to society.
Since rights are God-given and recognized by the government—not granted by the government—it’s unconstitutional for the government to “infringe” those rights on a lifetime basis. After all, if one has no freedom after punishment, aren’t they still being punished? Such a lifetime ban is another example of Justice Clarence Thomas’s contention that courts have been treating the Second Amendment as a “second class right.”
However, Judge Count didn’t see it that way, writing: “Felons are those who have abused the rights of the people. And as outlined above, this Nation has a ‘longstanding’ tradition of exercising its right—as a free society—to exclude from ‘the people’ those who squander their rights for crimes and violence. Consistent with Heller and Bruen, the Second Amendment should be no different here.”
Although convicted felons currently lose the right of possessing firearms (ATF uses the word “privilege” instead of “right”), a 1965 amendment to the Federal Firearms Act of 1938 allows convicted felons to apply to the Bureau of Alcohol, Tobacco, and Firearms for "relief" from the "disability" of not being able to possess a gun. However, in 1992, Congress barred the Bureau of Alcohol, Tobacco, Firearms and Explosives from spending money to review and investigate a felon's application to restore gun rights, leaving those who have served their sentence with little opportunity to have their rights restored outside of a presidential pardon
The U.S. Supreme Court had a chance to right some of these wrongs last year when three separate challenges by Americans convicted of nonviolent felonies and looking to have their rights restored reached the high court. Unfortunately, the court chose not to hear any of the challenges, which involved such heinous crimes as selling counterfeit cassette tapes and making false statements on tax returns.
About the Author
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for over 20 years.