Late last week, Patrick over at Popehat posted an interesting entry about the North Carolina Supreme Court’s decision in Britt v. State. The short version is that Britt was convicted of quaalude possession (a felony) in the 1970s, sued to maintain his right to own firearms, and won.
The Court, in a 5-2 decision, limited its holding to Britt’s specific facts, finding that the exercise of state police power to bar firearms to a non-violent felon, who had demonstrated good character for thirty years, was an unreasonable restriction of the state right to keep and bear arms.
I strongly recommend going over to Popehat and reading all of Patrick’s excellent post. But I want to use it as a jumping-off point to discuss a question I’ve been wondering about, without hijacking Popehat.
Where does the State (I’m using “the State” to refer to both state and Federal governments) get the authority to deny Constitutional rights to felons?
Let’s take the right to vote, for example. I’ve looked over the Constitution, the Bill of Rights, and the various amendments. If I’m reading the Constitution correctly, the individual states have the authority to decide how electors are appointed, which could arguably allow denial of the right to vote in presidential elections to felons. (For that matter, it could arguably allow denial of the right to vote to other people as well, except for the specific exclusions of race, sex, 18 or over, and poll tax status in the various amendments. I can’t see anything in the Constitution that would prevent an individual state from allowing people over the age of 10 from voting for electors, if they wanted to. Or barring homosexuals for voting, if they could come up with a way of enforcing that. Not that I think any of these are good ideas; I’m just using them as examples.)
The only thing I can find that even references criminal activity is in the 14th Amendment:
But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
My reading of that section is that, if a state disqualifies males over the age of 21 from voting for being party to a rebellion “or other crime” (which could be construed to include felonies), then the basis for representation (that is, the population figure that’s used for determining the number of House members) will be reduced proportionally. I can’t find anything that actually gives the state the authority to disqualify voters; it could be argued that this authority is implied in the above.
The other thing I find striking about this issue is that the right to vote and the right to bear arms are actually treated unusually in this context. We deny those rights to people convicted of felonies; but we don’t deny freedom of speech, religion, 4th, 5th, or 8th Amendment rights to that same group, just to take a few examples. What’s the basis for this differing treatment?
I’m not a lawyer, or a law student; I’m someone who is interested in the law, and feels fairly confident that he can read and understand court decisions. I doubt I could keep up with Ken or Patrick in a discussion of the law (but I’d welcome the opportunity to test that over a good dinner some night). And I could be 100% wrong in my reading of the Constitution. But I just can’t find a basis for the denial of rights anywhere in the document.
I don’t like the idea of violent felons being able to own guns once they get out of prison. Something about letting them vote disturbs me, too. But the law and the Constitution have never been about what I like.
Fascinating question, well asked. Don’t know the answer. I may look.
I would guess it’s because perhaps the law is like a social contract. If you break your end of the deal (the law), then depending on the terms of your contract, the benefits that you are granted are taken away.
Example, rob a bank, go to jail. In jail you’ve had some of your rights suspended. You can’t live where you want or go where you want. Capital punishment removes your right to life. There seems to be some precedent set for things like this.