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March 18, 2008

Imagining post-Heller federal felon-in-possession litigation

I want to unpack a little more fully the basis for my post-Heller argument post, titled "Get ready for a Second Amendment rumble, defense attorneys."  That post was largely inspired by the fact that, as Lyle Denniston puts it here, expected Heller swing voter "Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense."  As I suggested here yesterday, the impact of Heller on federal felon-in-possession prosecutions could be significant if an enforceable Second Amendment right is conceptually premised on a robust right of domestic self-defense.

To explicate my instincts here, consider how this op-ed from Robert Levy, a catalyst for the Heller litigation, concludes:

At root, the Heller case is simple. It's about self-defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary.  The Second Amendment to the Constitution was intended to safeguard that right.  Banning handguns outright is unconstitutional.

As federal criminal law buffs know well, 18 U.S.C. 922(g) categorically prohibits any persons who has ever been "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to ever at any time or for any reason "possess... any firearm or ammunition."  In short, 922(g) makes it a federal crime for any person who has ever been convicted of any felony to ever possess any firearm (insider or outside homes), and this blanket federal ban on all felon gun possession is punishable with up to 10 years of imprisonment.

But when someone is convicted of a single non-violent felony — say someone named Libby convicted of lying under oath or named Snoop convicted on a drug charge or named Martha convicted of obstruction of justice — that person would not seem to completely and forever forfeit the (natural?) right of domestic self-defense.  Thus, if we get a Kennedy-esque self-defense-focused ruling in Heller, at least some felons can and should hope to be covered by whatever individual rights get recognized in Heller. (Indeed, persons with a felony records are probably more likely than non-felons to live in dangerous communities and to get less-than-adequate police protection, and thus felons may genuinely need the protection of a Second Amendment right of domestic self-defense a lot more than non-felons.)

Does this mean that a Kennedy-esque self-defense-focused ruling in Heller will lead to a ruling that 18 U.S.C. 922(g) is categorically unconstitutional?  Absolutely not.  But does this mean that a Kennedy-esque self-defense-focused ruling in Heller will lead to a lot of new Second Amendment litigation in the context of felon-in-possession prosecutions.  Absolutely.  And that is the reason why, in my view, Solicitor General Paul Clement has been so unsolicitous of a broad Second Amendment ruling in Heller.

UPDATE:  Kent writing here at C&C about Heller explains why the CJLF did not file a brief in the case.  Reading between the lines of the post, I surmise that Kent agrees that a very broad Second Amendment ruling could raise new legal questions about "the authority of the government to punish more severely people who use guns to commit crimes and to bar possession of guns by convicted felons."

March 18, 2008 at 06:23 PM | Permalink

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Sex offenders,whose pictures are plastered all over the place, should especially have the right to self-defense. Unless convicted of a violent sex offense, they should be the first in line to succeed on an as-applied challenge.

Posted by: | Mar 18, 2008 7:03:32 PM

Both Clement and Gura, the two individual rights advocates, explicitly stated that the historical pedigree of prohibitions on felons possessing firearms was sufficient justification for upholding such bans. And the Chief made quite clear that his preferred route of resolving this case is to say that this ban is nothing like the bans that have historical pedigrees. He will almost certainly use the felon-in-possession ban as the counterpoint, since it's one of the few clear prohibitions that not a single oral advocate before the ct claimed was even debatably unconstitutional. And that will be the end of any challenge to 922(g).

The only way out would be to argue that there are less serious felonies these days than there were back in 1789. But, even assuming that's true (and I have no idea whether it is), there's no way any judge would buy that argument. It would require replacing the simple, ancient ban on all felonies with some unprincipled balancing test to determine which felonies are "really serious," a test that the Ct's 8A proportionality jurisprudence has already revealed is utterly incapable of principled application.

Posted by: Anonymous | Mar 18, 2008 9:49:10 PM

Anonymous is right and it was argued to that result intentionally. If felons were aloud in the militia at the founding, everyone who argued and submitted briefs would intentionally leave that out. We also know that there were likely some who smoked pot in the militia since smoking it was legal. It was much more difficult to become a felon then. Now, one really not even be criminal but be simply too rebellious, like our founders, to be excluded from 2nd Amendment protection. This is a judicial activist attempt to amend the constitution without an amendment.

Posted by: George | Mar 19, 2008 2:16:25 AM

Good points, Anonymous, but this is where the (strong?) possibility of a Kennedy-esque self-defense-focused ruling in Heller could become so significant.

Perhaps Kennedy et al. will focus on historical pedigrees rather than domestic self-defense in the Heller opinion, which would make 922(g) attacks a lot harder (though still not impossible). But, if there is any mention at all of a (natural?) right of self-defense in the home, more than a felons prosecuted for guns in their home will have a basis to press a constitutional defense (OR some felons seeking to protect themselves might have a basis for seeking a declaratory judgment in a 1983 class action).

