An interesting and, I think, sound analysis by Greg Lukianoff (FIRE), responding to ACLU National Legal Director (and Georgetown law professor) David Cole’s review of Lukianoff & Rikki Schlott’s The Canceling of the American Mind in the New York Review of Books. An excerpt: [A]fter 9/11 only about three professors lost their jobs for speech…

People vote in voting booths | Joe Sohm/

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.

If it is upheld by Tennessee courts, the new policy would essentially mean “there’s no way to vote” for people who were disenfranchised based on their criminal records, says Adam Ginsburg, a spokesman for the Campaign Legal Center (CLC), which has challenged Tennessee’s voting requirements in federal court. Even without the problem created by federal gun laws, CLC attorney Blair Bowie says, people convicted of drug felonies or violent crimes “will not be able to restore their gun rights” under Tennessee law. “It’s beyond the pale,” she says. But she adds that “it’s still an open question, because the Elections Division, which governs who can register to vote in Tennessee, clearly hasn’t really thought that through.”

The new requirement would further complicate a process that is already hard to navigate. “Tennessee has the most convoluted, harsh and poorly managed rights restoration process of any state in the country,” the CLC reported in 2022. Among other things, “Tennessee is one of only a handful of states that conditions the right to vote on payment of legal debt and the only state that requires a person to be current on child support to restore their voting rights.”

Tennessee’s obstacles to re-enfranchisement have had the sort of impact you might expect. “Over 450,000 citizens—accounting for more than 9% of the voting age population—are denied the right to vote because of past felony convictions,” the CLC noted. “Since 2016, less than 1% of post-sentence Tennesseans have gotten their voting rights back due to modern-day poll taxes and issues with obtaining a Certificate of Restoration,” which requires a court order.

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.'”

Since the right to arms is “a right of citizenship,” Goins said, it follows that anyone who is still legally barred from owning guns is not allowed to vote unless he obtains a pardon. That is a reversal of the position that state election officials were taking as recently as last December. When Goins was deposed in the CLC case on December 13, The Tennessean reports, “the Secretary of State’s office did not consider gun rights as part of the ‘full rights of citizenship’ necessary for voting.” A “training document” that Goins read during his deposition, which was still being used as of May 2022, included this clarification: “Gun rights are also a citizenship right, but they involve overlapping federal laws so it’s okay if those are not restored as long as the other citizenship rights are restored.”

Not anymore, according to Goins. And those “overlapping federal laws” pose a real problem for people convicted of the “infamous crimes” that trigger disenfranchisement in Tennessee. “Any felony” falls into that category, so it includes drug law violations and other nonviolent offenses as well as violent crimes.

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.

Under 18 USC 925(c), a prohibited person notionally can apply to the attorney general for relief of the disability imposed by Section 922(g)(1). The attorney general “may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” If relief is denied, the applicant can challenge that decision in federal court. But this process is only theoretically available to people with felony records, because Congress decided they should not be able to use it.

“Although federal law provides a means for the relief of firearms disabilities,” the Justice Department’s Bureau of Alcohol Tobacco, Firearms, and Explosives (ATF) warns, “ATF’s annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.” Consequently, the new hoop that Tennessee election officials have set up is blocked by a brick wall.

Falls v. Goins, the 2023 decision that Goins says requires that new hoop, did not actually address the issue of whether gun rights are a prerequisite for voting rights. The question was whether someone convicted of a disqualifying crime in another state and subsequently pardoned by the governor of that state was subject to a Tennessee law requiring payment of “outstanding court costs, restitution, and child support obligations” prior to re-enfranchisement. The lead plaintiff, Ernest Falls, was convicted of involuntary manslaughter in Virginia in 1986 and moved to Tennessee in 2018. Two years later, Falls was “granted clemency in Virginia by then-Governor Ralph Northam,” which reinstated “Falls’ rights of citizenship in Virginia, including his right to vote.”

