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Michigan Court Upholds No-Guns-For-Felons State Law

It's common to hear about Second Amendment lawsuits dealing with gun rights. But nearly all state constitutions include similar legal protections, sometimes with language that is more emphatic than the wording in the U.S. Constitution's Bill of Rights.

Take the recent case involving a Michigan man named Ricky Lee Baldwin, convicted by a jury of assault with intent to commit murder and unlawful possession of a firearm during a felony. He allegedly shot his wife in the neck and right ear after she admitted to an affair; a local news report said the 51-year old woman survived.

Federal law, and many state statutes, prohibit previously convicted felons (a category that includes Baldwin) from possessing firearms. In last year's D.C. v. Heller opinion, the U.S. Supreme Court indicated, without explicitly stating, that such a prohibition complies with the Second Amendment.

But what about state constitutions? Michigan's constitution appears unambiguous: It says that "every person has a right to keep and bear arms for the defense of himself and the state."

As you can imagine, Baldwin raised that point in his appeal after entering a conditional guilty plea to the offense of possessing a firearm after previously being convicted of a felony. He argued that the felony-possesion state law violated the Michigan constitution. If that argument succeeded, he'd still to go prison -- but would be able to shave as much as 7 years off of a sentence that would otherwise run from 30 to 59 years.

Although the state constitution includes no exceptions or fine print when saying that "every person" enjoys the right to keep and bear arms, judges have narrowed the scope of that right over time. A 1931 state supreme court case, People v. Brown, upheld the conviction of a man convicted of carrying a billy club in an automobile, concluding: "The statute does not infringe upon the legitimate right of personal or public defense, but is within the reasonable and constitutional exercise of the police power of the state to curb crime."

And a 1980 case, Bay County Concealed Weapons Licensing Board v. Gasta, said the state could revoke its citizens' right to bear concealed arms if the local sheriff filed a complaint: "The existence of the Concealed Weapons Licensing Board reflects the State's legitimate interest in limiting public access to weapons suitable for criminal purposes and confirms the notion that the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power."

Finally, a 1998 case, People v. Green, led to this conclusion about felons, guns, and the Michigan constitution: "A person's right to bear arms under (the Michigan constitution) is not absolute and is subject to the reasonable limitations set forth in (state law) as part of the state's police power."

You can guess what happened in the December 1 ruling from Michigan's court of appeals. The panel cited the previous cases and concluded that the law in question in the case against Baldwin was perfectly constitutional.

The point of this article isn't to say that the Michigan case is rightly or wrongly decided. (Though for non-violent felons like Martha Stewart, the question of lifetime disarmament is more open than you might suspect. C. Kevin Marshall, a former Bush Justice Department attorney who's of counsel to Jones Day in Washington, D.C., raised that argument in a law review article earlier this year titled "Why Can't Martha Stewart Have a Gun?")

Instead, the point is to offer a glimpse of how the legal system works in practice. When faced with a state constitution that says "every person has a right to keep and bear arms," and a felon claiming that right to keep and bear arms, do judges stick to the text, or try to strike a balance between it and the state's power to regulate criminal behavior -- even if it means drawing lines on their own? Michigan's courts, like most others, have repeatedly chosen the latter.

Declan McCullagh is a senior correspondent for He can be reached at and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed. Before becoming a CBS employee, Declan was the chief political correspondent for CNET, a reporter for Time, and Washington bureau chief for Wired.
  • Declan McCullagh On Twitter»

    Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.