Virginia Governor Ignites Firestorm: Should Certain Felons Have their 2A Right Restored?

Virginia Gov. Terry McAuliffe. (Photo: Salon.com)

Virginia Democratic Governor Terry McAuliffe created some controversy last month when he announced his intention to restore the voting rights of some 200,000 Virginia felons via executive order. The order also reinstates the rights of Virginia felons to run for office, to serve on a jury, and to serve as a notary public, provided they have completed any release, parole, or probation requirements.

Republicans in Virginia’s General Assembly promptly countered by announcing their intention to sue McAuliffe, claiming the governor does not have the authority to restore felons’ constitutional rights en mass. His executive order, they say, is a clear-cut case of administrative overreach.

Republicans have also accused McAuliffe of political manipulation, holding that the order is nothing more than a political move meant to boost Hillary Clinton’s vote count in Virginia’s presidential election.

Democrats, meanwhile, see the Republican lawsuit as a thinly-veiled attempt to block a Democratic victory in the upcoming election at the expense of thousands of newly-reinstated Virginia residents. The Atlantic even goes so far as to note the racist roots of Virginia’s disenfranchisement laws, a not-so-subtle jab at Republicans looking to maintain the status quo.

But amidst the posturing and backbiting, few have had the courage to mention the elephant in the room: gun rights.

Under McAuliffe’s order, convicted felons can vote, run for office, serve on a jury, and act as a notary, but, according to the language of the order itself, “Nothing in this Order restores the right to ship, transport, possess, or receive firearms.” McAuliffe wants to restore Virginia felons’ right to vote, but he specifically and explicitly denies their right to keep and bear arms.

Anti-gunner bias seems to be fueling McAuliffe’s moves, but the broader question—should convicted felons have the right to own guns?—is a complex, multifaceted issue. There are persuasive arguments both for and against felon firearm ownership, a few of which I’ve tried to reproduce below.

For

If society trusts felons enough to allow them to serve on a jury and act as a notary, shouldn’t we trust them enough to own firearms? That’s the argument A. Barton Hinkle makes in a recent op-ed in the Richmond-Times Dispatch: “Having paid their debt, felons should be able to rejoin civil society as full members in good standing,” Hinkle writes. “Why shouldn’t the same principle that applies to voting rights apply to gun rights?”

Hinkle also notes the many instances of non-violent felony offenses, such as the possession of drugs, breaking and entering, burglary, the possession of “burglarious tools,” theft, and stealing a chicken worth more than $5. None of these offenses suggest a history of violence; neither do they warrant a lifelong suspension of constitutional rights.

Finally, like the Democrats in Virginia’s legislature, Hinkle points out the racist history of laws that deny black Americans the right to own a gun. “Depriving blacks of the right to arms was one among many ways that the South subjugated blacks,” he says. Since the vast majority of convicted felons in Virginia are African-American, McAuliffe’s order disproportionally affects that community and continues to deprive them of the right to defend themselves.

Ultimately, Hinkle concludes, we should encourage felons who have completed their probation or parole requirements to reenter society as first-class citizens. If this means we reinstate their right to vote, it also must mean we reinstate their right to own a firearm for self-defense.

Against

The argument against felon firearm ownership boils down to one simple formulation: because felons have demonstrated an unwillingness to obey the law, society shouldn’t trust them with the responsibility of owning a deadly weapon.

The anti-gun industry will ban guns wherever it can, so we shouldn’t be surprised to see this kind of argument being made by the anti-gun media. This Los Angeles Times article, for instance, calls the Heller Supreme Court decision (the one that solidified the individual right to keep and bear arms) “unfortunate,” and says that while society shouldn’t continue to punish felons for their crimes, “guns are a different matter.”

But consider this. The late Supreme Court Justice Antonin Scalia, a staunch supporter of the Second Amendment and author of the Heller decision, stated in that ruling that “nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons.”

If the anti-gun crowd was the only group arguing against felon firearm ownership, their arguments could be disregarded as nothing more than fear and anti-gun prejudice. But what do we do when one of the greatest champions for the Second Amendment also supports the prohibition on the possession of firearms by felons?