Northam’s clemency, Falls argued, automatically made him eligible to vote in Tennessee. He cited a Tennessee law that says a person convicted in another state of an offense that “would constitute an infamous crime” in Tennessee may not vote “unless” he “has been pardoned or restored to the rights of citizenship by the governor or other appropriate authority of such other state.” The Tennessee Supreme Court rejected Falls’ argument, saying he still had to meet the additional requirements that Tennessee imposes on people convicted in that state.

That decision quoted statutory language referring to “full rights of citizenship.” But it did not define those rights, and the only references to firearms appeared in a footnote quoting Northam’s grant of clemency. Notably, that document said Northam was restoring Falls’ “right to vote, hold public office, serve on a jury, and to be a notary public,” but not “the ability to ship, transport, possess or receive firearms.” The Tennessee Supreme Court nevertheless described Northam’s clemency as restoring “Mr. Falls’ rights of citizenship.”

Bowie, who thinks Goins’ interpretation of Tennessee law is “totally bogus,” finds his reliance on Falls v. Goins puzzling. “The Supreme Court explicitly says [the decision is] limited to the facts before it,” she says. “Specifically, it’s referring to the situation where somebody gets a conviction in another state, moves to Tennessee, and then restores their voting rights in the state where they used to live.” The court ruled that someone in that situation “still [has] to go through Tennessee’s rights restoration process,” Bowie notes, and the justices “wouldn’t even opine” on the question of what would happen “if he had gotten his rights restored in Virginia before he moved to Tennessee. So it’s extremely narrow.”

Whatever the merits of Goins’ legal interpretation, it highlights the injustice of permanently taking away someone’s Second Amendment rights based on a felony conviction, no matter the nature of the crime or how long ago it was committed. A growing number of federal judges, including Supreme Court Justice Amy Coney Barrett when she served on the U.S. Court of Appeals for the 7th Circuit, have deemed that blanket ban unconstitutional. History “demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote in a 2019 dissent. “But that power extends only to people who are dangerous.”

That case involved a man convicted of mail fraud, which Barrett thought did not justify disarming him for the rest of his life. In the 2022 Supreme Court case New York State Rifle & Pistol Association v. Bruen, Barrett joined the majority in ruling that gun control laws must be “consistent with this Nation’s historical tradition of firearm regulation.” Since then, lower courts have rejected applications of Section 922(g)(1) that they concluded did not meet that test.

Last year, the U.S. Court of Appeals for the 3rd Circuit restored the Second Amendment rights of a Pennsylvania man who had been convicted of food stamp fraud. Although that was a misdemeanor and did not result in any jail time, it triggered Section 922(g)(1) because it was theoretically punishable by up to five years in prison. Applying that precedent last November, a federal judge likewise said it was unconstitutional to take away a man’s gun rights based on a misdemeanor DUI conviction.

Theoretically, such litigation is one option for Tennessee residents who want to be able to vote despite an “infamous crime” conviction, although federal courts may be less receptive in cases involving drug felonies, let alone violent offenses. Another option is seeking a pardon from Tennessee Gov. Bill Lee, which would allow re-enfranchisement even without a “full restoration of citizenship rights” as Goins now understands that phrase. But that is also a long shot: Since taking office in 2019, Lee has granted just 48 pardons: 13 in 2021, 13 in 2022, and 22 last year. Tennessee residents convicted in other states might face better odds, although out-of-state pardons do not necessarily satisfy Tennessee’s requirements, as Falls’ case shows.

The best hope for people in this situation is that Tennessee courts will reject Goins’ interpretation of state law, at least insofar as it requires restoration of federal gun rights. “If somebody goes to court in Tennessee to get their citizenship rights restored,” Bowie says, “the judge can issue an opinion that could say something like, ‘We restore your gun rights under Tennessee law, any federal statutes notwithstanding.’ And then it’s totally possible that the Elections Division could say, ‘OK, that’s good enough.’ It’s just an open question what they’ll do.”

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