        Caron v. United States, 524 U.S. 308 (1998)

                Commentary by Jon Roland

This case demonstrates how politics or public policy, without a 
grounding in constitutional fundamentals, can yield a morass of 
contradictions and unjust outcomes. It arises out of the 1986 Firearms 
Owners Protection Act, as amended, which forbids a person convicted of a 
serious offense to possess any firearm, 18 U.S.C. 922(g)(1), and 
requires that a three-time violent felon who violates 922(g) receive an 
enhanced sentence, 924(e). However, a previous conviction is not a 
predicate for the substantive offense or the enhanced sentence if the 
offenders civil rights have been restored, "unless such ... restoration 
... expressly provides that the person may not ... possess ... 
firearms." 921(a)(20) (emphasis added). The petitioner in this case was 
convicted under the Act for possession of some rifles and shotguns, even 
though on one of his original convictions he had had his civil rights 
restored by operation of a Massachusetts law that permitted him to 
possess rifles but restricted his right to carry handguns. The decision 
of the Court was to uphold the conviction and longer sentence, on the 
argument that, although he had a right under Massachusetts law to 
possess the rifles and shotguns, the disability for carrying handguns 
made the federal charge applicable under the above "unless" clause, even 
though he didn't have any, so that if there were any limitations on 
firearms ownership remaining after a restoration of rights, the federal 
law prohibited such person from possessing any firearms. That is, even 
if the state specifically said the person could have certain firearms, 
the federal law would not recognize that. Justices Thomas, Scalia, and 
Suter dissented on this argument, but neglected to examine the more 
fundamental issues that invalidate the entire Act.

The case arose from enforcement of The Brady Handgun Violence Prevention 
Act, 18 U.S.C.  921- 22 (1994), a political compromise in which the 
NRA accepted and supported its "instant check" system by the FBI on 
prospective purchases of firearms, forbidding purchases to certain 
categories of persons, as an alternative to new gun laws. The FBI has 
claimed that this system has prevented sales of firearms to hundreds of 
thousands of "felons" and other "dangerous persons", but what seems like 
a good public safety outcome is often unjust, besides being 
unconstitutional using the criteria and methods on which the sales are 
rejected. Where political compromises are involved, constitutional 
principles tend to be compromised along with the policy preferences, 
making moot the presumption of the constitutionality of legislation.

Before we examine the constitutional fundamentals, however, let us 
examine some the difficulties of defining a class of "felons" or 
"serious offenders" or "dangerous persons" whose rights to keep and bear 
arms are to be legislatively disabled:

     "Felons" are not always violent people who would misuse a
     firearm. Some laws are drafted so broadly that penalties that meet
     the simplistic definitions used in the 1986 Firearms Owners
     Protection Act are imposed on widely different behaviors. Despite
     the fact that the Act specifies "violent" felonies, the enforcement of
     the Act has considered all felonies "violent" just because they are
     "felonies".

          Lewd behavior is a "felony" in some states, but can include
          anything from relieving oneself in the wrong place, to social
          protest, to topless sunbathing, to flashing.

          Pornography is a felony by some local standards, but what
          is pornographic changes. The term has been applied to
          books now considered classics, to classical art such as
          naked Greek statues, or to parents who innocently took
          pictures of their children as naked babies.

          In many states gambling is a felony, depending on the game
          played and the amount bet.

          Impregnating a woman, even if one later marries her, or
          even nonmarital cohabitation, can be a felony in some
          states.

          Procuring an abortion was once a felony in most states. If
          one did it when it was illegal and was convicted, one would
          be a "felon" for the purposes of the federal Act.

          Income tax evasion, or filling out government forms
          incorrectly, can be a felony. So can donating too much
          money to a political campaign, defending oneself from
          attack by a dangerous animal that happens to be a member
          of an endangered species, filling in a part of one's backyard
          that some bureaucrat decides is a "wetland", and some
          types of illegal dumping. Many of these laws do not require
          criminal intent.

          Many states have similar names for crimes, some of which
          are felonies and some are not. Larceny "over" a certain
          value may be a "felony", and "under" that value a
          "misdemeanor", but the value varies from state to state, and
          even within a state, the laws and values may change.

          Penalties for the same offenses have often increased from
          one year to the next. Conviction of drunk driving in
          Massachusetts in 1993 would not have disqualified one
          from having a firearm, but would have done so beginning in
          1994.

     Although the Brady Act requires the FBI to destroy the records of
     checks, that provision is being ignored, and the "instant check"
     system establishes not just a national gun registration system but a
     national dossier and tracking system of all citizens. Previously
     forbidden from maintaining dossiers on individuals unless they
     were the subjects of a criminal investigation, the federal
     government is now compiling massive amounts of information on
     everyone. Not all of that information is correct, yet people are
     being prosecuted on the basis of that incorrect information.

