So apparently the Second Amendment only protects your right to keep guns, not to buy them. At least according to the American government today.
It's also interesting how the federal government's interpretation of "the Power to regulate commerce among the States" in the Constitution keeps ever expanding...
Ruling: Montana felons can't own firearms after serving time, probation
According to a new judgment from the 9th U.S. Circuit Court of Appeals, Montana felons who have completed their sentence and probation will no longer be able to own firearms.
The decision last month upheld Missoula U.S. District Judge Donald Molloy’s decision that Frank Van der hule, who was convicted of four counts of rape and one count of sexual assault in 1983 and completed his sentence 13 years later, was not eligible to own a gun in Montana.
Montana is considered a restorative state, meaning under the Montana Constitution, felons who have completed their sentences and probationary periods have their rights restored — and technically can do things that regular citizens do, including possess a firearm and vote.
However, a federal statute states that felons are not able to purchase guns that have been in interstate commerce. In other words, if it’s not made in Montana, felons can’t purchase the firearm.
So when Van der hule attempted to purchase a gun in 2003, the firearms dealer ran a criminal background check and discovered that Van der hule’s prior convictions precluded him from receiving a concealed weapons permit under Montana law and also prohibited him from possessing a gun under federal law.
Van der hule filed a motion of declaratory judgment in Missoula U.S. District Court, seeking approval for his request to purchase a firearm. He later amended his complaint, arguing the laws precluding him from buying a gun violated his Second Amendment rights.
Not so, ruled Molloy. The appellate judges agreed. The circuit’s three judges ruled against Van der hule, saying Montana’s restriction prohibiting a convicted felon from possessing a concealed weapons permit “is a sufficient restriction of his firearm rights” to also prohibit him from purchasing any weapon. “He is accordingly forbidden to receive or possess a firearm under federal law and that ban does not violate his Second Amendment rights,” the decision stated.
Missoula attorney Lance Jasper said he represents many felons who have had their rights restored under Montana law, and he is concerned about the scope of this decision. “I think when a felon completes their sentence and their rights are fully restored, then they have earned that privilege,” he explained. “That’s the way the constitution was written. It wasn’t my decision.”
Jasper said he doesn’t believe in giving guns to people convicted of violent crimes, but some of his clients are convicted felons who can’t get good-paying jobs because of their convictions and have been using their guns to hunt and provide meat for their families for years. “It’s another way for the federal government to try and (control) what goes on in our state,” he added.
It’s currently unclear how the Bureau of Alcohol, Tobacco, Firearms and Explosives —or local law enforcement — will handle the new ruling.
ATF regional spokesman Bradley Beyersdorf said last week he couldn’t comment on the enforcement of the new decision, and directed the Missoulian to contact the U.S. Justice Department.
Local gun dealer and former Missoula Police Officer Rich Ochsner said he’s prepared to abide by the court’s ruling, but added that he hasn’t been selling to violent criminals for years.
“(The decision) doesn’t surprise me that much,” he said. “Being a retired police officer, there are some times when people shouldn’t have guns.”
Ochsner, who owns Axmen Firearms, said a convicted rapist attempted to purchase a firearm from him a few years ago and he refused to sell to him.
“There was no way I would sell a gun to a person if I thought they wouldn’t be safe,” he said.
But most of the felons who attempt to purchase guns from him have received deferred sentences and their convictions have been quashed, Ochsner explained.
This ruling wouldn’t affect those people because their felony conviction wouldn’t appear on their record, but Ochsner is concerned about people who have been convicted of nonviolent felonies.
“What would the felony be?” he asked. “If it’s a felony DUI, should that person be a restricted person because they are driving drunk?”
“I know the law, and until it’s overturned, I am not going to sell them a gun,” he added.
But should people who have been convicted of a felony at some time in their past be banned for the rest of their life from ever being able to buy a gun?
Keep in mind that nowadays all sorts of things have become classified as "felonies", not necessarily just all the really bad crimes. Were you 18 years old and had consensual sex with your 17 year girlfriend in high school?
In some states, if you get caught drinking alcohol while driving three times it's a felony. You don't even have to have alcohol in the car the second and third time, they just have to detect alcohol in a breath analyzer test. That means you could have just drunk a cup of beer at a party, drove off in your car, and then got pulled over. Felony.
You could have mistakenly purchased a gun without properly filling out the right paperwork. Sometimes the law can be ambiguous and complex. Felony.
Even just making your own gun is a felony, if you have not gotten a registration permit first. So you could be banned for the rest of your life from ever being able to buy a gun, because you made a gun. How does that make any sense?
You don't even have to be convicted yet by a jury to be banned from legally buying guns. In the Gun Control Act passed in 1968, 18 U.S.C. 922 (d), there is a provision banning gun purchase if you are under indictment. That means if the government thinks you committed a crime.
And a lot of people who are arrested just plead guilty to crimes they did not commit when they cannot come up with bail money. To get a fair trial they would have to sit 9-18 months in jail, or they could just take a prosecutor's plea bargain (when the evidence is really flimsy, or the crime is not really that bad) and just be sentenced to 6 months in jail, without having to worry about the possibility of a much longer sentence. It happens all the time. Someone else hides drugs in your home and the police get a tip off. Or you are an accountant and your employer has been running a scam, unknown to you.
So first it is "felons". Which group of people will it be next?
2.4% of the adults in the U.S.A. have felony convictions, that's a fairly significant number of people. Seems like they're throwing out felony convictions right and left, looking for any excuse.
And once you get a felony, you have to get "permission" from someone higher up to have your rights restored. It does not happen automatically, even 10 years after the fact. Those convicted of a federal felony have to file a petition with a special Attorney office in the Department of Justice. There is a minimum waiting period of 5 years after the sentence. And these petitions to be allowed to buy guns again are not automatically granted. It's not just violent former criminals who are having their petitions denied. There have been all sorts of lawsuits over this: http://articles.philly.com/2000-09-2...-third-circuit