# Think Tank > U.S. Constitution >  Where is "convicted felons can't own guns" in the constitution?

## jmdrake

For the life of me, each time I read the 2nd amendment I keep skipping over the "convicted felons can't own guns" clause.  The whole idea of the legitimacy of background checks is to keep guns out of the hands of felons.  But....I've never read where felons were barred from owning guns.

Hmmm...is that part of the militia clause?  Maybe.  But felons are not generally barred from military service (I looked it up just to be sure) and more importantly felons are not exempted from the draft.[1]  That's right.  The gubmint can *force* you to carry a gun even if you are a convicted felon which means that it considers felons part of the body of people that can be called upon if we were ever invaded.  And isn't one of the purposes of the militia to repel invasions?

Now I get why anyone in jail or prison can't have a firearm.  But there are all sorts of rights that people lose while in prison.  There is no right against "unreasonable search and seizure" while one is in jail or prison.  But once release, all of those rights are restored.  So....why not one's second amendment rights?  I understand the "logic" from a "we just don't want criminals to have guns" argument.  Okay.  Then change the constitution.

I did a little bit of research before writing this post.  The case D.C. v Heller, which was *not* about whether or not barring felons from owning guns, does address it in dicta.  (Dicta is stuff in an opinion that's interesting but isn't binding precedent).  Apparently there was concern raised that ruling there was an individual right to own guns would mean felons could own guns.  The _Heller_ court stated that their ruling didn't cover that question.  It also referred to an earlier case, _Lewis v. United States_ that was about a felon being convicted for possessing a firearm, but that felon only challenged the felony conviction itself, not the underlying second amendment question.

Here is the footnote from _Heller_ in its entirety. (Footnote 25 on page 53)

_Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon
in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second
Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in
a footnote, that [t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they
trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and
bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well regulated militia). Id., at 6566,
n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the
basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not
argued._ 

So it seems like the constitutionality of whether or not a felon has the right to keep and bear arms has never been directly challenged in the U.S. Supreme Court.  (If someone can think of an actual case, please post it.)  Now I guarantee you that the overwhelming majority of Americans, including "conservatives" and including people who consider themselves constitutional "textualists" will tell you that barring felons from owning guns is both constitutional and reasonable.  I have no argument for the "reasonable" point.  But constitutional?  It doesn't seem like it.  If I'm wrong, show me how I am wrong with an actual constitutional argument.  Seriously....somebody debunk me.  This seems pretty far out there.  If I'm wrong on this I want to know it.

[1] Interestingly enough you are exempted from the draft if you are *confined* but that's it. See: https://www.sss.gov/Registration/Who...Register/Chart  Also during WW I felons were exempted.  See: https://www.newspapers.com/clip/9313...ilitary_draft/

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## Superfluous Man

Maybe in the clause of the 13th Amendment saying, "except as a punishment for crime whereof the party shall have been duly convicted"?

This is assuming that restriction from bearing arms could be included within the broader restrictions that slavery entails.

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## jmdrake

> Maybe in the clause of the 13th Amendment saying, "except as a punishment for crime whereof the party shall have been duly convicted"?
> 
> This is assuming that restriction from bearing arms could be included within the broader restrictions that slavery entails.


Good point.  But the government ability to use convicts as slave labor ends when they are released.  At least that's the way the it's been done up until this point.

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## jkr

it all comes from the 
f
b
I
and THAT came from Nixon using cannabis to $#@! on anti wor & negro AMERICANS

all 
so 
we
could
have a HOOK
put in our nose and led into the wasteland
to die

for people that loath us...thanks fbi & Nixon fk YOU forever

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## Brian4Liberty

Denying ex-felons their Second Amendment rights after leaving jail was the first step in the slippery slope to banning them for everyone.

Red Flag laws would not be possible without this first step (precedent).

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## TheTexan

If they can prove to a judge that the firearm will be used for legitimate hunting purposes, and not for hurting people, then I agree they should be able to have a hunting rifle.

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## Suzanimal

It’s in the super fine print under shall not be infringed.

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## Matt Collins

It was well understood prior to the Constitution that natural rights exist (see Declaration of Independence).  It was also well understood that if one violates the rights of another, and is convicted in a court of law with proper due process, they can have their rights abridged.


The way it should work is that if you are convicted of a violent crime, especially with a firearm, then your RTKBA should be suspended. On the other hand if you are not convicted of a violent crime but instead a non-violent crime, then one's RTKBA should not be suspended.

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## Schifference

> It was well understood prior to the Constitution that natural rights exist (see Declaration of Independence).  It was also well understood that if one violates the rights of another, and is convicted in a court of law with proper due process, they can have their rights abridged.
> 
> 
> The way it should work is that if you are convicted of a violent crime, especially with a firearm, then your RTKBA should be suspended. On the other hand if you are not convicted of a violent crime but instead a non-violent crime, then one's RTKBA should not be suspended.


