In 2011, Lisa Folajtar pled guilty to tax fraud—a felony. In the ensuing years, she served her sentence and paid her fines. But, with a felony on her record, her Second Amendment right to possess firearms was permanently revoked. Her case to restore her right to own a gun now wends its way through the courts, as Folajtar v. Attorney General of the United States, No. 19-1687 (3d Cir. 2020), and puts a classic conflict in the crosshairs: Should people with felony convictions who have served their sentences be able to own firearms?
Often, the three-second response is those with a felony record should never have the right to own guns. Then, when that pesky critical thinking kicks in, distinctions start arising. People convicted of violent crimes—a serial killer, rapist—could never repay their debt to society enough to justify the risk of giving them access to firearms. But maybe those convicted of non-violent crimes—mail fraud, tax evasion—should be able to get their constitutional rights restored.
My attention was piqued with this story because the facts provide a perfect case study for exploring how people can cross ideological divides by finding common ground. The common ground for the conversation about the ability of individuals to own firearms is found in the community and individual goal of being safe. The Second Amendment right to bear arms was rooted in the desire of the citizens of the new country to be able to ensure safety for themselves and others. The second common ground is the general expectation that people who violate the rules and ethical norms of the community need to be punished for/pay the debt to the community for that violation before being welcomed back.
Identifying the conflicting common grounds reveals the values in tension in the situation. Folajtar argues that her debt is paid, and her rights should therefore be restored given that her crime was not a violent crime. The counterargument is that those who have broken the law, if able to arm themselves, would present a threat to community safety that outweighs the individual safety that someone convicted of a felony might gain from possessing a firearm.
As the EthicsGame team uses the Baird Decision Model™ in our training and simulations, we find identifying the values in tension is the most difficult part of the discernment process. One reason for resistance is that people are so attached to the behaviors they believe are appropriate that stating the values neutrally without any presumed solution to the situation at hand is very, very difficult.
After identifying the tension, the next step is to identify the interest groups involved in the problem—the stakeholders. The task is to determine who might be affected by a decision. The temptation is to assume everyone in a particular interest group will harmonize the values in tension the same way. But, as I was gently reminded, people who own firearms hold differences of opinion about how to balance the tension between the ability to own firearms and the abilities of someone convicted of a felony to fully reengage as a member of the community after completing their sentence.
That understanding leads us to the most difficult part of bridging the divide: being willing to have our mind changed. A core error in ethics is believing a single right answer exists for each ethical dilemma. Once a person finds that right answer, they must never deviate from its truths—the value of consistency. However, as Brian Henning reminds us in The Ethics of Creativity, as we apply abstract value concepts to very concrete situations, our understanding of the best way to achieve harmony within the community while respecting the essential humanity of all involved changes based on the context of the problem.
An unseen barrier to changing our minds is that our beliefs about right actions—our personal moral values—are literally embedded in thoughts and feelings. And so, when we are faced with having to change our minds about facts, the meanings of those facts, or the actions that should flow from our world view, we have a high instinctual resistance to that change. This resistance is often felt viscerally—as our gut response to a situation. And thus, we must be willing to embrace humility and try to look at the world in a different way.
A strategy for the conversation is to explore the reasons for different recommended courses of actions before making up our mind. And so, turning to the conversation back to whether people convicted of non-violent felonies should have their ability to own a gun restored, we discover the conversation hinges on beliefs about to what extent people should have to live with the consequences of the choices they made.
Many in the firearms community believe strongly choices should have consequences. Thus, while they advocate for wide abilities of people to own firearms, an initial assumption is that most members of that stakeholder group would come down on the side of imposing permanent restrictions on those who made the choice to commit a felony. Interestingly, the initial assumption is also that many who desire to restrict the ability to own firearms would come down on the side of letting the person own a firearm within the same restrictions as anyone else, because that interest group gives greater emphasis to forgiveness after the debt has been repaid and the subsequent restoration into full prerogatives of citizenship.
Those in the chattering class who comment on court opinions—the actual opinions, concurrent opinions, and dissents—are already reading the tea leaves on how the members of the current Supreme Court will rule when Folajtar reaches them. Those involved in the case and the interest groups filing amicus briefs also have their perspective on the proper value prioritization.
As I began reading articles from unfamiliar sources to figure out the scope of the conversation and talking with people with strong feelings on both sides of the conversation, my understanding of my own core values came into sharper focus. And then as the EthicsGame community began reaching out to those within our various conversation groups, we found more consensus than we thought: the general emerging opinion was that people who had committed a non-violent crime, served their time, and paid their fines should be able to own firearms, if the rest of the requirements are met. Who knew?
And now the question to you—where do you and your conversation partners come down on this ethical dilemma and why? Engaging the conversation with a willingness to listen and learn is the point—and the fun—of the thought exercise.