Damon Lucky is hardly the poster boy that the N.R.A. is looking for as the critical constitutional case for the Second Amendment goes to the Supreme Court. As gun owners seek to show that the Second Amendment is an individual right, Lucky wants a federal court to declare that the individual right extends to ex-felons — striking down the common rule that ex-felons lose their right to gun ownership or possession.
The case filed by lawyer, Harry Batchelder Jr., has little merit. The appellate panel on the D.C. Circuit expressly noted that, while it was handing down a historic ruling in favor of the individual rights theory of the Second Amendment, it believed that reasonable restrictions could be placed on that right. Banning ex-cons would seem a very reasonable restriction.
It is hard to see the point of this filing except mischief. I recently penned a column supporting the individual rights theory. Yet, it is important to understand that all rights have some limitation, even freedom of speech. Cases like Lucky’s serve to undermine the central debate by creating a “parade of horribles” that really does not exist. The fact is that the Second Amendment appears to contain a long-ignored individual right. While many Americans may not like it, it is there in fairly clear terms, in my view. I am hopeful that the Supreme Court will recognize that right and then we can have a good faith debate over what reasonable restrictions can be placed on such a right.
As for Mr. Lucky, his luck will likely run out in the first court that reviews this filing.
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I do not accept the premise that the Second Amendment grants any private INDIVIDUAL the RIGHT to a gun (let alone the plethora of deadly have a legal right).
One very real danger of the Lucky case is that the fallout from the ruling could make it harder to obtain reinstatement of Second Amendment rights in future cases that aren’t so frivolous. For example, there’s the United States v. Bean case in which Thomas Lamar Bean, a gun dealer, was convicted in a Mexican court for accidentally leaving some 200 rounds of ammunition in his vehicle while crossing the border into Mexico. Despite Bean’s insistence in court that he asked his associates to ensure that the vehicle was cleared of all ammunition before heading across the border in order to comply with Mexican law, the provisions of 18 USC 922(g)(1) stated that Bean’s felony conviction under Mexican law trumped his apparently spotless record in the United States, and thus he was forbidden from owning guns in America, let alone selling them.
Josh Sugarmann of the Violence Policy Center recently referenced the Bean case in a recent Huffington Post article critical of the recent NICS overhaul, but he failed to indicate how Bean obtained his felony status in the first place. By the same token, certain violations of Sharia law in a nation such as Saudi Arabia and Iran are also considered felonies, even if such acts are considered purely lawful within America, but 18 USC 922(g)(1)states that conviction in a Sharia court of such trivial acts would prevent legal immigrants from such nations from ever owning firearms in America. This is one facet of 18 USC 922 that warrants further study and reconsideration for the benefit of those who, despite being otherwise upstanding and law-abiding Americans, have become trapped in a legal loophole for the rest of their lives.
My thanks to David Codrea for providing some of this background information.