‘Non-Dangerous Felon’ Opinion Leaves More Immediate Danger Unresolved
“Christopher Morgan was convicted in Pennsylvania in 2007 after he was caught carrying a firearm without a state license. Fifteen years later, he was stopped by a Florida officer, whom he told of a pistol in the center console of his car,” Lee Williams notes in his opening summary to a report on “non-dangerous felons retain[ing] gun rights in Florida.”
“Morgan was charged in Florida with possession of a firearm by a convicted felon,” Williams elaborates. “He has no other criminal history.”
That a citizen exercising a clearly enumerated right can be adjudicated a felon and designated as a prohibited person, forever barred from keeping and bearing arms, shows how far the Founders’ Republic has strayed from the clear mandate “shall not be infringed.” Knowing that and still talking to police while admitting being in violation of such tyrannical edicts is another puzzler. It sounds like Morgan volunteered that information, along with the information that he was a “prohibited person.”
Florida does not have a statutory “duty” for a citizen to proactively inform police if he is armed, but state law does require a truthful answer if asked. In Morgan’s case, requiring such an answer would have required him to forfeit his Fifth Amendment-guaranteed rights. The Supreme Court has already weighed in on that in the case of Haynes v United States, where it decided that felons are essentially immune to National Firearms Act registration requirements applicable to everybody else, because to require them to admit they were in violation for possession would require them to self-incriminate. Similarly, requiring a citizen to answer if armed in a “no-guns zone” would have the same effect. That will make for an interesting challenge when it happens.
But the bottom line is Morgan’s case moved forward under “pro-gun” Republican Attorney General (now U.S. Senator) Ashley Moody. And he’s rightfully fighting it. Now, enter the current AG, who made an interesting observation in the State of Florida’s Notice Regarding Its Position and Motion for Leave to File Supplemental Brief that some could consider a comment on his predecessor.
Acknowledging “It is the Attorney General’s duty to represent the State in criminal appeals before this Court,” Uthmeier adds an interesting qualifier:
“It is … the Attorney General’s duty to admit when he believes the State has obtained a conviction in violation of the Constitution. Indeed, although the Attorney General ‘ordinarily’ defends state law, he must also ‘exercise conscientious judgment’ in the discharge of his duties.”
He also made an interesting point about non-violent and violent felons being lumped together:
“The State previously filed an answer brief taking the position that Appellant Christopher Morgan was properly convicted of being a felon in possession of a firearm. On further reflection, the Attorney General is of the view that the conviction violated Morgan’s Second Amendment right to keep and bear arms. Properly understood, the Second Amendment permits the government to dispossess felons whose convictions indicate that the felon is dangerous, but not merely all felons as a categorical matter.”
What Uthmeier’s opinion does not address is the disconnect between ineffective sentencing practices and reality. Put simply, anyone who can’t be trusted with a gun can’t be trusted without a custodian. He has proven himself dangerous to others through his crimes.
The late Robert J. Kukla made a brilliant observation in his 1973 classic, Gun Control, equating the release of violent misfits from prison with opening the cage of a man-eating tiger and expecting a different result.
If it has been proven that a known predator is a danger, how is it responsible for government, charged with protecting life, freedom, and property, to allow such a menace to have access to the rest of us before it can be established that he is no longer a threat? (And which scientific experts have the demonstrable, repeatable ability to give that assurance?) Does anyone think he couldn’t victimize others with something else, or with no weapon at all (the FBI says more people are killed with fists and feet than with all types of rifles)? Or, noting routine headlines from places like Chicago and Baltimore, that he couldn’t get a gun regardless of any laws?
As the Bureau of Justice Statistics notes in a 2019 prisoner survey:
“[M]ore than half (56%) had either stolen it (6%), found it at the scene of the crime (7%), or obtained it off the street or from the underground market (43%). Most of the remainder (25%) had obtained it from a family member or friend, or as a gift. Seven percent had purchased it under their own name from a licensed firearm dealer.”
Making the issue about who is not “allowed” to own guns because they’re dangerous misses the real issue. They’re dangerous without guns, too. Why wouldn’t such proven menaces be separated from society (after being afforded real “due process,” with all appropriate protections of course) until and unless they can be trusted not to attack people?
As for the non-violent convicts, Uthmeier is spot on, noting “the lack of historical evidence supporting the dispossession of all felons.” But as for “the strong historical evidence supporting the disposition of dangerous felons,” it will be interesting to see him present what he’s got, and to note how many were either never let out or hanged after their Sixth Amendment-guaranteed “right to a speedy and public trial.” Text, history, and tradition tell us people at the time of ratification weren’t big on waiting 30 years for justice to play out and then paying for a gourmet “last meal.”
As for federal prohibitions resulting from state convictions, 18 U.S.C. § 921acknowledges:
“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. 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 for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”
The Department of Justice has cleverly gotten around appropriations limitations imposed by the “Schumer Amendment” that defunded ATF from working on rights restoration, by rescinding ATF’s delegation for that responsibility. Still to be determined is the criteria that the department will use, which it has to date declined and resisted to define, and is fighting in court to keep from disclosing to gun owners.
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
