Gun Owners With CCW Permits Must Be Able to Navigate Legal Minefields

Used as a metaphor, a “minefield” is a subject or situation presenting unseen hazards that might “blow up in your face.” A legal minefield might be thought of as a trap for the unwary, entangling one in a legal problem such as a civil suit or a criminal charge. Most people who are law-abiding, and gun owners with CCW permits are statistically a law-abiding group, believe that avoiding a criminal charge is a no-brainer. How can a non-violent person who does not lie, cheat or steal inadvertently run afoul of the criminal law?

The problem is there are too many crimes that are defined as felonies today, and too many felonies that should not be crimes at all. There are federal felonies that most people would think should not be crimes at all because they do not require a guilty state of mind or intention to inflict harm on anyone. There is a spate of new books about this phenomenon, such as Three Felonies a Day, How the Feds Target the Innocent; Go Directly to Jail: The Criminalization of Almost Everything; and One Nation Under Arrest, How Crazy Laws, Rogue Prosecutors and Activist Judges Threaten Your Liberty.

For gun owners any felony conviction takes away the right to possess firearms for life [U.S.C. §922(g)(1)]. It need not be a violent felony, and it need not be a felony that even meets the classical definition of a “felony” as an act of violence usually involving murder, arson, assault and battery, rape or robbery. It can even be a crime designated a felony in one state and not a crime at all in another state. For example, it was only recently a felony in New Mexico to carry a firearm into any establishment that dispensed alcoholic beverages, even a convenience store that sold beer (the law has now been changed somewhat from the original). But in Colorado it was and is not a crime at all for a CCW permit holder to carry his or her concealed firearm into a bar. Here is a legal minefield. A Colorado CCW holder may have thought the law to be similar in New Mexico and end up with a felony conviction, and loss of the right to possess a firearm for the rest of his or her life.

Gun owners who travel must know the laws of the state they’re in, if they travel with their guns. [the Federal Volkner-McClure Act on the right to travel is of limited protection and is a subject for another day]

The New Mexico/Colorado legal dichotomy is but one example. Others abound. Don’t even think about carrying a firearm into New Jersey. Thinking about it might be a felony.

How about the argument that disparate treatment in different states of what constitutes a felony, especially treating non-violent acts as felonies that are not even crimes in other states, constitutes a violation of the equal protection clause of the 14th Amendment? Forget it. That argument has been soundly rejected by Federal Courts, such as in United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

Nevertheless, the denial of 2nd Amendment rights to non-violent felons may be an emerging issue. In United States v. Duckett, (9th Circuit, Dec. 10, 2010) one of the judges said this:

Although I join the majority in full, were I not bound by United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), I would examine whether, notwithstanding the Supreme Court’s dicta in District of Columbia v. Heller, ___ U.S. ___ 128 S.Ct. 2783, 2816-17 (2008), the government has a substantial interest in limiting a non-violent felon’s constitutional right to bear arms. See United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010) (“[W]e recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.”)

Duckett is a “not for publication” decision meaning it can’t be cited as authority. Don’t you wish you could designate some things you write or say as “not for publication” so you couldn’t be held responsible? For judges, it’s the legal equivalent of “King’s X” which in real life is only for children.

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