It goes to a pretty well thought out article (give it a read first) from the Sun Sentinel, Broward County’s preferred bird dropping catcher. As usual, Brady and followers make it all about guns but the central question is simple: Are felons allowed to claim Immunity From Prosecution for defending themselves? If the answer is yes, why not with a firearm?
IANAL so this is my interpretation: yes. Even though it is not legal for a felon to own or possess a firearm, this should not preclude him from using the best available means to save his life. I would also interpret that he could be prosecuted later for possession of a firearm, but not for using it to defend himself.
Remember, we are talking Self-Defense which means a case where the felon (and anybody) covers the four principles: Innocence, Immediacy, Reasonableness and Proportionality (those in Non-SYG states must add Avoidance. Check this great article by Andrew Branca for ALL states.) For all intents and purposes, a felon would be in a situation same as any other citizen who would in good faith, demand a hearing of immunity for having to use deadly force.
So, do we impose an extra and very high level of punishment to a Felon possibly violating the 8th Amendment (I know, I am reaching) telling him that he could not defend himself or we face the fact that even a Felon has the right in this country to defend himself.
This case is gonna be fun to follow.
In Illinois, they passed a law that an individual who legally defended themselves using an unregistered firearm would not be prosecuted for possessing the firearm.
Can you guess which sitting president voted against that bill? During that individual’s presidential run, the BC refused to respond to any questions regarding it.
Back in 2001 Virginia decided that even felons ghave a Common Law right to self defense, including the use of firearms. There are some restrictions, but generally speaking their right to self defense cannot be taken away even if their right to keep and bear arms was taken away. Read the decision http://www.courts.state.va.us/opinions/opncavwp/1982002.pdf
It does not set precedence in FL but can be cited as instructing and influencing the decision.
stay safe.
In most states even someone engaged in unlawful activity can justify the use of force in self-defense, so long as they were not the aggressor in the fight–for example, a drug dealer who is the victim of an armed robbery can lawfully defend himself with force–even deadly force, if circumstances warrant it–against that robbery (although he is, of course, liable for any drug charges).
There ARE more restrictive states. Tennessee, for example, denies a person the ability to justify the use of force in self-defense if they are engaged in ANY unlawful activity, whether as an aggressor or in any other manner of unlawful activity. In that case the drug dealer would be out of luck.
Of course, the mere fact that someone might have IN THE PAST committed some felony offense has NOTHING to do with whether they can lawfully defend themselves from an attack occurring TODAY–assuming, of course, that they meet all the required elements of the law of self-defense, as Miguel laid out.
–Andrew, @LawSelfDefense
Betcha most of those who shriek in horror over this support letting felons vote.
You got me confused, Rob. Is there some law that prevents a citizen from voting because they’ve been to prison? If there is, it should be nullified since the punishment has been met and all rights should be restored, just as the 2A rights.
The Brady Campaign doesn’t want to go down the path of restoring any rights to felons; because eventually the question will be asked “Why not Second Amendment Rights?”
And they desperately want to avoid people thinking about their cousin, their uncle, their brother/son/father who went to prison 20 years ago and has been law abiding ever since.
The Brady Campaign want to avoid people thinking about what minor laws the people have broken. How anyone could be a victim of a crime and should they have the right to fight back.
Bob S.
I’m against the whole “convicted felon” thing. If you have served your time, you should have all the same rights I have, including the right to bear arms. The Brady panty wetters are looking for monsters where none exist. If the person can’t be trusted with a gun, they can’t be trusted to walk free. We all know that there are some that should be locked away forever. I have no problem with that. I do have a problem with those that made a mistake and paid the price being denied ALL of their rights.
My sentiment is exactly as Robert’s: Once you’ve “paid the price” for your past crime, you are no longer a “felon” and especially not a “convicted felon”. You are once again a plain old person just like those who’re perfect (even if only in their eyes) and deserve every right those “perfect” people enjoy.
So to prosecute someone for “illegally defending themselves” is a bowl or crap, just as is their “illegally owning a firearm”. The Second Amendment does not discriminate against who can own a weapon, no more than it protects hunters.
The problem is those people who think they’re better than everyone else and have right to make rules to fit their ideas rather than follow established guidelines, in this case, the Constitution. Those kind of people are a bigger problem in this country than the politicians.
JSW says:
July 15, 2014 at 12:56 pm
in MOST states, a felony conviction permanently bars you from voting, just as the federal gun laws permanently bar convicted felons (and many misdemeanants) from possessing firearms.
Both have been challenged, and both have been upheld. Completing your sentance doesn’t mean you have “paid the price” for your crime unless the law says that the ONLY price that counts is the time spent in physical custody. The idea behind these bans are that, by the very nature of their conduct, these convicts have proven they are unfit to carry out the duties and responsibilities of normal adult citizens, so a part of their civil sovereignity is indefinately removed.
Most pardons are not actually for people who make a good claim they have been wrongly convicted — they are for people who have asserted that YEARS of law-abiding behavior while allowed to roam free in society, without even a parole officer to check in with anymore (in most cases, a pardon request will go nowhere if you are still on parole – the whole POINT of parole is that it is a “test period”, and you are STILL serving your sentance. . . just without physical custody), have established beyond a reasonable doubt that they have TRULY reformed.
Personally, I feel we should keep convicts serving sentences (whether in physical custody or released on parole) as long as we reasonably determined it would take for them to be truly reformed, and then drop the civil restrictions associated with being a convicted felon. If they’re too dangerous to trust, we keep them on a short leash — either in a cage, or “partially free” (parole or probation) with tight monitoring (i.e., POs). Anyone not under an active sentence must not be a significantly increased risk, and therefor should be restored to full participation.
If society thinks we are releasing people too soon for that (the justification for these restrictions AFTER fully completing their sentences), society should raise the sentenceing times and tighten both sentencing guidelines AND the ability to address judges who ignore them.
Of course, I also feel that ALL convicts should serve the ENTIRE sentence period (unless pardoned or commuted), with days on probation or parole only counting for a fraction of days in physical custody.
What fraction is appropriate is open for debate – I’m inclined to “half”; so if you do 10 years of a 20 year sentence and get paroled, you’ll be on parole for 20 more years (10 years remaining x 2). Definately allow convicts to refuse parole, if they’d rather gut it out in prison at full credit to get totally free faster.
I think that every living thing has the right of self defense. Now, if a person has a “special relationship” with the police/government and the government takes full responsibility to protect them, then having a weapon is not necessary and not necessarily protected. For example, if you have a Secret Service protection detail assigned then they would be responsible for your safety and you would not have a protected right to a gun. If you are in prison, you do not have a protected right to a gun.
Since police/government has no duty or responsibility to protect any individual with out a special relationship, it should be easy to determine who can not be denied 2A protection.