Tuesday, February 22, 2011

Out on the streets.

I wonder if the guy will actually do any time.

I suppose it's not ATF's fault that this guy can't follow the rules. Ultimately the police/ATF are the ones that investigate and arrest people, they don't ultimately set the punishment. So I guess this is really a case where the courts fall down.

But it does raise an interesting issue. In Heller, Scalia left untouched the notion that we can restrict 2nd Amendment rights of certain persons, like the mentally ill and felons. Many crimes are created during each state and Federal legislative session, a good number of those are felonies. There was a time when the class of crimes called felonies was rather small and included things like murder, rape, mayhem and so forth.

So, are there just too many felonies that should really be treated as lesser offenses? Are the courts falling down in not enacting the harsher sentences that Congress seemed to want, i.e. the felon-in-possession statute? I come out on the side of us tending to over-criminalize illegal, but not felonious, behavior. The only logical reason for this is to "Send a message" to other criminals. The problem is that the message is "Don't worry, you'll likely just get probation, and probably 2 or 3 bites at the apple first before we really make it sting." Not exactly the best way to design or run a justice system.

The next step is to look at felonies which are malum in se (inherent wrongs, like murder) versus malum prohibitum (wrongs we prohibit, but which are not necessarily wrong in their nature, like prostitution and gambling). You can further divide that into things which are malum in se and violent or destructive and those which are malum in se and not violent or destructive. By "not violent or destructive", I do not mean to engage in the "victimless crime" argument that some people propose. Rather, I mean those acts which do not involve violent behavior towards persons or property, i.e. larceny or grand theft auto, absent attendant violence.

If you stole a car when you were 19, took the felony rap, did your due to the State, cleaned up, went right, got your education, a job, have a family and maintain a good career, are you a massive risk (or any risk) to society, at age 40, if you want to purchase a handgun to keep at home? Are you any more or less a risk if you want to buy a shotgun so you can go bird hunting? In my opinion, no. Now, if between 19 and 40 you had a bunch more run-ins with the law, more convictions (even lesser ones) and a general pattern of disrespect for the laws of society, then yes, I'd say you are a danger. But for a 21-year old transgression, no, you're not. If you were, your behavior between age 19 and age 40 would have born that out.

On the flip side, lets say at 18 you burglarize a house some dark night, rape a lone female occupant, try (but fail) to kill her, flee, and get caught. Do I want you to ever have access to a firearm? No. Disrespect for human life is vastly different than disrespect for someone else's shiny car in my book.

Unfortunately, society is not willing or able to have this discussion and engage in this introspection. I suspect we'd rather go all "law n' order!" with more major crimes created day in and day out than actually think critically about what we are doing, why we are doing it, and where we want to arrive (compared to where are actually are) with the whole process.

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