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February 13, 2008

Do any Second Amendment amici oppose extreme gun crime sentencing?

I am impressed, though not especially surprised, that nearly 50 amicus briefs have been filed in the Supreme Court in support of an individual right to keep and bear arms under the Second Amendment.  SCOTUSblog here links to all these friendly briefs.

I wonder if any of these groups will help in my planned efforts to attack severe gun sentences under the Second Amendment if (when?) the Supreme Court recognizes that the this amendment provides an individual and enforceable right.  As I have noted in a number of prior posts, I think laws prohibiting all felon from ever keeping a firearm and lengthy mandatory sentencing terms for simply keeping a gun under certain circumstances can (and should) be subject to a constitutional attack if the Supreme Court takes an individual view of the Second Amendment in Heller.

Some related posts on the Heller Second Amendment case:

February 13, 2008 at 09:34 AM | Permalink

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I highly doubt you'll find such amici help. Felons lose their constitutional right to vote, so why must they retain the right to own guns? Both are fundamental individual rights, and both, by history and tradition, are utterly forfeitable upon commission of a felony. Every bottom-side amicus brief I've read in Heller (though I've only read five or six of them) has properly made this concession.

As for "excessive" sentencing: if a particular gun crime is constitutionally proscribable under the 2A, then the length of the sentence is immaterial (as a 2A matter). A constitutional amendment (other than the 8A under current doctrine) does not regulate the length of punishment if punishment itself is permissible under the amendment. Nor does the virtually non-existent 8A scrutiny increase when the crime implicates a substantive constitutional amendment only in the remote sense that it's a matter of doctrine rather than common sense that the amendment doesn't proscribe the crime. For example, can you cite a single case holding that an "excessive" sentence for obscenity or "fighting words" violations violated the 1A (or even that the 8A analysis should be altered in the deft's favor for those crimes)?

Posted by: Anonymous | Feb 13, 2008 10:16:44 AM

Anon,

There is no Constitutional right to vote. There is a Constitutional right to have your vote counted equally. And there is a mess of Supreme Court cases on when elections must be held - given a background norm of elections. But nowhere in the Constitution is there a right to vote analogous to the 2d Amendment. So the suggestion that felony vs. voting analysis is immediately useful in the felony vs. gun context is not straightforward.

Posted by: Tim S | Feb 13, 2008 11:25:09 AM

In The Words We Live By, Linda R. Monk writes:

"After the Civil War, Congress sought to protect the rights of newly freed slaves. Southern legislatures, dominated by former Confederates, had enacted "Black Codes" to regulate every aspect of the lives of freedmen -- forbidding them to vote, own firearms, or travel freely. Congress passed the Fourteenth Amendment in 1866 as the cornerstone to its plan for Reconstruction." (Amendment XIV, p 214.)

There I go with a half-baked book report again. So it goes. Anonymous suggests, without any proof, that "Felons lose their constitutional right to vote, so why must they retain the right to own guns? Both are fundamental individual rights, and both, by history and tradition, are utterly forfeitable upon commission of a felony."

Even if that is true, that felons rather than Blacks in particular, traditionally lost their right to own guns, the presumption is that all felons might be too dangerous to own guns.

For a fascinating legal discussion of presumption, a California legislative analysis by Kathleen Ragan is an interesting read. AB 1197 (Aghazarian) - As Amended: April 10, 2007 was a bill to allow property owners or managers the right to evict or refuse to rent to sex offenders because doing so is "presumed to protect a
person at risk." The legislature of course ignored the analysis and passed the bill, but it does offer some interesting legal insights into the inherent dangers of legislative presumption. Instead of the "Black Codes" we now have the "Them Codes" which can more easily include Blacks or anyone of the lesser religion or gender or what have you. The analysis also offers interesting battle lines of defense in the legal fight. Though framed of course under California law, the principles must be universal.

Posted by: George | Feb 13, 2008 11:29:20 AM

Tim dealt with the falacy of the voting/gun analogy, Anonymous, so I'll focus on the First Amendment point. Though it is not my field, I recall that there is a "chilling" doctrine in the First Amendment that limits certain state or even private actions (like tort suits) that might unduly chill First Amendment protections. I am wondering if such a chilling notion might all be applied in the Second Amendment context.

