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June 26, 2008

A quote for all constitutional seasons

Here is a notable quote from a prominent activist troubled by a recent Supreme Court ruling that overturns a piece of crime-fighting legislation:

The [Court's recent] decision ... will most likely embolden criminal defendants, and ideological extremists, to file new legal attacks...  [T]hose attacks can, and must, be successfully resisted in the interest of public safety.

Though I could readily imagine this quote from a legislator troubled by the Kennedy ruling preventing states from enforcing capital child rape laws, in fact it comes from the head of the Brady Campaign complaining about Heller.  Ah, the curse of rights.

June 26, 2008 at 05:27 PM | Permalink

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Interesting that Helmke only argues one side of the gun debate. Helmke conveniently leaves out the many cases were weapons have been used for self defense and the deterent of crime. He is right about one thing, I already have a lawyer to help me regain my firearm rights that have been taken from since in 1986 (felony marijuana charge). I have not re-offended why shouldn't I be afforded the same opportunity to protect my family.

Posted by: felon with no 2A rights | Jun 26, 2008 6:13:20 PM

This is an unworthy thing for the Brady Campaign to be saying.

While I do not share the view that the felon-in-possession statutes are in danger, Heller provides a reasonable basis for suits on the subject to go forward.

I think lawyers' time would be better spent fighting generally applicable and overwrought gun restrictions of the kind Heller struck down, instead of going after the far narrower class of felon-in-possession statutes. But it cannot be said that legal attacks on the latter are frivolous, so I don't get the snarling tone of the Brady Campaign's blurb.

Let the suits go forward. I very much doubt they'll succeed -- indeed I'd bet quite a bit they won't -- but maybe I'll learn something.

Posted by: Bill Otis | Jun 26, 2008 6:18:11 PM

Bill,
I follow your post quite often. I wonder if you will tell me if you think someone with a non violent felony should be able to protect themselves/family in their own home? Help me understand why someone who made a mistake in 1986 should have a life time ban on gun possession.

Posted by: felon with no 2A rights | Jun 26, 2008 6:24:24 PM

felon with no 2A rights:

"I follow your post quite often. I wonder if you will tell me if you think someone with a non violent felony should be able to protect themselves/family in their own home?"

Yes.

"Help me understand why someone who made a mistake in 1986 should have a life time ban on gun possession."

First, while I appreciate your honesty in describing your situation, I don't believe committing felonies is a "mistake." I think people know what they're up to and make decisions about it.

Long ago, in my early years in the USAO, I recommended that the government go along with a person in much your position who wanted a judicial expungement. My then-boss, the United States Attorney, agreed, as did the court. Perhaps you would consider following a similar course, although I am in no position to give you legal advice and am not purporting to do so.

As a general matter, I believe guns should be kept out the hands of dangerous people. It is hard for the law precisely to define what a "dangerous" person is, but drawing the line at felons makes sufficient sense so that I believe the courts will uphold it. This may result in individual instances of injustice, and yours might be one of them. Still, law is about line-drawing, and wherever the line is drawn, there will be cases on just this side or just that side. For example, Congress could grant relief to people in your position by adopting a change in the statute that would permit possession after 20 crime-free years. What that will do is prompt a law suit from someone whose conviction is 19 years old. There is always tension at the margin, and there is always a margin. That just can't be changed.

I know this answer is unlikely to satisfy you, but I am a private citizen now and I no longer have portfolio to speak for any branch of government.

Best of luck to you.

Posted by: Bill Otis | Jun 26, 2008 7:00:33 PM

I've armed myself with a kilo of cocaine and a pound of heroin. Anyone who tries to attack me will get a lethal dose of said drugs thrown in their face.

The gov't better not try to violate my 2nd Amendment rights.

Can't wait for the drugs = arms argument. It should have some merit based on some of the wild, crazy, insane things anti-drug propogandists have said about the dangers of drugs.

Scalia wrote a great opinion, Heller is the 2nd Amendment opinion I've always wanted to see and have as the law of the land. Now this whole "collective rights" bullshit can finally be laid to rest.

Posted by: bruce | Jun 26, 2008 8:24:27 PM

I doubted the attacks on felon in possession laws would be successful, but I am a bit surprised that the Court essentially left the standard of review open. There will be much litigation on this point, as well as incorporation.

Although I don't blame the Brady people for doing this. The conservatives have been hijacking criminal justice for their own aims for so many years, turning the Democratic Party into a mirror image of their hysterical anti-crime squads, that I look forward to the political ads of gang leaders passing out machine guns to their lackeys, with the voiceover "Courtesy of the Bush Supreme Court." That should play real well in the suburbs, along with Columbine-like fear mongering. When it comes to politics, you get what you give.

My own feelings on the legal merits of the decision were mixed, but I thought both arguments were plausible.

Bill:

I don't think Mr. Helmke's statement was directed at criminal defendants or their attorneys. It was directed at politicians and supporters of gun control. And it probably does represent a warning, to that effect. Rhetoric for fundraising purposes. And a good sampling of what we are likely to see in the future.

Posted by: Alec | Jun 26, 2008 9:46:16 PM

Alec:

I seriously doubt that gang leaders who pass out machine guns to their lackeys give two hoots in hell what the Supreme Court says. They're not really into following the latest decisions.

