Gun Rights for Non-Violent Ex-Felons: The Hypocrisy and Legal Confusion

Gun and the right to bear arms is a sensitive subject in New Mexico and throughout the United States. With spikes in crime in the major cities and within New Mexico the legislature and the governor embarked on a session that attempted to create more regulations around gun ownership.

Locally in Otero County, New Mexico, Representative John Block claims to be 100% pro-gun and brags he is the most conservative legislator in New Mexico. Yet when pressed on guns and the rights of non-violent ex-felons to own guns, he becomes silent and is not as ambitious nor outspoken in his support. Why?

That silence is typical of those pro-gun advocates and demonstrates the hypocrisy of the movement. The argument intensifies around crime and illegal immigration. The pro-gun lobby argues they need guns in order to protect their property from "violent criminals" and "illegal immigrants." Yet, they don't recognize that same "need" for non-violent ex-felons that may live right next door.

Further complicating the issue is state law verses federal law. In New Mexico an individual convicted of a state crime has the right to have gunbs again 10 years after completion of their probation. However federal law prevents that ownership thus a conflict in the law and confusion for the non-violent ex-felon.

The National Rifle Association of which is hosting an upcoming fundraiser in Alamogordo is has a mixed history in regard to guns and ex-felons. Generally, it is quiet on the issue via a public face but historically it did operate relief-from-disability program at one point that helped former felons regain their gun rights through petitioning the federal government.

The Courts however are beginning to lean into the concept of guns for non-violent ex-felons and are leaning toward a pure interpretation of the 2nd Amendment.

As reported by Reuters and NBC News last year, The U.S. government cannot ban people convicted of non-violent crimes from possessing guns, a federal appeals court ruled on Tuesday.

The 11-4 ruling from the Philadelphia-based 3rd U.S. Circuit Court of Appeals is the latest defeat for gun control laws in the wake of a U.S. Supreme Court ruling last year expanding gun rights nationwide.

The decision stems from a 2020 lawsuit by a Pennsylvania man, Bryan Range, who was barred under federal law from possessing a gun after pleading guilty to welfare fraud. He claimed the prohibition violated his right to bear arms under the Second Amendment of the U.S. Constitution.

“We are very pleased that the 3rd Circuit has vindicated the rights of our client by faithfully applying the Supreme Court’s decision,” Range’s lawyer, Peter Patterson, said in an email.

The Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces federal gun laws, declined to comment.

Range pleaded guilty in 1995 to committing a non-violent white-collar crime of welfare fraud in Pennsylvania in order to obtain $2,458 of food stamps, a misdemeanor punishable by up to five years’ imprisonment. He was sentenced to three years of probation.

However, the U.S. Supreme Court ruled that the Second Amendment protects individuals’ right to carry guns in public for self-defence, and that any restrictions on that right must be consistent with the nation’s historical tradition of gun regulation.

Circuit Judge Thomas Hardiman wrote for the majority on Tuesday that the government had failed to point to any laws from the United States’ founding establishing a tradition of disarming non-violent criminals.

The Supreme Court may soon weigh in. On the record several justices appear to lean into providing non-violent offenders with guns again.

It was only a year ago that the Supreme Court issued a landmark Second Amendment opinion that expanded gun rights nationwide and established that firearms rules must be consistent with the nation’s “historical tradition.”

Majority opinion author Justice Clarence Thomas infuriated supporters of gun control and elated advocates of gun rights but also generated confusion among lower court judges who found themselves reconsidering thousands of firearms rules.

In November the justices heard oral arguments in a case asking it to consider the scope of its 2022 decision in New York State Rifle & Pistol Association v. Bruen, this time in the context of domestic violence. The outcome when violence is a factor is questionable. However non-violent offenders may get a reprieve.

The 6-3 Bruen decision broke along familiar conservative-liberal ideological lines. Justice Amy Coney Barrett, while serving in a lower court made the following statement in a ruling,

“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote in 2019.

But she emphasized that the power extends only to people who are “dangerous.”

She said that the fact that the law included all felons “both violent and nonviolent” made it unconstitutional as applied to the plaintiff in the case – suggesting she is interested in developing some kind of standard based on “dangerousness.”

Per CNN, Lower courts have cited Bruen in cases blocking laws restricting the use of concealed firearms, prohibiting guns in houses of worship and banning assault weapons.

Last month in California, for instance, a federal judge struck down an assault weapon ban the state argued was needed to prevent mass shooters from acquiring those weapons. Many of the banned guns, the judge said, are also commonly used by “law-abiding” citizens for self-defense.

“California’s answer to the criminal misuse of a few is to disarm its many good residents. That knee-jerk reaction is constitutionally untenable, just as it was 250 years ago,” Judge Roger Benitez wrote.

While the silence related to the issue of non-violent offenders and gun rights advocates fighting in the courts for access. The time is now to put pressure on the courts and the legislators to affirm these 2nd Amendment rights for everyone. The fight for non-violent ex-felon gun rights in the courts is emblematic of the broader national debate over firearm legislation and the balance between public safety and individual liberties as related to the 2nd Amendment. As legal practitioners, policymakers, and activists continue to navigate this complex issue, the evolving legal landscape will likely bring new challenges and opportunities for those seeking to restore their rights.

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