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March 18, 2008
Get ready for a Second Amendment rumble, defense attorneys
In what I view to be good news for federal criminal defense attorneys, it appears from today's oral argument that the Supreme Court may be headed toward recognizing an individual right to armed self-defense protected by the Second Amendment. Here is how Lyle Denniston at SCOTUSblog sees matters after the Heller oral argument:
The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear was what kind of gun that would entail, and thus what kind of limitations government cut put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense.
As I have highlighted in lots of prior posts (some of which are linked below), if individuals are recognized to have an enforceable right to have a gun for self-defense in their home, I think there could be real constitutional problems with broad federal laws that prohibit all felons from possessing any guns in any settings AND severe sentencing laws that might unduly chill an individual's efforts to keep guns safely in her home.
Some prior posts on Heller and the Second Amendment's potential impact on criminal justice realities:
March 18, 2008 at 12:44 PM | Permalink
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» The Gun Case from Crime and Consequences
The big news today in the press and the blogs is the argument in the D.C. gun case, District of Columbia v. Heller. The transcript is available on the Supreme Court website, and there is audio at CSPAN. CJLF did... [Read More]
Tracked on Mar 18, 2008 5:42:38 PM
» The Gun Case from Crime and Consequences
The big news today in the press and the blogs is the argument in the D.C. gun case, District of Columbia v. Heller. The transcript is available on the Supreme Court website, and there is audio at CSPAN. CJLF did... [Read More]
Tracked on Mar 18, 2008 7:25:35 PM
Comments
Having only heard the last 3rd so far, about the last 30 minutes, it appears Heller is arguing for a constitutional amendment that goes something like this: "The right to keep and bear arms, militia or not, shall not be unreasonably infringed."
Anyone else get that out of the arguments?
Posted by: George | Mar 18, 2008 2:15:06 PM
From the transcript:
JUSTICE GINSBURG: There is a lot of talk about standards and stop words like strict scrutiny. Does it make a practical difference whether we take your standard or the strict scrutiny that was in the D.C. Circuit's opinion? And specifically there is a whole panoply of Federal laws restricting gun possession. Would any of them be jeopardized under your standard? And the same question with the District scrutiny, does it make any difference?
GENERAL CLEMENT: In our view it makes a world of difference, Justice Ginsburg, because we certainly take the position, as we have since consistently since 2001, that the Federal firearm statutes can be defended as constitutional, and that would be consistent with this kind of intermediate scrutiny standard that we propose. If you apply strict scrutiny, I think that the result would be quite different, unfortunately.
pp. 44-45 of the .pdf
George, it's an awkwardly phrased amendment and your question is useless. Heller would argue that the DC government is arguing for a constitutional amendment that reads "the right of members of a state militia to keep and bear arms in connection with their militia duties shall not be infringed."
Posted by: | Mar 18, 2008 3:19:20 PM
Voting is a fundamental right, and states can take away the right to vote from felons. So I'm not sure that felon-in-possession laws would be in trouble post-Heller. Is owning a gun more like voting or more like the free exercise of religion (a right I assume cannot be taken away from felons)?
Posted by: DM | Mar 18, 2008 3:40:09 PM
The right to vote, unlike the right to bear arms, is not found in the constitution.
Posted by: | Mar 18, 2008 3:50:34 PM
Doesn't amendment XIX prevent states from denying the right to vote to rapists? "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex"
Posted by: S.cotus | Mar 18, 2008 4:01:42 PM
Since the right to bear arms is NOT applied to the states, as yet, it cannot be a fundamental right. I don't think the DC ban is constitutional, since the DC local gov is a creature of the federal government, and the Second Amendment clearly applies. But a fundamental right? I just don't see how you get there under the current state of the law.
Posted by: federalist | Mar 18, 2008 4:10:28 PM
It is hard to see the felon is possession laws falling no matter what - the argument for barring felons from owning guns is much stronger than the argument to bar them from voting.
Its also hard to see laws barring use of a firearm in commission of a felony falling since those laws bar specific acts and no one will argue that people have the right to bear arms to murder or rob people.
The extreme sentencing enhancements/mandatory minimums for holding guns during say a drug crime on the other hand, are likely to be on pretty shaky ground if the 2nd Amendment is an individual right. Of course, before defense attorneys get too excited, they should remember that hate crime laws have been upheld despite the fact that unlike the Second Amendment, the First Amendment's language is clear and makes no mention of regulations.
Fact is, its hard to imagine this Supreme Court doing much that will upset the cart against the prosecution and in favor of criminal defendants. A total ban is likely to be struck down, but chances are registration and licensing processing will be allowed. And that will be how most of the criminal laws will survive because suddenly, with the threat of confiscation of firearms no longer present, the law abiding gun rights crowd may well decide that registration is the best option for them to have guns but keep the laws which put others in jail because its doubtful that the NRA membership is going to be too upset if a drug dealer gets a longer sentence because they are carrying a gun. My guess that once the 2nd Amendment is recognized as an individual right (assuming the Supreme Court rules that way), the states and federal government will find ways which they can punish some people for having guns and that the Court will allow it.
