Restoring the Right to Keep and Bear Arms for Formerly-Dangerous Felons

February 16th, 2011

Eugene Volokh links to an opinion from the New York County Supreme Court (trial court in Manhattan) on felon gun possesion. Joseph Caputo applied to keep a handgun in his home. Ten years ago, Caputo was charged with several violent felonies (details here and here). His permit was denied, notwithstanding the fact that he has not committed any crime since his incarceration, he was hired by the New York City Police Department, where he was able to keep a gun, and has generally kept himself out of trouble.

The Court did not reach the Second Amendment issue.

Rather, it found that the Commissioner failed to conduct a thorough review of Caputo’s character and fitness. Most interesting, for my purposes at least, is the discussion of Caputo’s current propensity for violence, and how that should affect the award process.

I further make this determination because the Department seems to have made its decision wearing blinders. The Director ignored Caputo’s unblemished record both before and after the 1999 incident. This would include his honorable service in the Marines, and his almost five years as a New York City Police Officer without any problem, until this complaint. After his leaving the Force, he joined the NYC Sanitation Department, rising to the level of Supervisor of 30–40 men. Is it not arbitrary to completely ignore these parts of one’s life and is it not clear that they speak to character as well?

And most significantly, the Director totally ignored the significance of the 2009 granting of Caputo’s application for a Certificate of Relief from Disabilities, which can only be granted and was granted here at the time his sentence of Probation was completed. At that time, the sentencing judge had the opportunity to review the applicant’s activities and character since the time he took his plea. The Director also ignored the actual words of this Certificate “relieving the holder of all disabilities….”

Here, the Court finds that even though Caputo had a dangerous past, he ha shown that his propensity for violence is significantly less today, and perhaps, the bar on firearm ownership should not be as insurmountable.

In the Constitutionality of Social Cost (I will have a draft up in the next few days), I address the issue of the bar on felons keeping and bearing arms as a function of the actor’s current propensity for violence:

This is not to say that felons of all stripes should be perpetually disarmed, as the very nature and number of felonies has proliferated to criminalize many types of non-violent crimes—crimes that say nothing about the defendant’s propensity for harming others. This burden, is not insurmountable, but must show that the individual no longer poses such a threat. Even the National Rifle Association is in favor of limiting firearm ownership to law-abiding people, and not violent felons. This limiting principle would assuage concerns on both sides of the issue, and provide the Court with a judicially manageable standard to balance liberty and social costs.

This framework provides the courts with a judicially manageable standard and a limiting principle. A dividing line between those without a proven propensity for violence and those whose rights have been rescinded as a result of exercises of violence enables the Courts to know who bears the burden of infringing the right, and what level of judicial scrutiny is appropriate.

If a person shows he is no longer a threat, then the burden shifts to the state.

The Court in this case did not address who bears the burden, but I believe the framework I propose may be palatable to Judges.

Interestingly, counsel first argues that the United States Supreme Court’s recent interpretation of the Second Amendment to the United States Constitution in two cases, District of Columbia, et al. v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. Chicago, 138 S. Ct. 1317 (2009), changes an individual’s possession of a gun from a “privilege” to a “right”, which he believes shifts the burden to the Agency to disprove eligibility, whereas before, the applicant had the burden of proving his eligibility.

I am not prepared at this time to accept this interpretation, but I am prepared to say that the decision here was arbitrary and capricious. I base this conclusion on the facts, concerning Caputo’s past and present along with cases cited by counsel showing that prior felons in New York have been granted handgun licenses by the Department. This refutes respondent’s claim that such a conviction is an absolute bar.

This is similar to the position that Judge Sykes adopted in Skoien, and several other Judges have suggested in dicta. From my article:

[1] U.S. v. Duckett (9th Cir. Dec. 17, 2010)(Ikuta, J., concurring)(“Although I join the majority in full were I not bound by United States v. Vongxay, 594 F.3d 1111 (9th Cir.2010), I would examine whether, notwithstanding the Supreme Court’s dicta in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 2816–17 (2008), the government has a substantial interest in limiting a non-violent felon’s constitutional right to bear arms. See United States v. Williams, 616 F.3d 685, 693 (7th Cir.2010) (“[W]e recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.”); United States v. Skoien, 614 F.3d 638, 645 (7th Cir.2010) (en banc) (Sykes, J., dissenting); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.2009) (Tymkovich, J., concurring). Indeed, other than felon disenfranchisement laws, which are grounded in § 2 of the Fourteenth Amendment, see Richardson v. Ramirez, 418 U.S. 24, 54 (1974), I can think of no other constitutional disability that applies only to a “certain category of persons … [who] may be excluded from ever exercising the right.” Skoien, 614 F.3d at 650 (Sykes, J., dissenting)”).Why Can’t Martha Stewart Own a gun