Thesis on "Letter of Advocacy in Re: Reinstatement"

Thesis 7 pages (2021 words) Sources: 6

[EXCERPT] . . . .

Letter of Advocacy

IN RE: Reinstatement of the Non-Violent Convicted Felon's Right

To Bear Arms Upon the Completion of Serving Sentence

And With Ten Crime-Free Years Following That Sentence

And Any Accompanying Probation or Parole Requirements

Dear Honorable Governor of Anystate:

The purpose for this letter is to enjoin you to consider the nature of justice in reinstating the right to bear arms for the individual who has been convicted of a felony, served their adjudicated sentence of a non-violent felony criminal act and who have subsequently lived ten years continuously without having committed a criminal offense. Toward that end, this letter will contain information from various authoritative sources to support this proposition and specifically that those convicted of a non-violent criminal offense should be reinstated with the right to bear arms upon having served their sentence, adhered to parole rules and regulations and who have lived a 'clean' and honest life for the period of ten years time.

The first issue addressed in this letter of advocacy is the issue of individual rights as set out in the U.S. Constitution which vests the individual with the right to bear arms. The second portion of this letter of advocacy will address the expert and professional opinions among the judiciary and legal counsel which are written in journal articles or other professional and academic literature that is peer-reviewed in nature. Third this work will address the limitations that exist in the individual's own self-protection which inherently exists because of the restrictions upon the Second Amendment right to bear arms.

I. RIGHT to BEAR ARMS - SECOND AMENDMENT PROVISION

In June (2002) it is reported that history had been made by two briefs of the U.S. Supreme Court. This is because it had been asserted by U.S. Solicitor General, Theodore B. Olson that the Second Amendment "protects an individual right." (Gottlieb-Tartaro Report, 2002) the view of the Justice Department which was one that was of a long-standing nature was that the Second Amendment protects only the states' "collective right...to organize militias." (Gottlieb-Tartaro Report, 2002)

In fact, the Solicitar General Olson stated in his advisement to the Supreme Court that the Second Amendment effectively "protects the rights of individuals to possess their private firearms, regardless whether they are in a militia." (Gottlieb-Tartaro Report, 2002) the case law cited by Olson to the Supreme Court was that of U.S. v. Emerson. This case involved a constitutional challenge in the form of a federal law that places a prohibition on the ownership of guns by citizens who are under restraining orders in a civil court and specifically in a divorce case and this is true whether they have ever been convicted of a crime or whether they have never been convicted of a crime.

This law however, was held by a Texas district judge to violate the Second Amendment rights of Dr. Timothy Joe Emerson. Emerson had been acquitted of all charges in the state court. This case had been appealed by the Clinton administration Justice Department to New Orleans Fifth Circuit in New Orleans which reversed and remanded the case of Emerson back to the Texas court in 2001 and simultaneously affirming the opinion of District Judge Sam Cummings who held that the Second Amendment is indeed an individual right of the American citizen and a right that is protected by the U.S. Constitution.

II. EXPERT and PROFESSIONAL OPINIONS AMONG JUDICIARY

While proponents of this view state many impassioned examples of why this should not be so, it was held by John Marshalll that the "right belongs to the citizens, not to the states." (Gottlieb-Tartaro Report, 2002) as well Thomas Cooley, Michigan Supreme Court Justice known as the "leading constitutional law commentator of the late 1800s stated that the "right belongs to the people, like it says in the amendment." (Gottlieb-Tartaro Report, 2002)

III. LIMITATIONS of SELF-PROTECTION WITH the RIGHT to BEAR ARMS

The Gottlieb-Tartaro Report (2002) states that calling 911 during an emergency is generally a good thing to do and it is true that "the emergency hotline saves all kinds of people from fires, heart attacks and auto accidents. But it's not so good when it comes to saving people from killers." Indeed this is especially true in the city of Chicago in which owning a handgun is illegal unless the gun was registered prior to the ban on ownership. This handgun ban in reality means that "women who are being stalked cannot legally arm themselves against those who would harm them. But they can call 911, which is what Ronyale White did recently when she reported that her husband, Louis Drexel...was outside her home violating an order of protection." (Gottlieb-Tartaro Report, 2002)

White called 911 three times over the seventeen minutes recorded in this incident, the Chicago police did not go check on her the first time and neither did they go the second time, and when the Chicago police finally went to check on White after the third call it was too late because Mrs. White was dead. Mrs. White could not legally carry a gun however, her violent and murdering husband did have a gun and because of this and those supporting the handgun control law in the city of Chicago, Mrs. White is dead because she was not allowed by law to own a handgun and to protect her own life incidentally, something that 911 and the Chicago police were found to be a miserable failure in accomplishing.

IV. REINSTATEMENT of the RIGHT to BEAR ARMS

The case of Logan v. United States of America; U.S. Supreme Court of the United States (2006) in a Writ of Certiorari to the U.S. Court of Appeals for the Seventh Circuit states that it was held at one time that reinstatement of ones' right to bear arms must be accomplished administratively by judiciary however, it has been held by others that reinstatement of these rights are a process of law. (Halbrook, 2006) it is stated in Halbrook (2006) Amicus Curiae Brief that "While it is now settled that either method suffices, the issues before this Court was already seething in the above cases." (Halbrook, 2006) the question under scrutiny in this particular case is the question of:

Whether the "civil rights restored" provision of 18 U.S.C. 921(a)(20) applies to a conviction for which a defendant was not deprived of his civil rights thereby precluding such a conviction as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1)?" (Halbrook, 2006)

V. DISSEMINATION of the 'MEANING' or 'SPIRIT' of the LAW

Counsel of Record, Stephen P. Halbrook states in the Brief for Amicus Curiae National Rifle Association of American, Inc. In support of Petitioner that a conviction may result in one or more of three civil rights being taken away:

1) the right to vote;

2) the right to run for office; and 3) the right to serve on a jury. (Halbrook, 2006)

Alternatively, the conviction may not result in any of these three civil rights being taken away. Additionally, the offender whose rights have been restored under 18 U.S.C. 921(a)(20) is one who currently has all three civil rights, regardless of how many (if any) were taken away and returned." (Halbrook, 2006)

According to the brief written by Halbrook the individual who is convicted of a more serious crime and who has had all three civil rights removed and has them reinstated would not be subject "to mandatory sentencing or the prohibition on firearm possession." (Halbrook, 2006) Indeed the same individual when convicted of a crime that is considered a "lesser crime" and who also "does not lose any civil rights should be considered as having civil rights restored and should not be subject to mandatory sentencing or the prohibition on firearm possession." (Halbrook, 2006)

The findings concerning reinstatement of civil rights including the right to bear arms as set out in the case of Logan v. United States of America; U.S. Supreme Court of the United States (2006) provide clear indication that the understanding of Congress in regards to law-abiding citizen's right to keep and bear arms is that citizens are vested through the Second Amendment with those specific rights and the prohibitions contained in the Act as well as its exceptions should be "interpreted with this purpose in mind.

Halbrook specifically states: "The civil-rights restoration provision reflects that an ex-offender currently has the rights to vote, run for office, and serve on a jury, thus is considered to be a law-abiding citizen, and should not be subject to a lifetime prohibition on firearms ownership." (2006) Finally, Halbrook (2006) concludes by stating: "It is irrational to allow persons with more serious criminal records to avoid mandatory minimum incarcerations and to possess firearms, but to subject persons with less serious records to the mandatory minimums and to the prohibition on firearm possession. The provision should be construed to avoid this difficult constitutional question under the equal protection component of the due process clause of the Fifth Amendment." (2006)

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