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March 11, 2007

Second Amendment, gun enhancements, constitutional doubt and Angelos

I have just read the DC Circuit's blockbuster opinion in Parker (available here), which holds that the District of Columbia's gun control laws violate an individual's Second Amendment rights (first noted here).  As Jeralyn at TalkLeft spotlights here, any fan of individual liberties ought to be a fan of Parker.  And, as Eugene Volokh spotlights here, it will be intriguing to watch how Parker plays out politically in the months ahead.  (I am wondering if any leading Democratic nominee will be smart enough to embrace Parker or if any leading Republican nominee be foolish enough to condemn it.)

Of course, I read Parker with an eye on sentencing issues, particularly wondering what Parker could mean for some sentencing enhancements if courts were to seriously enforce the right of "keeping a handgun in the home" recognized in Parker.  Specifically, in the wake of Parker, defendants facing sentencing enhancements based on having guns in their homes likely can and should raise constitutional objections based on the Second Amendment.  And courts, applying constitutional doubt doctrines, probably should now be more cautious about broad applications of sentencing enhancements based on having guns in the home.

The notable case that came to mind as I thought about these issues is the case of Weldon Angelos (basics here, early commentary here and here).  As I recall, one of 25-year sentence enhancements in the Angelos was premised solely on guns found in Weldon's home.  If Weldon Angelos had an individual Second Amendment right to keep these guns in his home, isn't the 25-year sentence enhancement he endured as a result of exercising this right constitutionally suspect?

UPDATE: The folks at The Volokh Conspiracy have taken up this issue and provide a lot of on-point analysis here and here.  I generally share the view that Second Amendment arguments against gun sentence enhancements still face an uphill battle, but that reality should not prevent counsel from raising these issues (and courts from addressing these issues head-on).

March 11, 2007 at 01:19 PM | Permalink

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» Here we go again: Gun laws in DC from Appellate Law
The DC Circuit, in Parker v. D.C., fresh from deciding that the executive can do whatever it wants to detained foreigners, determines that the 2d amendment inures to individuals, and concludes that the 2d amendment means: In sum, the phrase [Read More]

Tracked on Mar 11, 2007 1:38:24 PM

» Will D.C. Gun Ruling Affect Sentence Enhancements? from The Volokh Conspiracy
At Sentencing Law and Policy, Douglas Berman wonders how Friday's decision by the U.S. Court of Appeals for the D.C. Circuit inval... [Read More]

Tracked on Mar 11, 2007 8:08:05 PM

» The Second Amendment and Sentencing Enhancements: from The Volokh Conspiracy
As Jonathan notes below, Doug Berman asks at Sentencing Law & Policy whether the [Read More]

Tracked on Mar 11, 2007 9:11:04 PM

Comments

This was actually what I had in mind when reading the opinion, although I think in practice the courts will have no problem upholding those enhancements. There was language in the opinion suggesting as much. In any event, I do not think litigation is over in this matter.

Posted by: Alec | Mar 11, 2007 4:38:55 PM

I suggest you take a look at Bob Spitzer's essay on Parker over at HNN http://hnn.us/articles/36395.html
Even by the low standards one expects from law office history this decision must mark a new nadir. The reading of Miller runs counter to 70 years of precedent and 90% of scholarship on the case, including every account of Miller written at the time it was decided.

The use of Anti-Federalist texts to effectively rewrite the Second Amendment as if it were the product of the Pennsylvania Minority, and not the First Congress, takes original meaning originalism into the Twilight Zone and beyond. Actually, a recent OSU dissertation on the origins of the Pennsylvania arms bearing provision makes clear how far off the mark this ruling is from the history

Posted by: saul cornell | Mar 11, 2007 9:24:00 PM

a recent OSU dissertation on the origins of the Pennsylvania arms bearing provision makes clear how far off the mark this ruling is from the history

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