[Ed. note: This guest blog post is part of the Center’s Mini-Symposium on papers presented at the 2020 Firearms Law Works-in-Progress Workshop.]
The United States Constitution provides citizens with the right to vote and protects “the people” from the infringement of their right to keep and bear arms. As with just about every right or privilege provided for in the Constitution there are limitations on these rights. One such limitation is that these rights are lost upon a felony conviction.
While these are not the only rights lost upon a felony conviction—often referred to as collateral consequences—the loss of these rights are unique in that they originate from the Constitution. This suggests that there is a special quality or character to these rights which warranted their inclusion in the Constitution, or, rather, the amendments to it, in the first place.
While these rights are granted through the same means—the Constitution—and lost in the same manner—following a felony conviction—the process for restoring these rights lacks a uniform approach commensurate with their fundamental nature. The restoration of these rights often depends on a complicated interplay between state and federal law. And state laws can vary greatly, meaning that a person convicted of a felony in one state may have an easier path to recovering their right to vote or own a firearm than a person convicted of an identical crime in a different state. As a result, the location where an individual commits a crime may control whether, if ever, they can recover these rights.
The consistency in how these rights are gained and lost clashes with the varied processes that allow for their recovery. An approach that (1) is more uniform on a state-by-state basis and (2) takes into consideration the reasons why it has been deemed appropriate for convicted felons to lose these rights would better correspond to the significance of these rights as established through their inclusion in the Constitution. The inequity of the present system in which a convicted felon may immediately regain the right to vote upon their release from prison in one state as compared to another state in which a felon may never have that right restored can and should be remedied.
The present lack of uniformity in how these rights are restored may be explained, in part, because these rights, despite their fundamental nature, are relatively new in many respects with regard to their inclusion in the Constitution or formal recognition by the United States Supreme Court. Thus, there has perhaps not been enough time for states or the federal government to recognize the need for and reach a consensus on a more uniform approach for restoring these rights.
While the right to vote may seem at the heart of the democracy created by America’s founders, a citizen’s right to vote was not explicitly mentioned in the Constitution until 1868 with the ratification of the Fourteenth Amendment. There, Section 2 of the amendment refers to the voting rights of male citizens that are twenty-one years of age. Until then, the Constitution was silent as to which citizens, if any, had the right to vote, although in practice these rights had been limited to white males.
Shortly thereafter, in 1870, the Fifteenth Amendment was ratified. The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” Voting rights were further expanded through the Nineteenth and Twenty-Sixth Amendments in 1920 and 1971, respectively. The Nineteenth Amendment granted women the right to vote. And the Twenty-Sixth Amendment expanded the right to vote to U.S. citizens that were eighteen years of age. Accordingly, voting rights are not as old as some would expect with regard to large cross-sections of the U.S. population and are really quite new as compared to the Constitution’s ratification in 1788.
In contrast, the Second Amendment was part of the Bill of Rights ratified in 1791 right on the heels of the Constitution’s ratification. Yet, despite that historical head start, the private right to keep and bear arms was not recognized by the United States Supreme Court until 2008 in District of Columbia v. Heller, 554 U.S. 570 (2008).
As such, these rights that many Americans may view as foundational have really only been formally recognized in more recent times. Nonetheless, the loss of these rights upon a felony conviction remains well established.
In Richardson v. Ramirez, 418 U.S. 24 (1974), the Court found that a California law that prohibited convicted felons from voting was constitutional. Id. at 56. There, the Court relied upon Section 2 of the Fourteenth Amendment as permitting the disenfranchisement of felons through language that references the “right to vote . . . except for participation in rebellion, or other crime . . . .” Id. at 42–43, 54.
In Heller, after the Court concluded that the Second Amendment established a private right to keep and bear arms, the Court stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . .” 555 U.S. at 626. This language confirmed the constitutionality of laws like 18 U.S.C. § 922(g), which provides that “[i]t shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm. . . .”
While these precedents establish that it is permissible for the government to prohibit felons from exercising these rights, they also leave open the possibility for creating a more uniform approach to restoring these rights. Accordingly, assuming the collateral consequence of losing these rights is not intended to further punish the convicted individual, which seems reasonable given that the restriction often continues after a prison sentence is completed, the loss of these rights must be intended to protect against some risk or danger presented by a former felon exercising the right to vote or own a firearm.
From this perspective, it would seem that an independent body on a statewide or federal level composed of subject-matter experts, including mental health professionals, would be well-suited to evaluate the risk, if any, in restoring these rights on a case-by-case to convicted felons. This body could address questions such as whether an individual convicted of a violent felony presents any risk of engaging in a voting-related crime upon completing their sentence. If there is no or minimal perceived societal risk in restoring the franchise to a particular individual, then it would seem reasonable that they be permitted to vote.
This body could likewise address if there are legitimate risks presented in restoring the right to own a firearm to a non-violent felon. The same analysis could be performed for restoring firearms to a felon who, regardless of whether their crime was violent or non-violent, has a history of mental health issues or suicidal ideation, which could impact their own health and well-being if permitted to purchase a firearm.
In sum, the patchwork of laws related to the restoration of the right to vote or own a firearm could be greatly improved upon through an approach that (1) is more uniform across states and (2) ties the restoration of these rights to the perceived dangers or risks that warrant their loss in the first place.
Margaret Colgate Love et al., Collateral Consequences of Criminal Convictions: Law, Policy and Practice (2016)
Collateral Consequences Resource Center, Restoration of Rights Project, 50-State Comparison: Loss & Restoration of Civil/Firearms Rights (last visited Augsut 16, 2020), https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-restoration-of-civil-rights-and-firearms-privileges/