May 15, 2008
Yet another federal sentence prompting Second Amendment questions
I continue to see new Second Amendment questions in federal cases in light of Justice Kennedy's suggestion during the Heller oral argument that the Second Amendment may protect the right of homeowners to have a gun in their house for self-protection. Consider, for example, a curious (and troublesome) new ruling from the Eighth Circuit in US v. Cole, No. 07-2593 (8th Cir. May 15, 2008) (available here).
The Eighth Circuit opinion is Cole is a bit opaque in affirming the sentences of a husband and wife convicted federal gun crimes. Here is what is clear: "Robert Cole and Linda Gilbert, husband and wife, were convicted of possessing an unregistered firearm, [and] Mr. Cole was also convicted of being a felon and a drug user in possession of firearms." And here is the especially telling Second Amendment angle: "Ms. Gilbert possessed all three weapons [in the couple's bedroom and she] told the police that she had [them] to protect her family in light of the unsolved murder of her son." It does not seem that this claim of gun possession for personal protection was even disputed --- though, of course, the federal government did not have to contest this claim of gun possession for personal protection in the home in order to get both husband and wife convicted of federal gun crimes.
Notably, though affirming their sentences over various sentencing objections, the Eighth Circuit never expressly states what sentences were given to Mr. Cole and Ms. Gilbert for their gun possession in this case. I have a feeling that both husband and wife got substantial prison terms, which heighten my Second Amendment worries in this kind of case.
Some related posts on other notable federal gun cases:
- Hunting, pardons and a Second Amendment claim?
- SCOTUS takes new gun case ... is this a Heller tea leaf?
May 15, 2008 at 05:16 PM | Permalink
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Usually when I read a decision, I come away saying to myself, "Of course. That makes sense." In this case, I came away feeling that the prosecutors, the court below and the court of appeals had conspired in a serious miscarriage of justice. [Yeah, I get that these were probably drug-dealing, drug-infested dirtbags, but even the unsavory deserve fair treatment on crimes on which they are actually charged.]
There is no indication that the Second Amendment was raised in the court below. I know nothing about post conviction habeas corpus, but is there a possibility that Heller will provide a remedy to these folks?
Posted by: Conservatarian | May 15, 2008 6:41:28 PM
The district court opinions are reported at 496 FSupp2d 1001 and 497 FSupp2d 958.
Posted by: Principus Maximus | May 15, 2008 7:56:15 PM
Even the sentencing opinions don't give the actual sentences imposed -- only that they were consistent with the advisory guidelines (151-188 months for Cole, 87-108 months for Gilbert).
Posted by: NewFedClerk | May 16, 2008 8:21:58 AM
Cole: 188 months. Gilbert: 108 months.
Posted by: Booker fan | May 16, 2008 12:04:40 PM