Again, I am not contending that felons will always or even sometimes prevail in this litigation. But I am contending that, if the 2d A is grounded in a self-defense rationale, there could be a lot of interesting lower court litigation of these issues in criminal cases.

Posted by: Doug B. | Mar 19, 2008 7:23:05 AM

The problem Doug, is that even assuming argumendo that a majority of the Supreme Court writes a right to self defense into the Constitution that it does not necessarily follow that one needs a hand gun or a gun at all to defend themselves. Given that there are other alternatives - including long guns (most people actually believe that shot guns are more effective for self defense anyway because they are visible and thus more likely to result in the intruder (even though the inherient improbability of the armed intruder looking to kill scenario should be obvious given that such cases are extremely rare) surrending without firing a shot, burglar alarms, large dogs, or even keeping a light on at night. All of those (other than long guns) are a legitimate defense of home option even for convicted felons.

Secondly, given that Kennedy's self defense at home position may well be as much based on a right to privacy in the house (based on the Third and Fourth Amendments), the other justices, even those who see the Second Amendment as conferring individual rights may not be likely to go for it - especially since the original intent of the Second Amendment was to limit the federal government, so states may well be given wide lattitute for gun control.

Third, its likely that even with the individual rights and self defense scenario that the Court will decide that a licensing scheme will be okay (remember that while you have the right to petition the government for grievances and assembly, you generally must get a permit to exercise it) - simply ban felons from getting a license, and nothing will change at all. As I mentioned in the last thread, once the threat of confiscation is gone, the NRA members are likely to embrace registration as a way for them to have guns (and be able to recover them if stolen since guns are frequently a target of theives) but to keep the guns out of the hands of criminals.

Posted by: Zack | Mar 19, 2008 10:38:37 AM

One does not even have to be a felon in order for 922 to prohibit owning a handgun in the home. See 922(g)(9).

Posted by: DEJ | Mar 19, 2008 12:49:48 PM

Alabama's CONSTITUTION OF 1868

ARTICLE X.

MILITIA.

Section 1. All able-bodied male inhabitants of this state, between the ages of eighteen years and forty-five years, who are citizens of the United States, or who have declared their intention to become citizens of the United States, shall be liable to military duty in the militia of this state; but all citizens of any denomination whatever, who, from scruples of conscience, may be averse to bearing arms, shall be exempt therefrom upon such conditions as may be prescribed by law.

----------

That found with a quick Google search. Can anyone point to a constitution that excludes felons in the militia?

Why aren't people here, who should know the Constitution best, outraged at the covert attempt to amend it? That the subject is guns does not matter.

Posted by: George | Mar 20, 2008 6:50:09 PM

I believe that felons should be able to own guns under certain circumstances. The punishment should fit the crime so to speak, a person convicted of a violent crime should not have their gun rights restored. A person convicted of selling marijuana, or a person convicted of perjury, should be able to have those rights restored, provided they complete certain steps to having them restored. With that said, I believe privacy rights of felons should be decided on their crime, In that a person convicted of selling marijuana probably shouldn't be working in a pharmacy, a person convicted of larceny, probably shouldn't be working in a bank. I don't feel that employers should have complete access to ones record, only portions relating to that particular field that the person is applying for.

These simple changes would make it possible for a felon to find a decent job after he has served his time and it should keep him out of trouble. I don't know if the government realizes or not but when they keep a person down, he is going to do whatever is needed to survive including returning to a life of crime.

If a person wants a gun, he will find it, and more than likely use it.. So having a complete ban on guns for felons is not really serving a good purpose.

Posted by: Student | Apr 4, 2008 4:08:21 PM

I believe that felons should be able to own guns under certain circumstances. The punishment should fit the crime so to speak, a person convicted of a violent crime should not have their gun rights restored. A person convicted of selling marijuana, or a person convicted of perjury, should be able to have those rights restored, provided they complete certain steps to having them restored. With that said, I believe privacy rights of felons should be decided on their crime, In that a person convicted of selling marijuana probably shouldn't be working in a pharmacy, a person convicted of larceny, probably shouldn't be working in a bank. I don't feel that employers should have complete access to ones record, only portions relating to that particular field that the person is applying for.

These simple changes would make it possible for a felon to find a decent job after he has served his time and it should keep him out of trouble. I don't know if the government realizes or not but when they keep a person down, he is going to do whatever is needed to survive including returning to a life of crime.

If a person wants a gun, he will find it, and more than likely use it.. So having a complete ban on guns for felons is not really serving a good purpose.

Posted by: Student | Apr 4, 2008 4:09:47 PM

Why is it undesirable for someone convicted of a "1014 violation" making a false statement on a loan application; prohibited from ever having a gun anyplace or anytime? The state of Texas has a law that says anyone convicted of a violent felony cannot have a gun outside of their home.

It seems the ones who wrote the laws of Texas were more sensible about who should be permitted to return to a normal life and those who should never have a firearm. Of course, the current federal law supersedes the state law making this provision inapplicable.

