Sure there is--the Fifth Amendment allows for the deprivation of liberty if due process is given. Liberty is more than just your freedom to move about; it includes all liberties. There are lots of things that can--and often do--get restricted as part of a criminal punishment even if you never serve time.
I agree, but I disagree with your post No. 18, in which you say there's no grant of authority. I maintain that the language of the Fifth Amendment does constitute a grant of authority--if an implicit one--when done according to due process of law.
If you are not in the custody of government, you are a free man with all your rights. Being in prison doesn't restrict any other right such as the right to have council, trial by jury, to be free from unusual and cruel punishment, etc.. If a person has been adjudicated a danger to society, that person should be executed, institutionalized, or kept in prison until such time said person is safe to be released in society.
Woody
Woody
There is no grant of power beyond due process. Passing a law that allows a deprivation of rights beyond release from prison or an institution is unconstitutional. Once released, you are no longer in the custody of government. Government no longer protects society from you. Government no longer protects you.
We all know the fallacy of prohibiting an ex-con to keep and bear arms. If government wants to keep you disarmed, it must keep you in custody. It's the only scenario that works and the only constitutional way of doing it.
Woody
Are you arguing, then, that probation and/or parole are unconstitutional? It seems to me that if the government can imprison you--depriving you of (nearly) all of your liberties, then it can also take less-restrictive means.
Not trying to be a smartarse here--I mean the question in all sincerity.
Not trying to be a smartarse here--I mean the question in all sincerity.
I tend to agree with Dave here, since this has been my position for a long time. There are no absolute rights. This does not mean that the RKBA is not an individual right; much like life liberty and property. These are rights as well. But you can lose them if you are convicted of a crime. So, why, given this, can you not also lose your RKBA as well?
Personally, this what I'd do. If the person is a first-time, nonviolent offender, restore all of their rights as soon as their period of supervision is up, For a second conviction, restore them five years after the period is up.
For a third conviction or for conviction of a violent crime, no restoration unless the governor grants it.
Granted, this would not be likely to satisfy you, because you seem to see yourself as a constitutional purist, (and there is something to be said for that) but I don't see this as a constitutional issue; rather I see it as one of pragmatism.
Personally, this what I'd do. If the person is a first-time, nonviolent offender, restore all of their rights as soon as their period of supervision is up, For a second conviction, restore them five years after the period is up.
For a third conviction or for conviction of a violent crime, no restoration unless the governor grants it.
Granted, this would not be likely to satisfy you, because you seem to see yourself as a constitutional purist, (and there is something to be said for that) but I don't see this as a constitutional issue; rather I see it as one of pragmatism.
Probation and parole are not bad things nor are they unconstitutional. However, if you do pardon or parole a violent offender, you take the risk of a repeat of the violent offenders actions. Restricting someone's right to keep and bear arms upon a pardon or parole is unconstitutional. That alone would be all the incentive a government needs to be certain of their decision to pardon or parole a violent offender.
It is a constitutional issue in black and white because the Constitution does protect a person's Right to Keep and Bear Arms. If we are to be pragmatic about this issue, we must consider the consequences of relying upon unconstitutional law to keep arms out of the hands of violent felons. The law does not work. Keeping violent offenders locked up does. Keeping violent offenders locked up negates the need for any law requiring background checks for anyone wishing to purchase arms. That is two big plusses for society.
Woody
1) Pardon is different from parole. Pardon erases the conviction (for purposes of law); it is as if it never happened. Parole is the government saying "we gave you twenty years, we can keep you twenty years; we're going to let you out even though you've only served ten, subject to the following conditions." If the parolee doesn't like the less-restrictive conditions, he's free to decline parole and sit in his cell.
2) As for parole or probation, they're not open-ended releases; they're an allowance to walk free at a time when the government has the authority to imprison you. They come with rules, some of which are restrictions on liberty. Even checking in with a parole officer is a restriction; truly free men don't have to check in with their governments. Is that unconstitutional?
I consider myself to be a constitutional purist as well, but I consider the document as a whole. The Fifth Amendment was passed contemporaneously with the Second, so the two have to be considered in light of each other. The Fifth clearly contemplates the government restricting "life, liberty, [and] property" subject to due process of law. I don't like the lifetime prohibition for felons, but I think it is probably constitutional, simply because the language of the Fifth Amendment allows for it, and doesn't provide restrictions on that grant of power (though the Eighth Amendment might, if it's found to be excessive). I definitely think conditions of parole, or probation in lieu of imprisonment (for a duration up to that punishable by imprisonment), are constitutional; I don't see any merit in the idea that the government can imprison somebody, but cannot take away a lesser subset of his rights than prison would (again, up to the duration for which imprisonment would be allowed; no lifetime prohibition for stealing a candy bar).
I don't think either of us is likely to swing the other to his view, but that's not a bad thing. Discussions like this keep everyone on his toes, and keep liberty and limitations on government forward in everyone's mind, as is proper in a free society.
That is your opinion and you are entitled to it. But you have yet to convince me that laws prohibiting possession by those convicted of felonies are per se, unconstitutional. It is my opinion that they are not.
Like Dave, I base my argument on the fact that the fifth amendment does allow for certain rights to be taken away from a person provided he or she was convicted of a serious crime and due process was followed.
The Second Amendment does protect an individual right; on that we agree. But my contention is that it can be lost upon conviction of a serious crime.
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