          Each state has different laws and standards. There is no
          uniform labeling of crimes or characterization of offenses as
          misdemeanors or felonies. In many states, the older criminal
          records are not in good order.

          Until fairly recently, all records were kept by hand locally.
          Different courts kept their records in different ways. There
          were differences in the way judges handled cases.

          Many states have methods which allow the judge to impose
          court supervision without giving the accused a criminal
          record. Terms such as "pre-trial diversion," "pre-trial
          probation," "continuance without a finding," "placing on file,"
          "conditional dismissal," and "suspended finding," describe
          dispositions which do not result in giving the accused a
          criminal record. Because judges believed nothing more than
          a fine would result from such dispositions, they were quick
          to impose them without much thought to the guilt or
          innocence of the accused.

          In some areas, records of closed cases have been
          destroyed leaving only cryptic entries describing the charges
          but not the disposition of the case. When the NCIC check
          is conducted, it frequently turns up these partial records.
          The "instant check" FBI staff assume the worst, even
          though the records were ambiguous.

          Although not authorized by law to do so, the "instant check"
          also looks at the NCIC records of arrests. If no follow up
          entry was made in that data base indicating what happened
          after the arrest, the government tends to treat the reported
          arrest as if it were a conviction. The citizen is then forced to
          prove he was not convicted.

          There is no time limit on convictions. A check could turn up
          a record 60 years old. Tracking down older public records
          to establish nonconviction or to correct erroneous
          information can be very difficult.

          A criminal conviction remains forever unless one is
          pardoned, has the record expunged, or one lives in a state
          that automatically expunges a record on the passage of
          time. Most states do not automatically expunge records,
          and some that are supposed to do so, don't.

          Some states seal records after a period of time. The sealing
          of a record does not remove the conviction, it simply hides
          it from the general public, and perhaps from the person
          convicted. If one knows or suspects he may have a sealed
          record, he should consult with his attorney before
          answering any governmental questionnaire that asks about
          convictions.

     Court interpretations of the Firearms Owners Protection Act have
     resulted in serious problems.

          For a time, the federal government refused to recognize
          state pardons of people with felony convictions and refused
          to recognize the state classification of a crime as a
          misdemeanor if the potential penalty was greater than two
          years. This led to people who committed offenses which
          were misdemeanors under state law being prosecuted
          under federal law as though the state offenses had been
          felonies.

          People who had received pardons or who had their right to
          own firearms restored under state law acquired firearms in
          good faith, believing they were in compliance with the law,
          only to be prosecuted by the federal government as felons
          in possession of firearms. To avoid this the Firearms
          Owners Protection Act was amended to provide that, "Any
          conviction which has been expunged, or set aside or for
          which a person has been pardoned or has had civil rights
          restored shall not be considered a conviction under this
          chapter, unless such pardon, expungement, or restoration of
          civil rights expressly provides that the person may not ship,
          transport, possess, or receive firearms."

          But this provision has been interpreted by a number of
          federal district and circuit courts in different and conflicting
          ways.

               One argument was that the rights were restored or
               limited under federal law to the same extent they
               were restored or limited under state law. This was
               the argument favored by the dissenting opinion in the
               Caron case.

               The other argument was that a restoration of rights
               had to be full. If any limitation was placed on
               firearms ownership, the "unless" section applied. This
               was the argument that prevailed in the Caron case,
               the basis for which was a Massachusetts law that
               restored a person's right to own rifles, shotguns, and
               handguns five years after a conviction for a felony,
               but not his right to carry handguns outside his home.[1]

     The other categories, not issues in Caron, such as persons with a
     "history" of "mental disorder" or "alcoholism", or the recently
     added "domestic violence" or "subject of a protective order"
     provisions of the Lautenberg Amendment to the Act, present
     similar difficulties of definition, different state and local standards,
     incomplete, incorrect, or misleading records, and uncertainty for a
     reasonable and law-abiding person as to whether one of the
     categories applies to him.

          Many persons are routinely required to have a mental
          examination, without any indication of mental disorder, yet
          the fact of the order of commitment or examination
          represents a "history" that could be used to make
          possession of a firearm a federal crime.

          In most states, the results of medical examinations, but
          perhaps not the fact of them, are sealed under privacy laws
          and not available for reporting or inquiry without a court
          order, preventing the subject from being able to establish
          that the result of the examination was that he had no
          disorder.

          Some persons cooperate in getting a mental health
          examination without ever knowing there is a court order. 
          Mental health examinations can include those made of
          unruly children who later turn out fine.

          There are many kinds and degrees of alcoholism, most of
          which do not result in violent behavior, and many alcoholics
          completely recover.