Scalia, of course, may have had ulterior motives for including that language in his decision. He may have done so as a kind of peace offering to the anti-gun community or as a way to prove his willingness to compromise. It is also possible that Scalia, despite his brilliance and defense of the Second Amendment, was simply wrong on this issue.

But Scalia’s stance encourages a closer look at the ownership and possession of firearms by felons. The pro-gun community rightly objects to gun control because it restricts the gun rights of law-abiding citizens. But what about citizens who have shown themselves to be non-law-abiding? Should they regain all of their constitutional rights upon the completion of their sentence, or should we restrict their ability to own or possess firearms?

Violent vs. non-violent?

One solution is for state and federal laws to distinguish between violent and non-violent crimes when determining the eligibility of a felon to own a firearm. In his criticism of Governor McAuliffe’s executive order, Peter Roff points out that

Just as all criminals are not the same, neither are all crimes… That a person who used a gun in the commission of a crime and went to prison for it should not have his gun rights restored is a persuasive argument. It is equally persuasive, however, that a person convicted of felony murder or a child molester is not as welcome back into society as someone who did time on a minor drug possession charge. The actions that landed them in prison are not equal from either a moral or legal standpoint; the consequences should not be equal either.

The problem with McAuliffe’s order—and all laws that prescribe blanket prohibitions on convicted felons—is that not all felonies are created equal. There is a huge disparity, in fact, between types of felony charges as well as what those charges suggest about the violent behavior of those who are convicted of them.

A person convicted of a drug charge, for instance, has not proven themselves to be a violent threat to society—with or without firearms. On the other hand, a person convicted of a violent crime—whether assault, manslaughter, or murder—has shown a willingness to use (illegal) violent force, and a firearm could make them all the more dangerous. This is not to say these individuals should never have their rights restored. As this study suggests, staying out of trouble for 10 years renders former felons just as likely to commit a crime as non-felons of the same age. But this survey from the Bureau of Justice Statistics estimates that nearly a third of felons convicted of a violent crime commit another violent crime within the first five years of release. Allowing these men and women to own a gun could escalate a subsequent assault into a murder.

It’s a tricky issue with no clean solution. Thousands of men and women convicted of violent felonies have turned their lives around, and are no more likely to commit another violent crime than any other citizen. While lawmakers and officials have a responsibility to pass laws and regulations that promote the safety of the general population, they must be careful to distinguish between types of crimes as well as individual criminals. They must also remember that criminals will obtain guns regardless of legality, and they cannot sacrifice the rights of the majority in their pursuit of the crimes of the few.

The good news is that Firearm Owners Protection Act of 1986 prohibits the federal government from passing McAuliffe-esque, top-down executive orders. The FOPA provides that the federal prohibition on firearms possession by a felon does not apply to individuals who have had their civil rights restored by the state where the felony conviction occurred:

“Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly [or implicitly as a matter of state law] provides that the person may not ship, transport, possess, or receive firearms.”

This gives states the power to determine which kind of crimes deserve a lifelong ban on Second Amendment rights and which do not.

Currently, 21 states distinguish between violent and non-violent crimes when determining the eligibility of felons to own or possess firearms: Alabama, Alaska, Idaho, Louisiana, Massachusetts, Michigan, Minnesota, Montana, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia, and Wyoming. Many of these states include a five or ten-year waiting period, and some states not on this list simply reinstate a felon’s gun rights no matter the crime.

To distinguish between violent and non-violent crimes seems like a good way to maximize liberty while protecting life and property, but no solution is perfect. The Second Amendment is no less important than the First Amendment or the right to vote, and lawmakers need to understand the seriousness of a lifelong ban on the right to keep and bear arms. Governor McAuliffe clearly does not understand this principle, and residents of Virginia would do well to take their governor to task for his explicit denial of Second Amendment rights.

About the Author: Jordan Michaels is a new convert to the gun world. A Canadian immigrant to the United States, he recently became an American citizen and is happily enjoying his newly-acquired Second Amendment freedoms. He’s a communications professional, a political junkie, and an avid basketball fan.