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Pardoned Felon Sues State Over Right To Bear Arms

September 25, 2011

Pardoned Felon Sues State Over Right To Bear Arms

Second Amendment advocates have been “up in arms” over a recent case that has resulted in a conflict between the constitutional supremacy of the pardon and the Tennessee lawmakers responsible for statutorily restricting the rights of felons. The case involves David Scott Blackwell, a Franklin man who received a felony drug possession in 1989 when he sold cocaine to an undercover police officer while living in Atlanta. As a result of his arrest, Blackwell would go on to serve five years in prison in addition to probation, which he would successfully complete. While incarcerated, he completed a bachelor’s degree in nursing, as well as petitioning the Georgia Board of Pardons and Paroles. On August 11, 2003, Blackwell was granted a full pardon, a portion of which read “All civil and political rights, including the right to receive, possess, or transport in commerce a firearm … are hereby restored.” However, shortly after moving to Tennessee he encountered a problem.
Blackwell wanted to take his son hunting one weekend and was denied while trying to purchase a .22 rifle for his son. Two years of unsuccessful communication with the Tennessee Bureau of Investigation and the Attorney General’s office led Blackwell to file a lawsuit against the state of Tennessee, Governor Phil Bredesen, and Attorney General Bob Cooper. Blackwell argues that his right to bear arms was restored upon his reception of the Georgia pardon. Also supporting Blackwell’s position are various Second Amendment Advocates, who have historically refrained from voicing support for the rights of some felons to possess firearms. More notably, the Tennessee Firearms Association showed their support for Blackwell by filing a brief in the lawsuit, the first time the Association has done so in 16 years. Nashville attorney John Harris, who also serves as the volunteer executive director for the Tennessee Firearms Association, illustrated the significant issue being considered. “This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?”
Although Blackwell’s position was dismissed by the Davidson County Chancery Court, the case has been appealed and is under consideration by the Tennessee Court of Appeals. In preparation on the trial, Blackwell has retained the counsel ofDavid Raybin, a distinguished member of the Nashville-based law firm Raybin & Weissman, P.C. “The pardon restores constitutional rights, that’s what a pardon does,” stressed Raybin. “Therefore, it restores his right to a firearm. That’s it, in its simplest terms.” Moreover, Raybin maintains that the power to pardon and reinstate a felon’s rights is preserved in a state’s constitution. Furthermore, when a state statute conflicts with such a right, the constitution should prevail.
Conversely, the state insists that the challenged statutory authority, which makes it unlawful for a felon to possess a firearm, does not exempt pardoned felons whose rights have been restored. Likewise, the Tennessee Attorney General’s Office stated that a correlation between guns and drugs makes it reasonable for Tennessee legislators to expect the possibility of felony drug offenders, pardoned or not, to misuse firearms in the future. Another supporting factor for the state is a similar case tried in 2002, where the Tennessee Supreme Court held that a violent felon whose rights had been restored was forbidden to possess a firearm. Attorneys for the state asserted that, “the constitutional right to possess a firearm is not absolute.”
However, a recent U.S. Supreme Court Decision, District of Columbia et al. v. Heller, may prove to be more essential to resolving this case. In Heller, the Court ruled that the Second Amendment declares an individual, constitutional right to firearm possession for all citizens. Raybin asserts that a felon’s Second Amendment rights are included in the restoration of their civil rights. Similarly, Raybin believes the Blackwell case will mark the first use of the Heller decision in Tennessee. The Tennessee Court of Appeals ruling on Blackwell is expected sometime mid-October.
U.S. Constitution: Second Amendment
District of Columbia et al. v. Heller, 554 U.S. 570 (2008)
Verified Complaint for Declaratory Relief: Blackwell Motion in Chancery Court Brief of the State
Posted By Eston Vance Whiteside