          Angry spouses can falsely accuse their partners of abuse to
          strengthen their position in anticipated divorce proceedings,
          and create an arrest record for the subject, without guilt
          ever being decided by a court of law.

          In many divorce proceedings, protective orders are
          routinely issued without any basis in reported violent
          behavior. Sometimes the order is just filed away and never
          served on the subject. 

While all this might indicate a need to tune the standards, standardize 
the definitions, and improve state and federal recordkeeping, there is a 
fundamental problem that was not addressed in this case: legislative 
disablement of a civil right, even upon "conviction" of a "felony". The 
thesis of this paper is that it violates the constitutional prohibitions 
against bills of attainder and ex post facto laws, and the requirement 
for due process, and that this case was wrongly decided, as was the 
earlier case of Lewis v. United States, 445 U.S. 55 (1980).

Article I, Section 9, Clause 3, says:

     No Bill of Attainder or ex post facto Law shall be
     passed.

Article I, Section 10, Clause 1, says:

     No State shall ... pass any Bill of Attainder, ex post
     facto Law, ...

The Second Amendment to the Constitution for the United States says:

     A well regulated Militia, being necessary to the security
     of a free State, the right of the people to keep and bear
     Arms, shall not be infringed. 

The Fifth Amendment says, in part:

     No person shall be ... deprived of life, liberty, or
     property, without due process of law;

Finally, the Tenth Amendment says:

     The powers not delegated to the United States by the
     Constitution, nor prohibited by it to the States, are
     reserved to the States respectively, or to the people.

Let us first consider the Fifth Amendment. What rights are protected by 
it, what is due process, what does it mean to deprive a person of such a 
right, and what is a person?

Due process is a judicial proceeding, not a legislative or executive 
proceeding. It begins with a petition to a court, and ends with an order 
granting or denying the petition, and perhaps with the execution of the 
order. In between are procedures to insure that the legitimate interests 
of everyone affected are protected from injustice. There are two main 
kinds of due process, a civil proceeding and a criminal proceeding. What 
distinguishes them is the kind of right that can be lawfully disabled by 
each. A civil proceeding may only disable a right to property. A 
criminal proceeding may also disable the rights to life, limb, and 
liberty. For convenience, all constitutional rights are grouped into 
those categories.

Let us now turn to the prohibitions against bills of attainder and ex 
post facto laws. Established precedents tend to define these terms 
narrowly, and discussion during the Federal Convention limited them to 
criminal disablements, but examined more carefully, they are actually 
just a complementary way to restate the requirement for due process in 
the Fifth Amendment, and include property as well as life and liberty. 
The Fifth Amendment says constitutional rights may only be deprived by 
judicial due process, and the prohibitions are against doing that by 
legislative process or executive process not based on a court order. 
Together, they emphasize that any disablement of a constitutional right 
must be by order of a court of competent jurisdiction upon petition and 
proof under due process protections of the rights of the defendant.

Returning to the issue in this case, how can Congress legislatively 
disable the right to keep and bear arms for the class of persons defined 
as those having been convicted of a felony, or even just indicted for 
one? It does so on the alleged authority of public safety, that is, a 
police power, and the power to regulate interstate commerce. But does 
that work? No, it does not. If it could, it would make the rights to due 
process and the complementary rights against bills of attainder and ex 
post facto laws meaningless.

What the legislative branch can do is prescribe the penalties to be 
imposed upon conviction of a crime. Indeed it must prescribe some such 
penalties for it to be a crime.

To understand this point, let us conduct a thought experiment. Suppose 
someone petitions a criminal court to prosecute an accused person for 
some offense, say, "parting one's hair on the left", and he seeks the 
death penalty. The first thing he would have to do is get an indictment 
from a grand jury. Could he get one? Of course. The grand jury is not 
supposed to return a bill of indictment on a charge that is not 
authorized by a lawful penal statute, but they might be willing to 
indict a ham sandwich, so they might do it anyway.

So the newly authorized prosecutor asks for a trial date, and the 
defendant's counsel moves for dismissal on the grounds that there is no 
statute authorizing the charge. The judge is supposed to dismiss the 
case on those grounds, but suppose he doesn't. Happens all the time. So 
it goes to trial, and the defendant demands and gets a jury.

Now, could the jury convict the accused of parting his hair on the left? 
Sure it could. The accused admits he parts his hair on the left. There 
are plenty of witnesses with evidence that he does so regularly. Now, the 
jury is not supposed to find the defendant guilty of the offense, 
because, logically, to be guilty of an offense requires not only that he 
did it as a matter of fact, but that what he did is an offense of the 
kind he is being charged with doing, in other words, that it really is a 
criminal offense, an act which the constitution authorizes the 
legislative branch to pass legislation to prohibit, with criminal 
penalties for those convicted of doing it. So let's suppose the jury 
unanimously votes to convict anyway.