Posted by: Zack | Mar 18, 2008 4:10:37 PM
Geezzzzzz - lets all get excited that even more people might get the chance to kill someone, with the Supreme Court's blessing. I mean, there aren't nearly enough guns floating around now, are there!
Posted by: peter | Mar 18, 2008 4:30:38 PM
peter, your post is stupidity masquerading as snark--the issue is not how many guns are "floating around", but whether law-abiding people will get to have them. People who want the chance to kill someone, i.e., criminals, already can get firearms.
I, for one, feel that we are safer if law-abiding people are allowed to keep and bear arms.
Posted by: federalist | Mar 18, 2008 4:46:53 PM
federalist -
I can see you lying in bed at night, gun in hand, just waiting to take a pop at someone who breaks into your house. Has the thought never entered your head that the likelihood of the transgressor carrying a gun increases with the threat within? And consequently the chances of injury and death? And if yours is the one safely locked up, who is more likely to suffer the injury or death? You have a weird sense of what is safe. This is another case where common-sense is seemingly being sacrificed to some anarchic sense of loyalty to historical words that can have no relevance to conditions today.
Posted by: peter | Mar 18, 2008 5:21:36 PM
3:19:20 PM, that is not the gist of what I heard. It was mostly about self-defense. The point is that Heller as the petitioner is calling for an amendment to the constitution and agrees that it should no longer read "shall not be infringed" but instead shall read "shall not be unreasonably infringed" or "shall be reasonably infringed."
The point is, by changing "shall not" without a constitutional amendment, Heller himself wants "judicial activism" while at the same time throwing federalism to the wind. In short, conservatives what everything they so often condemn.
Posted by: George | Mar 18, 2008 5:33:05 PM
Would someone like to guess how this ruling would affect someone like me who was convicted of a non violent felony marijuana possession in 1986. Will I be able to hunt or keep a firearm in my home. This is if there is a favorable ruling.
Posted by: Gary | Mar 18, 2008 5:37:54 PM
Gary, lawyers could maybe guess better, but my guess is a flat out no. This won't help you at all. Counsel for Heller's argument in a nutshell is "let's amend the constitution to regulate them, not me."
So, not unless the laws are changed.
Posted by: George | Mar 18, 2008 5:46:12 PM
peter, i make good dime, so I protect my children with an alarm system and do not have a gun in the house
but, were I to choose to have a gun, rest assured that I wouldn't have it in my bed--but it would be accessible, and I would have zero problems shooting to kill any intruder
Where people have guns, there are not a lot of home invasions. And where law-abiding people kill a criminal, there's one less criminal in the world--a good result.
Posted by: federalist | Mar 18, 2008 5:53:22 PM
Well said federalist. I feel the same way but in my case I would not legally be able to defend myself with a firearm. I am the convicted felon mentioned above who would have to wait until the police arrived at my very rural county home in North Carolina!!
Posted by: Gary | Mar 18, 2008 6:06:09 PM
http://gunlaws.com/
D.C. v. Heller Eyewitness - Pregame Report
FOR IMMEDIATE RELEASEFull contact info at end DATELINE: Washington, D.C. 3/17/08 24 Hours Prior to Heller Case
by Alan Korwin, Co-Author Supreme Court Gun Cases
More people are on line in front of the U.S. Supreme Court for the D.C.gun ban case tomorrow than seats are available, and the temperature ishovering above freezing, but that's not stopping them. Bob Blackmer and I were the first to arrive, Sunday night about 5 p.m.,answering the big question of -- Would two nights in advance be enough-- aside from did we have endurance to pull that off. A few moments later, Jason and Dan arrived from Pennsylvania withsleeping bags and the same question in mind -- would they be in time forthe biggest Second Amendment case in the nation's history, and, yes,they were. With no one else around, and the Sup. Ct. police officerpumped for all the info he might have (precious little), Bob and I left for our hotel, confident that we would be in time in the a.m., and Jason and Dan became numbers one and two in line, a distinction the mediawould dwell on the next day. (Reporters kept zeroing in on Jason sincehe was number one in line, and fortunately, he was articulate, a polisci grad, not the bubba the media so often isolates as a "typical"example.) Because the line formed two nights in advance (kind of), and because local ABC-TV carried that news (with images)and bloggers spread it,people began arriving first at midnight, and then at the crack of dawn,panicked about access. Bob awoke in the hotel and departed in time toarrive well before 8 a.m., making him 7th, and I ran around looking forpropane for his porta-heater (the airline allowed the heater but not thefuel). I was fortunate to have a reserved seat, so it didn't matter thatI arrived at 10 a.m., and that didn't matter either, since I was now#16. I was the only person, the whole day, schmoozing on the line,running errands for people, enjoying the atmosphere, but with a reserved seat and a bed waiting for me at night. People had full blown lounge chairs, sleeping bags, blankets, food... aregular shanty town developed and as police had advised, the line self regulated. Physical position was a non-issue, since everyone knew their place, and Sarah, a Harvard law student, took it on herself to start alist and gather everyone's arrival time and position number. People