To provide another analogy, the Justices think that the 5th Amendment right to remain silent is so important than a prosecutor cannot even comment on the exercise of that right at a trial Seems like we often broadly enforce the rights we really like to make sure people can exercise these rights in a meaningful way.

I understand that lots of people do not like gun rights. But anyone who does favor individual gun rights, as I do, needs to think about how much criminal punishment in the name of "regulation" is going to be allowed to infringe and impinge upon such rights.

Posted by: Doug B. | Feb 13, 2008 12:28:16 PM

What's always shocked my conscience is the ban on possessing firearms for people under felony indictment. They have not had a hearing, they have not been giving due process, they have not had a chance to speak or argue their case (unless they were called before the grand jury and spoke). A group of people has, sua sponte and ex parte, found that probable cause exists that a person committed a felony. How can that be enough procedural and substantive due process to take away someone's right to to anything, let alone possess something?

I don't know that a firmly recognized individual right will have any bearing on the length of sentences imposed for gun crimes, but it should invalidate the felony indictment gun possession prohibition. I think that is unconstitutional on due process grounds, regardless of the 2nd amendment. Always have.

Posted by: bruce | Feb 13, 2008 12:56:31 PM

Felons in Louisiana can legally own firearms. Article 1 section 20 of the Louisiana constitution provides that “[f]ull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.” However, under La. R.S. 14:95.1, it remains unlawful for a convicted felon to possess a firearm until ten years after the date of completion of his sentence. When that ten year statutory limitation expires, such a felon may own a firearm and is precluded from criminal prosecution under federal law 18 U.S.C 922 (g) (1). See U.S. v. Dupaquier, 74 F.3d 615 (5th Cir. 1996).

Posted by: Paul | Feb 13, 2008 2:24:39 PM

Tim and Doug B:

I don't think either of your responses work. As for the voting/gun analogy, I was using shorthand. While Tim is certainly correct that there's no freestanding right to vote in the Constitution, the Court has repeatedly held that classifications governing who can exercise the franchise are subject to strict scrutiny because they burden the fundamental interest in voting. Nevertheless, the Ct has upheld felon disenfranchisement based on the well-established history and tradition of such laws. More generally, regardless of the doctrinal buckets we use to analyze these questions, neither of you provided any response to my basic point: there can be no dispute that the common law right to bear arms did not foreclose restricting felons from bearing arms. So that should be the end of the analysis, just as it was the end of the analysis for felon disenfranchisement (and just as it was the end, to take one of many examples, for legislative prayer in Marsh v. Chambers, notwithstanding the fact that pretty much every Establishment Clause doctrinal test suggests that governmental payments to legislative chaplains should be unconstitutional.) Now, perhaps if you're one of those who believe in living constitutions, you don't care that felons had no right to bear arms at the time of the ratification of the 2A. But Doug was hoping to get support from the Heller amici, and they most certainly don't support living constitutionalism (since it's DC and its amici that are trying to argue that the 2A has no application in our modern society, and Heller and his amici who are relying on the common law understanding of the right to bear arms). I don't want to get into an originalism debate here; my point is solely that there's no reason to think that Heller's amici would support a "right" that has no bearing in the historical understanding of the right to bear arms.

As for the "excessive" sentencing point: Doug's invocation of chilling doctrine doesn't make any sense. The premise of the issue is that the underlying crime is properly punishable under the 2A, but that the sentence imposed is allegedly "excessive." In other words, it's OK to tack on six months to a sentence because a gun was used or somehow involved or present at the time of the crime, but it's not OK to take on 20 years mandatorily. If the scope of the prohibition is clear and definite, then there's no chill regardless of whether the sentence is six months or 20 years. If the scope of the prohibition is ambiguous, then there's a chilling and vagueness problem regardless of the sentence imposed. And, to repeat, we're assuming that there's no constitutional problem w/ imposing some level of enhanced punishment on the criminal for the use of the firearm. (There might well be cases where that hypothesis is false, but those cases don't involve "excessive" sentences; they are instances where the 2A forbids outright the enhancement.) I still fail to see how a clear, constitutional prohibition on having a gun involved in a crime can somehow be rendered substantively unconstitutional based on the magnitude of the sentence imposed. That, as far as I'm aware, is a completely unprecedented theory of constitutional rights. As I suggested before, I would be shocked if anyone had ever successfully argued that a 30 year sentence for obscenity violated the 1A, and that the 1A (not the 8A) required a lower sentence, but permitted the imposition of some sentence.

