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March 13, 2008

Criminal mistakes in analysis of Heller hysteria

With the Supreme Court's oral argument in the Second Amendment Heller case now only a few days away, the lawyer talk about the case is heating up.  Of particular note is this new column from Robert Novak suggesting that the Bush Administration is unsupportive of SG Paul Clement position in Heller.  That column has, in turn, produced additional analysis over at SCOTUSblog and at Volokh.

Sadly, as is all too common in all the buzz to date over Heller and the Second Amendment, none of the analysis considers the criminal justice litigation that the Justice Department justifiably fears if the Supreme Court were to recognize a robust individual right to keep and bear arms.  As I have suggested in a number of prior posts, a major pro-gun-rights ruling in Heller could mean a new (and viable?) constitutional claim raised in every felon-in-possession prosecution and also could mean additional challenges to gun-possession-based sentencing enhancements. 

I believe that fear of defense litigation in federal gun prosecutions best explains why the SG has taken such a tepid position in Heller.  It is also why I really, really, really hope the Justices ask counsel in Heller whether severe felon-in-possession criminal laws could be upheld if the Second Amendment is to be understood to secure an enforceable individual "right of the people to keep and bear Arms."

Some related recent Second Amendment posts:

March 13, 2008 at 06:43 PM | Permalink

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Comments

Is this really an issue? Wouldn't the government need only call gun regulation a civil regulation and thereby bypass the Constitution even under the strict scrutiny standard?

Posted by: George | Mar 13, 2008 7:04:03 PM

Doug, since the Second Amendment has not been held to be applicable to the States, how in the world can the right to own a gun be considered a fundamental right?

I believe in gun rights (I can attest that it's pretty cool to shoot them, having spent some time in the military), and I believe that arming law-abiding people is a good thing, but if a State can ban guns (and I think it is pretty clear that a state could do so under the federal constitution, given the non-incorporation of the Second Amendment), I cannot come to the conclusion that a fundamental right is at stake here.

Posted by: federalist | Mar 13, 2008 7:26:03 PM

PLEASE EXCUSE MY INTERRUPTION: I have a question that is not related to the Heller case.

Is it true that there is a law that allows for a person's conviction to be thrown out if it happen before the person turned 26? Does it apply to the federal courts?

If you know the answer please let me know.

Posted by: EJ | Mar 13, 2008 8:46:31 PM

EJ, start here.

Might it be possible under the Second Chance Act?

Posted by: George | Mar 14, 2008 1:28:58 AM

Thanks George. It was very helpful, however, I barely heard about the law I mentioned, and wanted to know the name.

Posted by: EJ | Mar 14, 2008 2:45:07 PM

I think George makes a good point. This is going to be one of the most heavily parsed decisions to come out of the SC in years. Personally, I think it is unlikely that the SC is going to provide the bright line rule that the NRA wants. To me, I see a Pyhrric victory for the NRA. The justices will uses the language of "individual rights" but then limit those rights to such an extent that the doctrinal "win" means little.

Posted by: Daniel | Mar 14, 2008 10:45:03 PM

George, what do you mean that the Second Amendment hasn't been held to be applicable to the states? I've never heard of such a riduculous suggestion. The Bill of Rights specifically protect the "fundamental rights".

Posted by: Bryan | Mar 15, 2008 4:21:36 PM

Bryan, does that mean that people charged with violations of state criminal law are entitled to indictment by grand jury?

Posted by: federalist | Mar 16, 2008 12:54:39 PM

That the 2nd Amendment has not (yet) been incorporated via the 14th Amendment to be applicable against the states, does not mean that if squarely presented, it would not be. The issue of incorporation is not squarely before the Court here. In Heller, the Court could easily decide that laws the effectively ban handguns go beyond what is constitutionally allowable, leaving the incorporation issue for next term.

Do you really think this is an issue re felony-in-possession prosecutions? States can deprive felons of the right to vote. Why would depriving a felon of the right to possess firearms, however broad or narrow, be any different?

Posted by: James | Mar 17, 2008 2:29:41 AM

The blogger made a couple of the best observations I have yet read about Heller - I got out of the game a good many years ago - now a completely recovered - make that "retired" - lawyer and this issue hadn't occurred to me until just now:

"...as is all too common in all the buzz to date over Heller and the Second Amendment, none of the analysis considers the criminal justice litigation that the Justice Department justifiably fears if the Supreme Court were to recognize a robust individual right to keep and bear arms. As I have suggested in a number of prior posts, a major pro-gun-rights ruling in Heller could mean a new (and viable?) constitutional claim raised in every felon-in-possession prosecution and also could mean additional challenges to gun-possession-based sentencing enhancements.

I believe that fear of defense litigation in federal gun prosecutions best explains why the SG has taken such a tepid position in Heller. It is also why I really, really, really hope the Justices ask counsel in Heller whether severe felon-in-possession criminal laws could be upheld if the Second Amendment is to be understood to secure an enforceable individual "right of the people to keep and bear Arms."

I think that any one of the Supremes with any insight (thus excluding at a minimum Scalia and Thomas) will NOT ask that question - because the answer would not be a good one for the law-and-order crowd unless - unless they ignored precedent and logic as the majority did in Bush v Gore. Anyway, hard cases make bad law, and the only way Heller won't prove the point once again is if the Supremes stay away from the enhancement issue OTHER than to say, gratuitously, that it doesn't apply. That's where I'd bet

Posted by: JL Johnston | Mar 17, 2008 2:27:29 PM

Well, if the "felon in possession" laws weren't so broad based and classist, they might not have a problem would they? As it stands now, a person convicted of aggravated assault is no different than a person convicted of forging a $350 check under federal law. In addition, a person convicted of insider trading is not recognized as a 'felon' under federal statutes.

Posted by: Jay | Mar 17, 2008 3:15:26 PM

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