milled around at will, confident they would not lose their cherishedplace in line. It was a community. Almost everyone was a law student, almost no one would qualify as a "gunnie" (well, maybe a small handful) but nearly everyone was on theside of Heller, advocating for a strong Second Amendment. The conversations were electric, a bunch of well educated, thoughtful,intelligent people self selected for a historic moment. When was the last time you saw a line of people hanging out reading legal briefs? The promise was for 50 seats for the public, but the Marsahll's officewas clear to me that this number could change, and would only be known in the morning, giving a distinct feeling it would shrink as"dignitaries" decided to attend at the last minute. By 2:30 p.m. Monday, today, the day before the case, 32 people were inline, neatly numbered thanks to Sarah (and everyone in line ahead ofthem). The lucky (maybe) 50th person arrived at 4:45 p.m., and folks continued to arrive and queue up, hoping against hope for a greater number of seats, or line abandoners. No paid place holders were apparent. The most novel legal theories were: -- The case could be decided on standing, with the Court concluding Heller didn't really have any after all, and the case falling apart onthose grounds (highly unlikely, but it shook up conversations); -- The Court would parse "keep" and "bear," finding an individualright, but applying strict scurtiny to "keep" and rational basisstandard of review for "bear," effectively gutting the Second Amendment; -- A decision narrower than everyone expects would get a nine to zeroaffirmation of an individual right (a seven-to-two split got a lot ofvoice); -- The Solicitor General would recant his position (calling for reduced scrutiny and a remand of the case), artfully saying that was a mistake or oversight, an extremely unlikely but appealing (to some) possibility that would get Clements out of supposed hot water and be talked about,well, forever; -- No one expects anything but an individual right finding, but thelevel of scrutiny for any law anywhere was up for grabs; -- Obviously, no one has a clue, but you get the idea of what was goingon in the cold, windy, sleep deprived, hard scrabble concrete world ofHellertown in front of the Court. As for me, I'm sun burned, exhausted, under nourished, but at least in ahotel lobby, getting ready for what sleep I can and an early start towhat will be an amazing day tomorrow. I'll relieve Bob so he can use the Court restroom to shuck his thermals, freshen up, stash his goods in the Court lockers, grab some chow in the Court cafeteria (great food, lowlow subsidized prices), and join the rabble in the cheap seatsupstairs. Written without adequate review or a spell checker, I reserve the rightto change any of this... will attempt a swift review of the orals assoon after as I can muster. Alan. alan@gunlaws.comBloomfield Press, Phoenix602-996-4020http://www.gunlaws.com
Posted by: stiff | Mar 18, 2008 6:21:10 PM
Well, Gary, if it makes you feel better, I believe that some felons, after a stretch of law-abidingness, should be allowed to bear arms.
Posted by: federalist | Mar 18, 2008 6:21:40 PM
Gary, have you looked into relief under 18 USC 925(c)?
Posted by: Kent Scheidegger | Mar 18, 2008 6:32:44 PM
Thank you federalist it does make me feel better. It has been 22 years since that crime and i have accomplished a lot as far as family, education, and employment. It has not been easy carrying a ball and chain around my ankle(felony).
Posted by: Gary | Mar 18, 2008 6:44:43 PM
Kent I have tried to apply to ATF to get firearm priviledges restored but I was informed that congress is no longer funding the back ground checks for convicted felons. I am not sure this is what you are referring to.
Posted by: Gary | Mar 18, 2008 6:51:18 PM
Gary, federalist
I'm happy to know that your lives are totally unaffected by your inability to own, or choice not to keep, a gun in your home. Any sense of deprivation is entirely within your minds, and meanwhile you and your families are safer for it. As federalist has determined for himself - there are better and safer alternatives. To encourage others to think there are not does society harm, and perpetuates the sense of fear that drives the sentencing regimes discussed, and largely abhorred for excess, on this blog.
Posted by: peter | Mar 19, 2008 2:58:24 AM
"Well, Gary, if it makes you feel better, I believe that some felons, after a stretch of law-abidingness, should be allowed to bear arms."
This appears to be soft on crime. These people are dangerous and they might re-offend. Your lack of concern for the victims of future crimes is telling of where your sympathies lie.
Posted by: S.cotus | Mar 19, 2008 6:30:29 AM
S.cotus are you serious? You are way off base. You are assuming that all convicted felons are dangerous? There are probably hundreds of thousands of convicted non violent felons in this nation. My argument is for non violent felons that have a long period of time not re-offending. I happen to be one of these people.
Posted by: Gary | Mar 19, 2008 7:29:24 AM
Gary, Since you are a convicted felon, I don't think you are really in a position to tell me that I am off-base. I figured since Federalist has gone soft (usually he wants to put everyone in jail or have the state kill them), I would pick up the slack.
So, here goes:
Society made a mistake by allowing people that later became felons to be born. We should not make that mistake again by allowing them to have guns.
Posted by: S.cotus | Mar 19, 2008 8:35:06 AM
S.cotus
Your offensive retort calls for an apology.
Posted by: peter | Mar 19, 2008 9:27:37 AM
