The Health Care Cases And The Right To Keep and Bear Arms

July 7th, 2012

I have written at some length about why the Second Amendment is treated differently than other constitutional rights. Specifically, I have noted that the right to bear arms and the right to vote (which is not really a right, but close enough) are routinely denied to former felons. No other right is so limited.

As I wrote in the The Constitutionality of Social Cost:

Further, Justice Breyer joined Justice Kennedy’s opinion in Romer v. Evans,212 where the Supreme Court reaffirmed Davis v. Beason, an 1890 opinion by Justice Field that held that convicted felons may be denied the right to vote. 213

212 .517 U.S. 620, 634 (1996) (“To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable.”).

213. 133 U.S. 333, 346–47 (1890).

Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, reaffirmed this, and stated rather clearly that the right to keep and bear arms and the right to vote can be denied to felons.

Third, although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.

The Court stated in Heller that Felons could be disarmed. But this is broader. This refers to the “attendant consequences of being branded a criminal.” Criminal? I suppose this encompasses felons, misdemeanors, people who don’t pay taxes, jaywalkers, etc. This has 5 votes. I wonder if the next Second Amendment case will cite this.

And calling the right to keep and bear arms, as well as the right to vote, a civil right, seems wrong. This is a clearly enumerated right in the Second Amendment. This isn’t some sort of other right protected under 1983. This is right in the Constitution. Roberts’s vote in Heller and McDonald support this.

Further, this seems to give governments the license to deny a person the right to bear arms ” as an attendant consequence of being branded a criminal” with no limitations.” In such a case, the government “can bring its full weight to bear.” So no limitations on how a person who was once a criminal can be further deprived of civil rights.

I’m not sure what troubles me more about this. That Roberts wrote it? Or that the liberals joined it?

And now, we know that the right to vote can be denied forever.

It’s a shame that such an important issue was tossed aside perfunctorily in this case.