Holding Constitutional Rights Hostage

The tit-for-tat messaging has become a ubiquitous tool of divisive politics. They did it to us so we’re going to do it to them and see how they like it. Hah! Sure, it’s infantile and invokes the logical fallacy of tu quoque, but it plays well with the perpetually outraged. But it’s one thing to use this weapon for dispute that don’t involve constitutional rights, and another thing entirely to do what Tennessee is trying to do, trade off the right to vote with the right to keep and bear arms.

Tennessee, which imposes notoriously demanding requirements on residents with felony records seeking restoration of their voting rights, recently added a new wrinkle: Before supplicants who have not managed to obtain a pardon are allowed to vote again, they have to successfully seek restoration of their gun rights, a task that is complicated by the interaction between state and federal law. Given the difficulty of obtaining relief from the federal gun ban for people convicted of crimes punishable by more than a year of incarceration, this requirement would be prohibitive in practice.

Is there any reason, one might argue, that the rights under the Second Amendment should be treated as hated and subject to a constant stream of roadblocks while the right to vote is adored, with any pebble in the road to the polls called “suppression” and immediately removed? The short answer is obvious, that there are favored and disfavored rights, based largely upon where one lives and what team one plays for.

Why is Tennessee making an arduous process even more difficult? According to a statement that Tennessee Coordinator of Elections Mark Goins gave The Tennessean, the state’s Supreme Court “made it clear” in the 2023 case Falls v. Goins that “a felon must receive a pardon from the governor or other appropriate authority or have his or her full citizenship rights restored as part of the path to regain the right to vote.” Under the Tennessee Constitution, Goins said, “the right to bear arms is a right of citizenship.” Article I, Section 26 of the state constitution says “the citizens of this State have a right to keep and to bear arms for their common defense,” adding that the legislature nevertheless “shall have power, by law, to regulate the wearing of arms with a view to prevent crime.’”

Of course, buried under the official “right of citizenship” rhetoric is that rural conservatives favor gun rights, while urban liberals favor voting rights, ostensibly because they believe that the marginalized and disenfranchised are more likely to vote Democrat and aid the election of their candidates. It’s not that the “right of citizenship” argument doesn’t have a point. Indeed, it’s flagrantly hypocritical to cry over the obstacles for voting, like a felony conviction, while applauding the same obstacles when they deny someone their Second Amendment rights. If citizens get the rights that citizens get, then that applies to the full panoply of constitutional rights, not just the ones you like.

But the problem is that there are laws pertaining explicitly to the possession of firearms that have no analagous prohibition as to voting.

Under 18 USC 922(g)(1), it is a felony for someone to receive or possess a firearm if he has been convicted “in any court” of “a crime punishable by imprisonment for a term exceeding one year.” And under Tennessee law, possessing a firearm is a misdemeanor for anyone who qualifies as a “prohibited person” under federal law. So according to the new interpretation of Tennessee’s requirements, a resident seeking restoration of his voting rights first has to recover his gun rights under federal law, which is currently impossible for someone convicted of a state felony.

In other words, Tennessee can’t undo the federal law as to the right of felons to possess guns even if it actually wanted to. What this law, conditioning voting rights on gun rights, seeks to do is leverage voting, which Democrats want, against felons in possession, which Dems don’t. It’s tantamount to using constitutional rights, one fundamental and the other civic, as bargaining chips in the battle of left and right.

There are reasonable and legitimate arguments to be made about why some people convicted of a felony should not be denied their rights under the Second Amendment. What if the crime was non-violent? What if the crime lacked mens rea, or involved merely negligence? What if decades have elapsed since the crime and the person has more than demonstrated that he or she is a trustworthy, law-abiding citizen? Why should their constitutional rights not be restore. And for those gnashing their teeth as they read this, that means their right to vote as well.

But holding one right hostage for the other is not the way to either argue the merits of the point or reach a resolution. Even if there was any chance it would be effective in making the point, and perhaps even effectuating some change, constitutional rights are not bargaining chips and should not be used in a way that suggests they’re on the table. Respect all constitutional rights, including those you disfavor, and if you don’t want the other tribe taking your rights away, don’t challenge them by taking theirs away or else.

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