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Last edited Fri Mar 22, 2013, 02:19 PM - Edit history (2)

The problem is what is a Felony? As that word is used in the Federal Gun Control Act of 1968? The Courts have been all over the place on this, but generally a Common Law Felony is included, but some of Felonies created by Statute are not. For example, it was NOT a felony at common law to commit Security Fraud, but many states have made that a felony. A Federal Court could rule that such a felony is not a felony as the word Felony is used in the Gun Control Act of 1968. Thus such a felon could own a firearm (please note I have NOT checked out the exact status of Security Fraud laws, so before anyone convicted of such a crime buys a firearm check with an attorney who practices in that field of law).

Now, a state can also pass a Gun Control Law forbidding Felons from owning guns, even if they are NOT Felons, as the term Felon is used in the Federal Gun Control Act. This is the type of Felons the State Judge is ruling on, someone who is NOT barred by Federal Law, but is Barred by State Law, due to the differences is treatment of the term Felon and Felony.

Under the Common Law a Felon was someone who lost his property to his Misne Lord, a Misdemeanor was someone who did not (i.e. his or her heir kept it). In the 1800s the definitions changed (along with abolishment of forfeiture) to whether you stayed in jail for one year or less (then a Misdemeanor) or more then one year (then a Felony). Since 1900, this divide has blurred, they are misdemeanors that you can served several years in jail for, and some felons get off with a suspended sentence. The names are retains more due to historical reasons then any real difference in treatment (State's have preferred to give set jail periods for individual crimes as oppose to a set time for "Felonies" and another time of "Misdemeanors".

Personally, I believe we should do as Britain has done, abolish these terms, they are becoming more and more meaningless. Force each level of Government to clearly declare WHAT Crimes, if you are convicted of that crime, BANS you from owning a Firearm, not use these old terms that most people (including Lawyers) do NOT know what they mean (and due to that fact becoming meaningless terms).

Side note: Under the Common Law, if someone was convicted of a Felony, the King received his or her property for his own use for one year, then it went to the Felon's Misne Lord (which in most of England was the King, but not always). Treason, which today is considered a Felony, was NOT a Felony under the Common Law, it was TREASON, a separate class of crimes, where the property of the Traitor was forfeit permanently to the King NOT his Misne lord. THis last came up in 1715 in Boston Massachusetts. A wife and her servant conspired to kill her husband. Under the Common Law that could be Murder but also could be the crime of "petit Treason" (Thus the term "High Treason" for Treason against the State). The sentence was the same for both, death, but what happened to the property of the defendant differed and who obtain her property on her execution was why this woman was tried to for the crime of "Petit Treason" not the "Felony" of murder. The Governor of Massachusetts in 1715 was an appointee of the King, and thus upon conviction of Treason (High or Petit) the property of the Defendant reverted to him as the King's agent. If convicted of the "Felony" of Murder, the property went to the Governor for one year, then it reverted to the Colonial Legislature of Massachusetts, which under its Colonial Charter was the "Misne Lord" of Massachusetts. Thus the Governor wanted the Treason Charge NOT the Felony of Murder Charge against these Murderers. i.e. Thus the Governor NOT the Colonial Legislature received the property of the murderers.

In the 1800s most States abolished "Petit Treason" and merged in with Murder since Independence made each state both the "King" and the "Misne Lord" for that state (no matter what charge, the state still obtained the money), then the State abolished forfeiture for most murderers did NOT have any money to forfeit.

The abolition of Forfeiture upon conviction lead to the problem of Children inheriting from their parents, when their murder their parents. Under the Common Law, upon conviction the murder's property, including the property inherited, went to the State for it was both the "Crown" and the "Misne Lord" of all the real property in the State (and while held for Trial, the Court had full use of the Property, not the Defendant). Thus the right that a Child could inherit from a parent their had murdered was NOT a problem under the Common Law (The State ended up with the money upon conviction). It became a problem when the State redefined Murder and the sentence and removed forfeiture as a feature of the law. You then had a situation where Murders could inherit from people their murdered and keep the property. Thus the various State Laws forbidding such inheritance (which leads to another problem, what happens if the person DOES inherit, gives the property BACK to the murders, by direct gift OR by another inheritance? This has occurred, in the trial of Lyle and Erik Menendez case in California saw that happened, the two sons who murdered their parents ended up getting the money via their parent's sister, who gave them the money to pay for their defense. I am sorry, the Common Law Rule was better i.e. leave the murders inherit the property, but upon conviction it becomes the property of the State (and during any trial, held by the State until the trial is over).

While I believe I have shown the Common Law Rule was better, the Rule in the US is conviction of a Felony does NOT bring with it a Forfeiture in the US today, unless there is a separate forfeiture law. Drugs cases tend to have such forfeiture laws, but most crimes do no t. On the hand prior to the mid 1800s and the general rewrite of the Common LAw, forfeiture was the biggest difference between Felonies and Misdemeanors.