This blanket prohibition of firearms is used as a tool for ATF to arrest those whom they please. There used to be a Relief of Disability process that would cause ATF to investigate any felon who petitions for a restoration of their gun rights. Normally, if a person was convicted of a white collar type crime, had returned to a productive life and was working to improve their self; this relief was granted. However, the democrat congress under the first Clinton's term of office cut off funding for these ATF investigations that resulted in the shutdown of the relief process.

Maybe this ruling might cause this funding to be restored so that law abiding former felons can at least have a chance to petition for restoration of the right to have a firearm with which to protect themselves and family.


Posted by: businessman | Jun 27, 2008 3:02:38 AM

Hello, all. I am a 30 year old male living in an urban area. I have a 5 year old daughter, a loving and supportive wife, and yes, I am a felon. I have been convicted of selling marijuana twice, and possession of stolen property once. All of these crimes were by-products of my being homeless at the time. After my mother passed away from cancer when I was 17 years old, I left home. I ended up in San Francisco, sleeping in parks and doorways. Family was less than supportive, and had their own lives to tend to. I bounced from the streets to semi-disinterested relatives, including my father, for a couple of years. Making money was, obviously, very difficult during these times. Selling marijuana on the street provided me with a few dollars here and there, although the wisdom of the "five dollar felony", as I have heard it called, is questionable indeed. When you are hungry, you are hungry, though! Eventually you get arrested doing these things, and I was no exception. Over a period of two years, I was convicted of selling Marijuana twice, and after someone gave me a watch in exchange for some marijuana, which turned out to be stolen property, I was arrested and convicted of felony possession of stolen property. Just so I don't ramble too much, I will tie this post up, and get to my point: I am a convicted felon. I am now a productive member of society, working in sales in a corporate enviornment. I have a family to protect. I live in an urban area where shootings and robberies are known to happen, if infrequently. I feel I should have the right to protect my family, and use lethal force if neccessary. I own a shotgun, and handgun, both illegally. I would rather use them to defend the lives of my family, than to not have that option available, regardless of the potential legal issues that could arise. Tell me I am Wrong.

Posted by: Erik Appleton | Jun 28, 2008 1:18:29 PM

HOW IS IT THAT LAW MAKERS SAME LAW BREAKERS .NOT CANCELING THEM SELVES OUT. FELON'S ARE STILL HUMAN BEINGS HOW CAN YOU PUNISH SOME AND NOT GIVE A CHANCE TO BE FORGIVEN . THE PEOPLE WHO PASSED THIS LAW MUST OF WANTED TO EXECUTE FELONS BECAUSE THAT IS THE OUT COME .THING IS THEIR STILL WALKING AROUND WITH NO WHERE TO GO AND NO MEANS OF SURVIVAL.WHICH WOULD MAKE THE GOVERMENT THEIR SLAVE OWNERS. I HOPE TO GOD THE SAME WOULD HAPPEN WITH THESE LAW MAKER LET'S START PRAYING THEIR WHOLE LIFE NO , ANYONE WOULD FORGIVE THEM A TASTE OF THEIR OWN MEDICINE PEOPLE PRAY AND I DO MEAN PRAY THEY NEED TO FEEL WHAT IT IS LIKE . REFER TO YOUR BIBLES EVERY FIRST OF THE MONTH SOON AS YOU RISE IN THE MORNING .

Posted by: AREYALLSTILLPREDJUDICE | Dec 28, 2008 10:36:17 PM

I'm just a citizen. It is my opinion that anybody who is let out of prison ought to have ALL rights returned to them, they ought to be able to carry a gun if they feel a need to. And, if it is believed that a prisoner will most likely commit a violent assault on another, such that he ought not to have a gun or any other weapon, then he/she ought not to be allowed out of prison. My preference is to live among decent people. The idea of letting dangerous people loose on the streets, and then supposedly making us safe by abolishing guns, is just purely insane in my opinion. In the first place, any such law isn't going to prevent a thug from having a gun, in the second place the thug might prefer the use of a knife, and in the third place everybody else is hampered in the defense of their existence.

Posted by: Vera Cranor | Apr 5, 2009 2:32:58 AM

You bring up a great point, if you have a single, non-violent felony, it will be hard to get a gun legally. Even if you went to try to buy a TASER C2, they do background checks & won't give you the code to unlock it. So your choices are limited to pepper sprays & stun guns, or if you buy a gun for self defense directly from a person.

I am not looking forward to Sotomayer, or whatever her name is, getting appointed to the Supreme court, as this issue should long be settled... It's our God given rights to own a lethal weapon.

Posted by: Taser C2 | Jun 20, 2009 11:42:52 PM

its not the gun that kills and rob,its the person.a killer will kill you with a pencil. they made the amendment for Americans..i have gun charges,selling and transport.i enjoy guns and saftey.......but can't own any...give me a break!!!!!

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Posted by: חלקי חילוף לרכב בירושלים | Jan 3, 2011 8:32:32 AM

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