I thought suspended meant that you would get them back after a period of time. 

sus·pend
/səˈspend/
 Learn to pronounce
verb
1.
temporarily prevent from continuing or being in force or effect.
"work on the dam was suspended"

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## oyarde

Must be right there with food stamps , planned parent hood and earned income tax credit tax refunds greater than what was pd and all that other good stuff that is kind of popular here .

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## pcosmar

By the Law in the state I was convicted in,, I had a legal right to own a shotgun like the one stolen from my wife,,,

Michigan wanted to make a Federal Case of it.

and I got a 4th Felony.

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## Swordsmyth

> It was well understood prior to the Constitution that natural rights exist (see Declaration of Independence).  It was also well understood that if one violates the rights of another, and is convicted in a court of law with proper due process, they can have their rights abridged.
> 
> 
> The way it should work is that if you are convicted of a violent crime, especially with a firearm, then your RTKBA should be suspended. On the other hand if you are not convicted of a violent crime but instead a non-violent crime, then one's RTKBA should not be suspended.


It didn't help crime and it should be repealed, there are so many other kinds of weapons they can use and they can obtain them illegally that it's a farce.
Anyone who shouldn't be allowed guns should be dead or imprisoned for life.

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## jmdrake

> It was well understood prior to the Constitution that natural rights exist (see Declaration of Independence).  It was also well understood that if one violates the rights of another, and is convicted in a court of law with proper due process, they can have their rights abridged.
> 
> 
> The way it should work is that if you are convicted of a violent crime, especially with a firearm, then your RTKBA should be suspended. On the other hand if you are not convicted of a violent crime but instead a non-violent crime, then one's RTKBA should not be suspended.


Ummmm....no.  It was not "understood" that the RTKBA would be suspended *post* release.  How would they even do that?  There was no way to do universal background checks back in the 1800s.  What was someone going to do?  Wait a couple of month for the Pony Express to go back and forth to D.C.?

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## jmdrake

> I thought suspended meant that you would get them back after a period of time. 
> 
> sus·pend
> /səˈspend/
>  Learn to pronounce
> verb
> 1.
> temporarily prevent from continuing or being in force or effect.
> "work on the dam was suspended"


^This

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## pcosmar

Then there is that whole "Violent Crime" thing...

In my case 3 armed Robberies..

The bank manager described it at the time as the most polite bank robbery ever.. 

I heard in the news.  

My wife was with me 15 yrs before she ever saw me use Violence,, and that was in Defense.

I lived under an alias for about 8 years.. " Assumed Armed and Dangerous"

I turned myself in in 1995,, the Lower Monroe County SWAT Team did not want to arrest me.

Seriously..

I sat on the trunk of a Cruiser,, with a 40 oz,, and a bunch of armed and armored men that  needed to be convinced to take me to jail. 

I showed them my tattoos and had them check,,and told them the story of how I found myself there..

It was beyond polite,,  

I don't really think I am as Dangerous as I am considered,, and don't like to think myself that way..

but I have never been really "safe" either.

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## PAF

"Have You Committed your Three Felonies Today?"

Jim Jatras At RPI''s Media & War Conference





http://www.ronpaullibertyreport.com/...war-conference

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## Matt Collins

> I thought suspended meant that you would get them back after a period of time.


Depends on the crime and severity. 

Someone who murders someone with a firearm should never get their right to keep and bear arms back. Someone who holds up a gas station in their 20s should get them back later on in life if they have proven that they are a different person.

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## Matt Collins

> It didn't help crime and it should be repealed, there are so many other kinds of weapons they can use and they can obtain them illegally that it's a farce.
> Anyone who shouldn't be allowed guns should be dead or imprisoned for life.


With rights come responsibilities. So if you misuse or abuse your rights, you lose them, and rightly so.  If you misuse a firearm then your right to use a firearm should be denied.

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## Matt Collins

> Ummmm....no.  It was not "understood" that the RTKBA would be suspended *post* release.  How would they even do that?  There was no way to do universal background checks back in the 1800s.  What was someone going to do?  Wait a couple of month for the Pony Express to go back and forth to D.C.?


Prior restraint is something different. But you already know that ;-)

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## Swordsmyth

> With rights come responsibilities. So if you misuse or abuse your rights, you lose them, and rightly so.  If you misuse a firearm then your right to use a firearm should be denied.


For as long as you are locked up, if you should be denied the right to arms for life then you should be locked up for life because there are too many other kinds of weapons you might use.

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## Swordsmyth

> Depends on the crime and severity. 
> 
> Someone who murders someone with a firearm should never get their right to keep and bear arms back.


They should be dead or in prison for life.




> Someone who holds up a gas station in their 20s should get them back later on in life if they have proven that they are a different person.


They should get them back as soon as they are out.

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## PAF

> With rights come responsibilities. So if you misuse or abuse your rights, you lose them, and rightly so.  If you misuse a firearm then your right to use a firearm should be denied.


3 cops break/enter your home w/o a warrant. To protect your kid you shoot one of the cops who appears to be aiming in that direction. Chance has it that most everybody in that community opposes guns (heavily democrat) and supports LEO and some are sitting on the jury.

What now?

