After Fargo police officer Jason Moszer was killed a couple of weeks ago it came to light that the man who was in a standoff with Moszer and other officers, one Marcus Schumacher, had legal access to guns even though he’d previously been convicted of a felony.
I should be clear that we don’t know yet where or how Schumacher got his guns – did he purchase them himself, or did he get them by way of some other means? – but the fact that he had legal access to guns has some calling for reform.
“It makes people ask questions, was something done that could have prevented this?” state Rep. Blair Thoreson, a Republican from Fargo’s District 44, told WDAY. Thoreson, who is a card-carrying member of the NRA and a quite conservative member of the state Legislature, says he wants to change the law to block felons from getting guns.
“This is about people who are violent felons, who’ve committed crimes against other people, not being able to do it again,” he said.
I think Thoreson has the right idea, but if we’re going to change the law we need to make sure we go about doing it the right way. We shouldn’t think of this as some sort of a silver bullet to stop violence. Most crimes – more than half – involving guns are committed by people legally prohibited from owning or possessing guns. Big surprise that criminals don’t follow gun laws, right?
We also need to understand what the status quo in the law is.
It has been widely, and inaccurately, reported that Schumacher got his gun rights back because of a law passed in the 2011 legislative session allowing for felons to petition the courts for them. But there’s no evidence that Schumacher did any such thing. Rather, it appears as though another law dating back to 1985 and most recently reviewed by the 2007 legislature (with both Thoreson and then-lawmaker Joel Heitkamp, currently a left wing talk radio host in Fargo backing it) which allows felons – even violent felons – to get their gun rights back after a set number of years.
This is all a little complicated, but here’s how it works:
- Federal felony conviction = banned for life
- State felony conviction = banned for life or a term of years, based on the law of each state
- Conviction for misdemeanor crime of domestic violence = banned for life
In North Dakota specifically under current law:
- Felony crime involving violence or intimidation = 10 years of lost gun rights
- Non-violent felony = 5 years of lost gun rights
- Misdemeanor involving violence or intimidation (committed while using or possessing a firearm or dangerous weapon) = 5 years of lost gun rights
- Any person on probation (supervised or unsupervised) is prohibited.
If you’re thinking this all sounds needlessly complicated, you’re not wrong. “Our firearm laws are some of the worst laws we have as to ambiguity,” Grand Forks defense attorney Tyler Morrow told me when he was helping me review these laws.
Clearly this area of our law needs some legislative attention. So here are some suggestions going forward.
First, non-violent felony offenders should get their gun rights back immediately once their sentence/parole/restitution has been finalized. I see little benefit for society in acting against the gun rights of someone without a history of violence.
Second, violent felons generally should lose their gun rights for at least ten years. The basis of that should be the final disposition of their conviction. Sometimes people initially convicted of a felony will see it reduced to a lesser charge once they’ve successfully completed their sentences. If the court is comfortable with downgrading a felony to a misdemeanor, then a misdemeanor it should be.
Third, people convicted of felonies beyond a certain threshold of seriousness should lose their gun rights permanently. As an example, I’m comfortable with someone guilty of negligent homicide (driving recklessly and causing someone else’s death, for example) having the opportunity to get their gun rights back eventually (more on that in a moment). They acted irresponsibly, but they’re not violent. However, I am not comfortable with someone getting their gun rights back after being convicted of beating someone to death with a baseball bat. I’m not sure where we should draw that line in the spectrum of felonious criminal activity but I’m sure the Legislature can come up with something workable with input from the legal community.
Fourth, for violent felons eligible to get their gun rights back, they should be required to petition the court to have them restored. There should be a presumption in that process for restoration, which is to say that the state should have the burden to prove that the felon in question should not have the run rights restored after ten years. If the state meets that burden, the felon loses their rights for another 10 years. If the state doesn’t, the felon gets his/her gun rights back.
I’m sure there are other tangential issues I’m not thinking of, but this is a good place to start.
One thing we have to keep in mind is that gun rights are constitutionally protected. The right to keep and bear arms is a civil right. We shouldn’t treat it cavalierly. Nor should we pretend as though restrictions on gun rights are an effective way to fight crime, because they’re not.
That said, there should be consequences for violent criminal activity, and the law as it pertains to gun rights needs to be clearer as to what those consequences are.