Now there is a verdict. The accused has been convicted. Has he been 
deprived of any rights by that event? No. All the verdict does is 
authorize the judge, or the jury itself if it has the power to prescribe 
the penalty, to set the penalty, and the judge to issue the sentencing 
order.

What does the sentencing order do? It does three things. First, it 
disables one or more rights. That is, it restricts their exercise. In 
legal theory, constitutional rights are never "lost" or "terminated", 
but only "disabled", and disabilities can be removed, whereas rights, 
since they don't come from government, but pre-exist it, could not be 
restored if ever "lost". Second, it penalizes, or imposes a loss of 
life, limb, liberty, or property that has been enabled by the 
disablement of the rights of the defendant. Third, it authorizes and 
directs an official to carry out the penalty. These three components may 
be collapsed into a few words, but an analysis of what a proper 
sentencing order does can always be resolved into these three phases.

So let's return to our thought experiment. The jury has brought a 
verdict of guilty, and thereby authorized the judge to issue a 
sentencing order. But the prosecutor has demanded the death penalty. Can 
the judge impose that penalty, even though neither the offense or such a 
penalty is authorized by law? He is not supposed to. He is limited to 
those penalties which the legislature has prescribed for that offense, 
and if there are no penalties, there is no offense, even if the 
defendant has been "convicted".

So let's assume the judge has finally looked up the statute which the 
defendant is accused of violating, and finds there is no such statute, 
or maybe it is only an administrative statute governing the proper 
grooming for government employees, with the only penalty being to fire 
them. Since the defendant is not a government employee, what does the 
judge do at this point? Sentence the defendant to death anyway? He had 
better not, if he respects the law. Of course, some judges don't. But 
what he is supposed to do is only impose the penalties authorized by 
statute, if any, regardless of what the prosecution is seeking.

So could the legislature prescribe as a penalty the disablement and 
deprivation of the right to keep and bear arms, as the penalty for some 
offense, or even for all "felonies", or perhaps all "violent" felonies? 
Yes it could. It could prescribe a penalty of, say, ten years in prison, 
and no right to keep and bear arms for life. But suppose the judge, 
either through mercy or incompetence, sentenced the defendant to ten 
years, but omitted to explicitly disable and deprive the right to keep 
and bear arms. If it's not in the sentencing order, can some prosecutor 
come back on an appeal of the sentence and get the right to keep and 
bear arms included in the sentence? In general, court rules and the law 
do not permit a sentence to be revisited and increased in this way, or 
offer only limited time for doing so. At some point, the sentence is 
final, and may not be further increased. If there was a mandatory 
sentence, and the judge did not impose it, the only recourse is against 
the judge. Nothing further can be done to increase the penalties imposed 
on the defendant.

So where does the notion come from that a defendant "loses all rights" 
upon conviction, rather than just those rights disabled and deprived in 
the sentencing order? Incompetent legal thinking, aided by the lack of 
political clout by convicted felons and a general public attitude of 
"let's get tough on crime", but it is unconstitutional.

So now we can see what the statute that is the subject of this case 
does. It legislatively imposes a criminal penalty (although it would 
make no difference if it was civil) on the class of persons convicted 
(or even just indicted) of a crime, in many cases retroactively, without 
prescribing it as part of what is to be imposed in the sentencing order. 
Logically, that is a violation of the requirement for due process and of 
the prohibitions against bills of attainder and ex post facto laws. It 
makes no difference that persons convicted or indicted for a crime might 
present a threat to public safety. So do law enforcement officials 
acting without lawful authority.

There is also a fundamental constitutional problem with officials of one 
sovereign imposing a penalty, either civil or criminal, based in whole 
or in part on the actions of officials of another sovereign. It is a 
violation of federalism and the separation of powers. Each branch and 
level of government is accountable solely to its own electors, and may 
not delegate authority to officials of another branch or level. In this 
case, what happens if the federal government convicts and sentences 
someone of the offence of carrying a firearm, on the basis of a 
conviction of a felony in a state court, and then the state offense is 
pardoned or overturned on appeal? It simply does not work, 
constitutionally, for the decisions of a state court to determine 
whether an act is a federal crime. That applies not only to state 
criminal proceedings, but to things like protective orders, competency 
hearings and commitment orders, indictments, arrests, issuance of 
licenses or permits, or any other official action.

This case should never have made it past the grand jury. The statute, 
and others like it, are unconstitutional, as are most of the precedents 
that led to the decision and opinions on both sides in this case.

Notes:

1. The preceding list of points borrows heavily from an article by Karen 
L. MacNutt in Gun Week magazine.

2. See also Lewis v. United States, 445 U.S. 55 (1980) and the 
commentary by Jon Roland at http://www.constitution.org/ussc/445-055jr.htm. 