As I thought I had made clear in my previous post, I am a strong supporter of Heller's position. But that doesn't change the fact that constitutional rights are informed by history and tradition, and that there's simply no historical support for felons retaining the right to bear arms, or for criminals getting a "fair" sentence when they violate a perfectly constitutional prohibition on using firearms during the commission of a criminal offense.

Posted by: Anonymous | Feb 13, 2008 2:53:00 PM

Doug, as always , you are drawing attention to serious issues, such as excessive sentences for possession of firearm by felon. The fellow I represent who had 11 shotguns in a gun cabinet in his bedroom has been hit with 11 "habitual felon " charges on top and faces thousands of months in prison. Felon in possession today is like income tax invasion during the Capone days. A way of stacking up huge prison time. Felon in Possession coupled with Armed career criminal act will get someone at least fifteen years.

I continue to maintain that Felon in Possession is not a crime, it is contempt of court for which the def can be punished but not used to trigger other recidivist enhancements.

An essential element of Felon in Possession is the "felon" part. Or the prior conviction. Which by definition makes it a recidivist offense. 200 years of Supreme Court jurisprudence says recidivist offenses pass double jeopardy muster because they describe status not crimes.

When someone is convicted of a felony certain conditions or consequences attach. Such as not possessing a gun. So a violation of that condition is not a new crime, it is a failure to comply with the original judgment, or basically contempt.

Thoughts anyone?

bruce cunningham

Posted by: bruce cunningham | Feb 13, 2008 3:57:32 PM

When someone is convicted of a felony certain conditions or consequences attach. Such as not possessing a gun. So a violation of that condition is not a new crime, it is a failure to comply with the original judgment, or basically contempt.

Thoughts anyone?

You seem to assume that "contempt" and "freestanding crime" are mutually exclusive categories. I don't think they necessarily are. It reminds me a bit of probation conditions that require a probationer to refrain from activity that's illegal anyway. If the probationer commits the illegal activity, he can be separately charged with a crime and his probation can be revoked.

It seems entirely feasible to deal with felons in possession through the contempt process, but I don't think it follows that that's required.

Posted by: | Feb 13, 2008 4:23:25 PM

That's creative, Bruce, but it won't fly. Not possessing a gun is not a requirement of the original sentence but rather a collateral consequence of it. There are many acts that are legal for some people and crimes for others. Juveniles can't drink alcohol. Noncitizens can't vote. Men can't use the ladies' room (and may be guilty of disorderly conduct in some places if they do). Felons possessing firearms fall into the same category of an otherwise legal act by a person in a particular status for whom that act is not allowed. Even though the status derives from a prior judgment, it is still a crime and not a noncompliance with that prior judgment.

Posted by: Kent Scheidegger | Feb 13, 2008 6:29:27 PM

Anonymous wrote: "More generally, regardless of the doctrinal buckets we use to analyze these questions, neither of you provided any response to my basic point: there can be no dispute that the common law right to bear arms did not foreclose restricting felons from bearing arms. So that should be the end of the analysis, just as it was the end of the analysis for felon disenfranchisement (and just as it was the end, to take one of many examples, for legislative prayer in Marsh v. Chambers, notwithstanding the fact that pretty much every Establishment Clause doctrinal test suggests that governmental payments to legislative chaplains should be unconstitutional.) Now, perhaps if you're one of those who believe in living constitutions, you don't care that felons had no right to bear arms at the time of the ratification of the 2A. But Doug was hoping to get support from the Heller amici, and they most certainly don't support living constitutionalism (since it's DC and its amici that are trying to argue that the 2A has no application in our modern society, and Heller and his amici who are relying on the common law understanding of the right to bear arms). I don't want to get into an originalism debate here; my point is solely that there's no reason to think that Heller's amici would support a "right" that has no bearing in the historical understanding of the right to bear arms."

