The 2nd Amendment Protects Individuals, Not Just the Collective
The 2nd Amendment vs. State Felon in Possession Laws
The following quote from Ayn Rand’s Atlas Shrugged describes the modern state of American law in the most accurate way possible:
“There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.
Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt.” (Emphasis added.)
When our great nation was founded, a grand total of 9 crimes were considered felonies: arson, burglary, larceny, manslaughter, mayhem, murder, rape, robbery, and sodomy. Now, we have thousands of regulatory crimes.
To quote a 30-page Tennessee Law Review article by Michael Cottone, titled Rethinking Presumed Knowledge of the Law in the Regulatory Age (published 2015):
“Tellingly, no exact number of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500.”
It’s gotten so bad that a Wall Street Journal article by L. Gordon Crovitz (last updated September 2009) used the headline “You Commit Three Felonies a Day” and went on to defend that claim. Three Felonies A Day: How The Feds Target The Innocent, a 392-page book was published in 2011 by Harvey Silvergate expanding that defense.
Even worse, you can 100% be prosecuted as a felon even if you didn’t knowingly commit a crime, let alone a felony!
In legal parlance, this is due to the “erosion of mens rea” requirements that existed in our original common law of crime tradition:
“A common law of crime requires a union of actus reus and mens rea, i.e. an act and a guilty mind. The mens rea requirement is the essential protection for the innocent.” (2013 treatise The Mens Rea Component Within the Issue of Over-Federalization of Crime)
Is there any doubt that gun control is an insidious issue plaguing our nation and threatening to “pass the kind of laws that can neither be observed nor enforced or objectively interpreted” thus creating “a nation of law-breakers”?
To quote Jews for the Preservation of Firearms Ownership (JPFO), “gun control” are “code words for disarming innocent people.”
Now, to be fair, according to the letter of the law as written, a felon – whether violent or non-violent – isn’t exactly innocent. But this brings us back to the fact that according to the letter of the law as written, the average American probably commits an average of three non-violent felonies a day.
It also brings up another, more philosophical question: what is the intent of incarceration, punishment or reform?
In a 2012 article titled Punishment Fails. Reform Works for the New York Times, James Gilligan (a clinical professor of psychiatry and adjunct professor of law) wrote “The only rational purpose for a prison is to restrain those who are violent, while we help them to change their behavior and return to the community.”
Arguably, we could expand that idea to include the reformation of nonviolent criminals such as embezzlers. While not necessarily needing to be restrained from causing physical harm to members of society, such criminals essentially attack other civil liberties and need to be restrained from doing so.
But the fact (and the research) remains the same: if incarceration is intended to punish criminals, it fails to protect society. And if incarceration is intended to reform criminals, it’s currently failing to do so.
We’ve seen time and time again that gun control leads to an increase in violent, often (though not always) gun-related crimes. This is because, when violent criminals are the only ones with access to guns, law-abiding citizens do not have an adequate means of self-defense.
If, on the other hand, the legal system and the act of incarceration did what they’re meant to do – protect the innocent and reform the guilty – then arguably, even violent criminals ought to have their Second Amendment rights reinstated upon release.
Let’s face it – denying any legal US citizen their Second Amendment rights counts as gun grabbing.
We can argue it would be irresponsible to allow violent felons to keep and bear arms, but then we need to consider why such persons are released from prison in the first place.
If they can’t be trusted to exercise restraint while in possession of a firearm, then why do we trust them to exercise restraint while having easy access to a motor vehicle?
The analogy isn’t as strange as it might seem. According to the Center for Disease Control’s 2017 statistics “all firearm deaths” totalled 39,773 while “motor vehicle traffic deaths” totalled 38,659.
Now consider the fact that for the same year, the CDC recorded 23,854 “firearm suicides” and we’re left with 15,919 gun-related deaths (which still include self-defense by citizens and law enforcement) vs. 38,659 deaths as a result of motor vehicle accidents.
Let’s take a look at a 2018 case, where US District Court for the Southern District of Illinois Judge J. Phil Gilbert reinstated a nonviolent felon’s Second Amendment rights.
Plaintiff Larry Edward Hatfield… embeds his argument in United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010), which instructed that “[the Supreme Court’s decision in D.C. v. Heller, 554 U.S. 570 (2008)] referred to felon disarmament bans only as ‘presumptively lawful,’ which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge.” If there is any case that rebuts that presumption, it is this one. So for the following reasons, the Court GRANTS summary judgment in favor of Plaintiff Larry E. Hatfield.
So there you have it. A legal precedent showing, by our understanding, that the Second Amendment protects individual rights, means state felon in possession laws are – at the very least with nonviolent felons – Unconstitutional.
And the only reason this isn’t fully recognized in every state is because gun grabbers are fighting to create a nation of law-breakers. We need to fight back.