May 30, 2012 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
As a Los Angeles criminal defense lawyer, I know that federal law makes it very difficult for a convicted felon to possess or use a fireman.
That’s what former Congressman Randy “Duke” Cunningham found out the hard way.
Mr. Cunningham is not a sympathetic figure. He was elected to Congress 8 times. For some, that by itself is reason not to like him. But what really sets Mr. Cunningham apart is that in 2006 he was convicted in federal court of accepting $2.4 million in bribes and evading more than $ 1 million in taxes. For his actions, he received an eight year sentence, which he has been serving in federal prison in Arizona. It is hard to overstate the extent to which Mr. Cunningham ruined his reputation. One book that chronicled his demise refers to him as “History’s Most Corrupt Congressman.”
Mr. Cunningham recently asked the judge that sentenced him to restore his right to carry and use a gun. He wants to enter shooting contests and hunt after he is released from prison.
In a letter to District Judge Larry Burns, Cunningham said that he will be 71 when he’s released from prison in December to a halfway house in Little Rock, Ark., and that he has cancer. As a convicted felon, he is barred from possessing firearms.
“I flew aircraft that could disintegrate your building with a half-second burst and now can’t carry a .22-caliber,” wrote Cunningham, a decorated Navy pilot in the Vietnam war. “Pls help me your honor. I don’t have much left but this little thing is a big thing to me.”
There is every reason to believe that Mr. Cunningham is not likely to use a gun to commit a crime. I take him at his word when he says he will live quietly in Arkansas with his 99 year-old mother.
But that is not how federal law treats convicted felons who want to get their gun rights back. Judge Burns responded to Cunningham’s letter by noting that he lacks authority to restore his gun rights, even though the United Supreme Court has recognized that the Second Amendment confers a personal right to bear arms.
I haven’t seen the text of Judge Burns’ letter, but his interpretation of federal law appears to be sound. Specifically, 18 USC 922 (g)(1) makes it pretty clear that if you are convicted of a federal felony, no guns for you.
18 U.S.C. § 922(g) prohibits specified categories of persons from shipping, transporting, or receiving any firearm or ammunition.
18 U.S.C. § 922(g) states:
It shall be unlawful for any person–
(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
Courts have interpreted this language to mean that you can be denied the right to have a gun even if you served less than a year in federal prison. Your gun rights will be denied if you were convicted of a felony that carries a maximum sentence of a year or more, even if you actually served less than a year. Given that a vast array of federal crimes are subject to prison sentences that exceed one year, in practice, a majority of people who are convicted of federal felonies are permanently deprived of their gun rights.
My guess is that the many people aren’t troubled by this deprivation of a constitutional right. But they should be. Many felonies, such as those that Mr. Cunningham committed, did not involve violence or even the threat of violence. So why should someone who serves his or her time in prison forfeit their gun rights forever?
Would your opinion change if the constitutional right in question was not the right to carry a gun but the right to vote?
The unfortunate fact is that many thousands of people have lost their right to vote because they were once convicted of a felony.
That is too high a penalty. Mr. Cunningham may have set a new standard for political corruption, but he and other felons who have served their time should not be permanently deprived of their constitutional rights.