Except there is no common law right of individuals to bear arms, nor was that remotely the intent of the founders with respect to the 2d. I realize you aren't asking to get into that, and I agree that getting support for Doug's propositions from these amici would not be likely. But I want to make clear that's just because they are hypocrites, particularly the denial of "living constitutionalism," since that is precisely what they are advocating for.

I am amused--considering their rights-based advocacy of the 2d Amendment--at the lengths to which they will go to effectively deny the 2d Amendment right they are seeking to "protect." If the 2d Amendment protects an individual's right to bear arms (where it hasn't before), then it becomes a fundamental right under the living constitutionalism approach they have taken. It then becomes necessary for the government to justify a denial of that right to any class by a compelling government interest narrowly tailored to its ends. (In other words, you can't have your cake and eat it too.) Laws making across-the-board denials of the right to felons will not pass muster and will have to be unconstitutional.

I am fine with the Court recognizing an individual 2d Amendment right. But if they do, it will have to apply as other express rights in the Bill of Rights do. In other words, we will not be able to carve out exceptions for the 2d Amendment because of our irrational fear of black people (the group for which "felons" is but a thin veil).

Posted by: DK | Feb 13, 2008 6:58:06 PM

"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c. 2 and is indeed a public allowance, and under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

Sir William Blackstone, Commentaries on the Laws of England (1765).

The William and Mary statute cited is the original Bill of Rights.

Posted by: Kent Scheidegger | Feb 13, 2008 8:12:14 PM

Does the fact that the Second Amendment has not been held to apply to the states factor into the discussion?

Posted by: federalist | Feb 13, 2008 9:11:02 PM

All felons cannot and should not be treated the same when it comes to possessing firearms.There use to be a mechanism that a felon could apply to the ATF to have their gun rights restored if the ATF approved. Since 1992 our congress has stopped funding the ATF to do these checks. If you apply to the ATF to get your gun rights restored today you will receive a letter that states there is no funding to do a back ground check on the applicant. How come I don't hear anyone supporting a way that would allow people who want to follow the a law, a way that would lawfully allow them to own a firearm? Especially if their offense is one of a non violent nature!

Posted by: Gary Holt | Feb 14, 2008 9:03:56 AM

All felons cannot and should not be treated the same when it comes to possessing firearms.There use to be a mechanism that a felon could apply to the ATF to have their gun rights restored if the ATF approved. Since 1992 our congress has stopped funding the ATF to do these checks. If you apply to the ATF to get your gun rights restored today you will receive a letter that states there is no funding to do a back ground check on the applicant. How come I don't hear anyone supporting a way that would allow people who want to follow the a law, a way that would lawfully allow them to own a firearm? Especially if their offense is one of a non violent nature!

I wonder what if cost for them to send that letter? Probably about as much to do a back ground check.

Posted by: Paul | Feb 14, 2008 11:39:10 AM

to the person who said contempt and a crime are not mutually exclusive, how do you reconcile that with US v Dixon? Dixon said if a person is found in contempt and punished, and the contemptuous act is the commission of a crime, the double jeopardy clause prohibits the prosecution for the offense after punishment for the contempt.

bruce cunningham

Posted by: bruce cunningham | Feb 15, 2008 7:47:33 PM

Contempt can be a crime, but a court doesn't have perpetual jurisdiction over someone it's entered a judgment of felony conviction against - only until that person has finished serving his/her sentence (including any probation and parole and supervised release). So, if the terms of that judgment were that they not possess a firearm, it can't be a contempt once the sentence is served.

Also, why do we assume courts can take away whatever rights they want? If a court said, as part of a felony conviction, a person can no longer observe christianity, people would have a problem with that (even though I think getting rid of religion serves valid penalogical purposes, though most see it the other way). Which rights are okay for a court to take away and which rights are not, presuming adequate notice was given.

Posted by: bruce | Feb 16, 2008 4:55:06 AM

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