February 15, 2008
Different rhetoric about individual gun rights
This AP reports that "Barack Obama said Friday that the country must do 'whatever it takes' to eradicate gun violence following a campus shooting in his home state, but he believes in an individual's right to bear arms": "I think there is an individual right to bear arms, but it's subject to commonsense regulation" like background checks, he said during a news conference.
Meanwhile, I am pleased to report that at least one lawyer has built on some of my musings about the potential for Second Amendment arguments in felon-in-possession cases. This lawyer's motion to dismiss such a case based on the Second Amendment can be downloaded below, and here are snippets:
The rights contained in the Second Amendment are “preferred rights” because, first and foremost, they are inextricably intertwined with the right of self-defense....
The statute, under which the Defendant is now charged, is 18 U.S.C. Sec. 922(g)(1) is a broad and sweeping statute. Arguably, it punishes the status of being a felon; see, Robinson v. California, 370 U.S. 660 (1962)(held, it is a denial of due process to criminalize a person’s status). Inarguably, the statute makes no distinction between violent crimes and non-violent crimes or street crimes and white collar crimes. The Defendant, in the case at bar, finds himself precisely in the same classification as Michael Millikin, Michael Vick, Martha Stewart, I. Lewis “Scooter” Libby, Jr., Gregory Reyes, William Lerach, and a whole host of others...
Measured by Second Amendment principles grounded in a fundamental, individual right to keep and bear arms, in the sanctity of one’s own home, for purposes of self-defense, the statute under which the Defendant has been charged is overbroad and fatally flawed. Count IV of the Indictment should be dismissed.
February 15, 2008 at 11:53 PM | Permalink
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» Gun Rights and Felon In Possession Cases from drugcrimedefender
OK-its not a drug case but I ran across this article at Sentencing Law and Policy that references a creative attempt to overcome a felon-in-possession charge by arguing that non-violent offenses should not be proper predicates to such a charge. [Read More]
Tracked on Feb 20, 2008 2:24:14 AM
Doug, I can give you a nomination for a case to pursue on the felon in possession issue if Heller is decided recognizing an individual right.
A former client was convicted of three drug cases in state court on the same day. He pulled his time, had his rights restored and under state law at the time he was restored, he could possess a gun at his home or place of business.
Much later, I can't remember the number of years, a search of his business found a gun. He was immune from prosecution in state court because the conduct was legal. but he was charged in federal court, enhanced by ACCA, and received a fifteen year sentence. All for doing something he thought was legal, and was legal under state law.
I tried to get him out on a Lambert claim of failure to require actual notice of commission of a passive crime, but to no avail.
Posted by: bruce cunningham | Feb 16, 2008 1:08:30 PM
Bruce, I'm not sure I follow what you're saying. If the restored his right to own a gun, federal law does the same.
Posted by: Confused | Feb 16, 2008 4:46:37 PM
Confused, I'm confused. Under state law he was entitled to possess a gun at his business. Under federal law he couldn't possess a gun anywhere. So he got hammered under federal law for doing something legal under state law. I argued under Lambert it was a passive crime and he had to have actual notice that what he was doing was wrong.
Posted by: bruce cunningham | Feb 16, 2008 10:47:04 PM