When We’re All Convicted Felons, No One Will Legally Own A Gun

By Jeff Riley

"There is no way to rule innocent men. The only power any government has is to crack down on criminals. 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 the law. Create a nation of lawbreakers and then you can cash in on the guilt. Now that’s the system!”

Atlas Shrugged - Ayn Rand

Most gun owners are somewhat familiar with laws regulating firearms. Every person who has purchased a firearm through a Federally Licensed Firearm Dealer has filled out a BATFE 4473 form and has been submitted to a NICS background check. Part of that check is to verify that you are not a prohibited person, one who is legally not allowed to purchase, own, or possess a firearm. From the Gun Control Act of 1968, Title 18, United States Code, Chapter 44, and amended throughout the years a prohibited person is in part:

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(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) is a fugitive from justice;

(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) has been adjudicated as a mental defective or has been committed to any mental institution;

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child

I would like to focus on one particular group and single them out: convicted felons. I don’t think that in 1968 (or even today) that you would hear any argument against enacting laws that would prohibit violent criminals from possessing firearms. After all the “reasonable gun control” crowd is always saying “We don’t want to take law-abiding citizen’s firearms from them, we just want to keep criminals from getting guns.” A nice sentiment that on it’s face we can all agree with, right? Agree or not it, the law as written has caused unintended consequences. One that the anti-gun groups recognize and are now exploiting to advance their ultimate aim: banning the private ownership of all firearms in the United States with the exception of law enforcement and the military.

I am not going to argue here, and it is not my intent to advocate for the restoration of convicted felon’s rights. Like it or not, the current law prohibits firearm possession by convicted felons. I think that on the whole, those convicted of violent felonies have shown their disdain for the law and their fellow citizens. The courts have ruled that even after release there are certain rights that felons cannot exercise, voting being one, and firearms ownership another.

My concerns revolve around this fact…..the number of felons created by our criminal justice system is expanding dramatically. Felony laws used to be reserved for the most heinous crimes, crimes of extremes: murder, rape, kidnapping, treason, etc. This is not true in today’s justice system. The GCA of 1968 doesn’t discriminate between violent/nonviolent felonies. This is the crux of the problem. Let’s look as some examples of felonies:

Selling orchids without a license. The importation and selling of orchids is a violation of the Lacey Act and is a felony.

In Mississippi, it’s a felony to sell untagged oysters.

Shipping lobsters and lobster tails in opaque plastic bags instead of paper bags. David McNab, a seafood importer was convicted of violating the Lacey Act and is currently serving 8-years in prison.

Under West Virginia law, it is a felony to teach a bear to wrestle.

Under Ohio law, it is a felony to send spam, or unsolicited email advertisements. While I hate spam as much as the next guy, should it really be a felony?

I could go and on, but I think your see my point. In Gene Healy’s book, Go Directly to Jail: The Criminalization of Almost Everything, six essays catalog decent people caught in the indecent web of over 4,000 federal criminal laws.

In "Overextending the Criminal Law," Professor Eric Luna introduces us to the expanding federal criminal code, which now includes, to the extent that scholars can even count them, over 4,000 crimes. Worse, these crimes have come loose from the common law moorings that punished the evil, and acquitted the good. By eliminating the traditional requirement that a person is guilty only if he commits a guilty act motivated guilty mind, "legislators" are turning traditional "criminal sanctions" into "another tool in their regulatory toolkit."

While anti-gun groups, legislators, and prosecutors can’t accomplish by passing more anti-gun laws (realizing it’s virtual political suicide), they are quietly pursing their aims through the backdoor by increasing the pool of prohibited persons. After all who could be against keeping guns away from criminals? You could have the most lenient guns in the world for the law-abiding, but if everyone is a criminal prohibited from own a gun, you have accomplished by stealth what they fear to do in public. You have effectively disarmed the most of the populace without having to vote in favor for more gun control. Cowardly, but effective. In a society that is constantly being bombarded by news of crime, it is tempting to turn over more power to the government in the hopes that they will do something. What is seems they are doing is making more criminals. Think you’re immune? Glen Harlan Reynolds, a law professor in Knoxville, Tenn discussing this very issue of over criminalization made this statement:

“If you haven't been convicted of some felony or other, it's probably because no prosecutor has tried to put you away, not because you haven't committed one, whether you realized it at the time or not”.

Sobering words to think about. It’s time to recognize that we have a problem with over criminalization in this country and put our legislators on notice. Return felony law to it’s historical roots and reserve felony prosecutions for the most extreme crimes.

Jeff Riley is Buckeye Firearms Association Southwest Ohio volunteer.