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## Stratovarious

> It was well understood prior to the Constitution that natural rights exist (see Declaration of Independence).  It was also well understood that if one violates the rights of another, and is convicted in a court of law with proper due process, they can have their rights abridged.
> 
> 
> The way it should work is that if you are convicted of a violent crime, especially with a firearm, then your RTKBA should be suspended. On the other hand if you are not convicted of a violent crime but instead a non-violent crime, then one's RTKBA should not be suspended.


If a man has 'natural rights' which of course I agree, then how do you propose you go about pretending 
those rights are not any longer 'natural' , this to me makes no sense at all.

If the man is dangerous, the sentence should be long enough to the point he is no longer dangerous 
to society, if that can't be done, than perhaps the sentences should have been longer.

A man forges a million dollar check , so we know that's a felony, it  should be ok to take his 'natural rights away' , you think he's going to shoot someone, 
again, this really doesn't seem to make much sense .


: shrugs :

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## tod evans

> With rights come responsibilities. So if you misuse or abuse your rights, you lose them, and rightly so.  If you misuse a firearm then your right to use a firearm should be denied.


Under this theory people who "misuse or abuse" their God given right to fornicate (procreate) should lose all "rights" to their genitalia. 

The right to keep and bear arms "MAY NOT BE INFRINGED ON"....

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## Occam's Banana

> *Where is "convicted felons can't own guns" in the constitution?*


How could you miss it?

It's right after the bit about how people who are mentally handicapped or on crazy pills shouldn't be allowed to have guns.

Just ask Ron Paul ...

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## Matt Collins

> They should get them back as soon as they are out.


I tend to agree with that. Either you have served your time and been punished or you haven't.

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## Matt Collins

> 3 cops break/enter your home w/o a warrant. To protect your kid you shoot one of the cops who appears to be aiming in that direction. Chance has it that most everybody in that community opposes guns (heavily democrat) and supports LEO and some are sitting on the jury.
> 
> What now?


You're boned because the government did something illegal and the rest of society are idiots. Get the best defense attorney you can.

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## Matt Collins

> If the man is dangerous, the sentence should be long enough to the point he is no longer dangerous 
> to society, if that can't be done, than perhaps the sentences should have been longer.
> 
> A man forges a million dollar check , so we know that's a felony, it  should be ok to take his 'natural rights away' , you think he's going to shoot someone, 
> again, this really doesn't seem to make much sense .


No..... the rights should be denied based on the crime. White collar crime shouldn't involve removing someone's rtkba. You should only have your rtkba removed if you have proven yourself to be violent and/or especially if a firearm was used in the commission of a crime (robbing a bank). Or if you are adjudicated mentally ill or incompetent by a court of law with full due process (not red flag laws).

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## Matt Collins

> Under this theory people who "misuse or abuse" their God given right to fornicate (procreate) should lose all "rights" to their genitalia.


There are ideas that people who rape should be castrated which I can see arguments both for and against. Perhaps that is cruel and unusual?

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## Stratovarious

> No..... the rights should be denied based on the crime. White collar crime shouldn't involve removing someone's rtkba. You should only have your rtkba removed if you have proven yourself to be violent and/or especially if a firearm was used in the commission of a crime (robbing a bank). Or if you are adjudicated mentally ill or incompetent by a court of law with full due process (not red flag laws).


My guess is that if they can't use a gun to commit a violent act (considering a violent past) , 
they will use another tool should they decide to become violent again.

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## tod evans

> No..... the rights should be denied based on the crime. White collar crime shouldn't involve removing someone's rtkba. You should only have your rtkba removed if you have proven yourself to be violent and/or especially if a firearm was used in the commission of a crime (robbing a bank). Or if you are adjudicated mentally ill or incompetent by a court of law with full due process (not red flag laws).





> My guess is that if they can't use a gun to commit a violent act (considering a violent past) , 
> they will use another tool should they decide to become violent again.


A musket hanging on the mantle is "Using and carrying a firearm during the commission of a felony"  under federal law.

Real people/common sense does not apply to laws, how they are worded, enforced or interpreted by the courts.

Given that...............Better all free men armed than one who needs to be forced by fiat to be unarmed.

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## pcosmar

> Depends on the crime and severity.


What about shooting the man that Raped your Wife..??

I knew a man doing 40 for it.

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## Matt Collins

> What about shooting the man that Raped your Wife..??
> 
> I knew a man doing 40 for it.


If he was caught in the act and it was self defense, then yes.

After the fact, no. Vigilante justice isn't really acceptable in an ideal world.... the worst criminals out there are still owed due process, fair trial, etc.  You can't just murder someone because they committed an atrocious act.

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## pcosmar

> If he was caught in the act and it was self defense, then yes.
> 
> After the fact, no. Vigilante justice isn't really acceptable in an ideal world.... the worst criminals out there are still owed due process, fair trial, etc.  You can't just murder someone because they committed an atrocious act.


Justifiable Homicide.
 I have seen a Judge rule so once..

Several men are inside walls for Justifiable self defense. as well as many innocent of what they are accused.

the system is well beyond phucked.

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