Posted by: Bill Otis | Jun 27, 2008 8:44:08 AM

The fact is that there are a lot of extremists out there when it comes to guns. Here in Virginia there is this group of gun nuts who think that the NRA is way too moderate (most recently they were observed arguing before the General Assembly in the wake of the Virginia Tech shootings that the mentally ill should not be restricting from gun ownership but their favorite activity is to go into bars, restraunts, the Dulles and National Airport parking lots, etc. with unconcealed weapons to demostrate how Virginia law allows pretty much anyone who isn't a felon to carry a nonconcealed weapon almost everywhere (the Washington Metropolitian Airports Authority actually had to tell their officers that yes under Virginia law people are allowed to sit in the airport parking lots with guns in response to these nutcases) - they also were lobbying very hard against a law that would bar people from carrying guns into a day care center)).

So yes, there are some real nuts out there. And it is also true that Scalia explicitly rejected the extreme gun nut position that any sort of government gun control violates the 2nd Amendment and that background checks or registration is one step away from jack booted government thugs taking away their firearms (not that that was ever a likely possibility anyway). In fact, part of me thinks that the majority opinion's main tone is "yes, me and my buddies can have guns to go out and blow away some ducks or have armed bodyguards to protect us - and we even think its okay for a trusted government employee like Mr. Heller to have a gun at home, but we will make sure that the people who we feel we need guns to protect ourselves from [felons, the mentally ill, poor people] can't get them."

Posted by: Zack | Jun 27, 2008 10:03:12 AM

First, while I appreciate your honesty in describing your situation, I don't believe committing felonies is a "mistake." I think people know what they're up to and make decisions about it.

Just because something was intentional doesn't mean it was not a mistake. And not all felonies require a mens rea of intent - some can be founded on a reckless state of mind.

And while Scalia's majority opinion in Heller (which I fully support) is chock full of examples of him claiming "no state would ever enforce a criminal law against someone in such a situation" (regarding violating a law in self defense - from jaywalking to get away from dangerous criminals trying to attack you to firing a gun on January 1, in violation of statute, to defend against armed hooligans), anyone who has had the slightest experience with criminal law would know Scalia is talking out of his ass with such examples - most prosecutors would have no qualms about prosecuting someone who violated a law knowing the defendant did so in self-defense. Many times there will be a statute that bars the defendant from even claiming self defense or necessity. But even if there is not, such prosecutors will charge the defendant, minimize the self-defense or say it is irrelevant, and rely on judges like Scalia to uphold the convictions. They're just enforcing the law as it's written. Just upholding the law. Gotta enforce the law. Can't have lawlessness. If the law is unfair the legislature should fix it. Can't do anything about it. Might be unfair that the defendant had to have a felony conviction, but he did break the law, self-defense notwithstanding. Conviction affirmed.

It's the only incidental aspect of the Heller opinion that really pisses me off. "No state would enforce this law in such a circumstance" ... oh really Scalia?

Posted by: bruce | Jun 28, 2008 12:37:36 AM

Bill:

That wasn't my point. The (obvious?) implication is that there are no effective restraints on them now...courtesy of Bush's SCOTUS. Again, from the perspective of a political ad.

Posted by: Alec | Jun 28, 2008 1:44:00 AM

Alec:

"The (obvious?) implication is that there are no effective restraints on [gang leaders who pass out machine guns] now...courtesy of Bush's SCOTUS. Again, from the perspective of a political ad."

Two points. First, there were no effective restraints on these gang leaders BEFORE the Heller ruling. If gang leaders were inclined to obey the law, whether announced by the Supreme Court or Congress, they wouldn't be in the gang business to begin with.

Second, Bush's having appointed two sitting justices doesn't make it Bush's SCOTUS any more than Clinton's having appointed two sitting justices makes it Clinton's SCOTUS. This is especially true in the context of Heller, where it is likely (although we'll never know for sure) that Rehnquist and O'Connor would have voted exactly as Roberts and Alito did.

Posted by: Bill Otis | Jun 28, 2008 8:44:24 AM

I have absolutely no doubt that Heller would have turned out exactly the same way had Rehnquist and O'Connor been on the Court. Maybe Rehnquist himself would have written the opinion instead of Scalia, but it would have had the same result.

This is the only case about which I'm confident enough to make this assertion.

Posted by: bruce | Jun 28, 2008 12:08:51 PM

Zack wrote: "In fact, part of me thinks that the majority opinion's main tone is 'yes, me and my buddies can have guns to go out and blow away some ducks or have armed bodyguards to protect us - and we even think its okay for a trusted government employee like Mr. Heller to have a gun at home, but we will make sure that the people who we feel we need guns to protect ourselves from [felons, the mentally ill, poor people] can't get them.'"

Bingo. Like so many things, it goes back to the Civil Rights Act of 1964 and the end of Jim Crow and official white intimidation of blacks. No longer able to control blacks through overtly racist lawmaking and law enforcement, fearful whites look to guns as their security blankets for a new age. (The felon-in-possession laws themselves are indirect legal attempts to control blacks; indeed, as Douglas A. Blackmon showed in his book, the entire criminal justice system, at least in the South, was practically dedicated to furthering white control over blacks.)

Posted by: DK | Jun 28, 2008 5:13:08 PM

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