From: Kent Crispin <kent@songbird.com>
Date: Wed, 2 Jul 1997 02:52:00 +0800
To: cypherpunks@Algebra.COM
Subject: Re: NRA and National Online Records Check bullshit
In-Reply-To: <Pine.3.89.9706301850.A28965-0100000@netcom2>
Message-ID: <19970701113321.12042@bywater.songbird.com>
MIME-Version: 1.0
Content-Type: text/plain



On Tue, Jul 01, 1997 at 09:47:45AM -0700, Tim May wrote:
> At 7:46 AM -0700 7/1/97, Paul Bradley wrote:
[...]
> 
> >I can see the point of view which accepts serving of sentence as being
> >the end of punishment, and I do not accept a ban on firearms as being
> >implicit in the commision of a felony, but if a court explicitly states
> >that part of the punishment should be a X year or lifetime ban I can
> >accept that.
> 
> Does this mean that you would "accept" a wording which took away a released
> convict's ability to speak freely, or to practice the religion of his
> choice?
>
> ("Upon completion of your 6-month sentence for public blasphemy, you must
> renounce Baalism and accept the religion so ordered by the court.")
> 
> Why is this any different from taking away Second Amendment rights?

At one level, it is not.  Punishment intrinsically involves
restriction on rights.  Your right to free speech *is* restricted
while you are in jail.  Your right to practice your religion can be
infringed -- you may not be able to have a prayer blanket, for
example.  When you are convicted of a felony you step into a different
category as far as protection of rights are concerned.

On another level, they are *different* rights.  So, in practice, the 
rights to free speech and free religion are given greater weight.

> There is sometimes a loophole for taking away some particular right, or
> interfering with it in a special way, a la the language of "compelling
> needs." This is how the courts look at the putative conflict of rights, as
> in things like "the state has a compelling need to protect minors from
> these materials." Then there's the related language of "overbroad."
> 
> But how does a lifetime, blanket ban on possession of firearms--i.e., a
> complete denial of Second Amendment rights--for any of tens of thousands of
> claimed "felonies" fit with this "compelling need" model? What's the
> compelling need for the state to deny Second Amendment rights for life to
> someone convicted of fraud or money laundering?

It's really more of an issue of practice, rather than principle.  
There is no disputing that once you are caught up in the criminal 
justice system your rights are constrained.  The constitution 
guarantees the accused certain rights, to be sure, and the convicted 
rather less.  But it is clear that the blanket provisions of the Bill 
of Rights simply don't apply to criminals.

However, the issue is very complex.  "The system" has a number of
discretionary points -- variable sentencing regiems, time off for good
behaviour, probation, parole -- all involve different levels of
constraints on rights, all constitutional. 

In principle, once you accept that the state has the mandate to 
punish criminals, you accept that criminals lose rights.  Period.

As an anarchist you may say that the state has no such mandate.  But 
then you have the messy problem of what to do with common criminals, 
and you end up with a state that you refuse to call a state.

-- 
Kent Crispin				"No reason to get excited",
kent@songbird.com			the thief he kindly spoke...
PGP fingerprint:   B1 8B 72 ED 55 21 5E 44  61 F4 58 0F 72 10 65 55
http://songbird.com/kent/pgp_key.html