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June 26, 2008

Certain post-Heller uncertainty: lots of lower court Second Amendment litigation

As regular readers know, I have predicted lots of lower court litigation would follow Heller if the Supreme Court recognized an enforceable individual Second Amendment right.  Of course, that is what Heller recognizes, and all the broad language highlighted in this post provides plenty of fodder for would-be litigants eager to safeguard their gun rights.  (As I explained here, the Hayes case already taken up by the Justices is just one example of a case in which a serious new commitment to enforceable individual Second Amendment rights could and should complicate debates over statutory interpretation and the application of existing federal gun laws.)

In comments here and here on prior Heller posts today, commentors have started to spotlight laws that now seem vulnerable to constitutional attack on Second Amendment grounds.  In an effort to bring a bit more order to this discussion, I would be grateful if readers would in the comments to this post provide specific cites to specific federal (or state) criminal or sentencing laws that can and should immediately be constitutionally questioned on Second Amendment grounds in light of Heller.  Thanks!

June 26, 2008 at 01:04 PM | Permalink

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18 U.S.C 922 (g) (1) should be ammended now so that non violent felons, who have not reoffended for a specific amount of time from the completion of their last senctence, can enjoy the now confirmed second ammendment right. 18 U.S.C. 921 (a) (20) already goes a long way in restoring to felons the right to bare arms. It basicaly exempts convictions that have been set a side, expunged, pardoned or for which civil rights have been restored and many states do all these including restoring the right to own a gun. But even still this law does not protect some felons who where convicted in jurisdictions that do not restore gun rights or provide acts of forgiveness outline in 921 (a) (20) but are rehabilited and are law abiding citizens.

Posted by: Paul | Jun 26, 2008 1:55:38 PM

Let me respectfully suggest that securing gun rights for the tiny fraction of the population who are previously convicted felons is less important than securing them for the huge majority who aren't.

AFTER taking on the surely forthcoming attempts in gun control jurisdictions to creatively re-impose the broad restrictions done in by today's opinion, THEN there will be time enough to worry about the felon-in-possession statutes.

Posted by: Bill Otis | Jun 26, 2008 2:20:03 PM

Let me respectfully suggest that securing gun rights for the tiny fraction of the population who are previously convicted felons is less important than securing them for the huge majority who aren't.

Well we are now talking about a constitutional right and denying a tiny minority a constitution right isn't to be taken so lighty. This nation after all has a history of denying a tiny minority of fundamental contitution rights. I'm not for giving dangerous people guns but certain non violent felons who have demonstrated that they are not likely to reoffend shouldn't be second in line behind other Americans for a chance to enjoy a constitutional right.

Posted by: Paul | Jun 26, 2008 2:49:32 PM

Uh, Bill, you know, there's lots of lawyers out there and so we can actually litigate different issues that touch upon the same subject at the exact same time!

Posted by: | Jun 26, 2008 2:51:58 PM

I'm a defense attorney, but I won't pretend that this is an area of expertise. But in Oregon (assuming the incorporation case law is reversed, as some Scotusblog commentators think is likely), I would be inclined to challenge parts of this statute:

166.250 Unlawful possession of firearms. (1) [A] person commits the crime of unlawful possession of a firearm if the person knowingly:

(a) Carries any firearm concealed upon the person;

(b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle; or

(c) Possesses a firearm and:

(A) Is under 18 years of age;


Posted by: Ryan S | Jun 26, 2008 2:54:15 PM

As a prosecutor, I expect to see the gun laws in Ohio challenged after Heller. I'll fully admit I'm not an expert in constitutional law, but aren't most, if not all, constitutional rights subject to govermental limitation. When those limitations are challanged, aren't they then evaluated with varying levels of scrutiny as to the government's reasons and justifications for the restriction. In that light, I fail to see how restrictions on felons possessing firearms are much different than restrictions such as those on the right to free speech, or exceptions to the warrant requirement in the fourth amendment which courts have found to be constitutional.

Posted by: Keith B. | Jun 26, 2008 3:21:48 PM

Keith, you're absolutely correct, and that's why Scalia's opinion is so embarrassing and incomplete. He simply asserts the DC law fails under any standard the court has applied to individual rights, and completely and shamefully fails to run through any analysis purporting to show how the law fails under any particular standard.

In a single footnote (#27), Scalia does reject rational-basis review, claiming it is not used for individual rights (but I think he's wrong -- equal protection class of one cases use RB).

Breyer shreds him on this point of failing to select & apply a standard. Breyer also thinks rational-basis review could apply (and allow the law to stand). Moreover, Breyer suggests that a balancing test is proper. Scalia derisively claims that is unprecedented, but then absolutely fails to counter Breyer's several examples of individual constitutional rights for which the Court employs a balancing test: commercial speech, government employee speech (Pickering), due process (Matthews v Eldridge -- hello!!), election law, etc.

Scalia did a really poor job in this opinion. It's a shockingly poor piece of adjudication.

Posted by: Reader | Jun 26, 2008 3:40:41 PM

2:51:58 PM:

"Uh, Bill, you know, there's lots of lawyers out there and so we can actually litigate different issues that touch upon the same subject at the exact same time!"

You're preaching to the choir, my man. For example, on the subject of whether a prisoner was being held in violation of the Constitution because (a) his trial lawyer was asleep/drunk/in a conspiracy with the prosecution (pick one or all), or (b) the TV in his cell wasn't big enough, or (c) the light bulb in his cell was only 75 watts rather than 100 watts (I'm not making this up), I would have to answer all these differnt issues, from different defendants, at the ssme time. This was on top of stuff that WASN'T a joke.

The point of my post was that what bears first claim on our concern are the rights of the great majority who are not felons. Many things can be litigated at the same time, sure, but not everything can be the most important.

Posted by: Bill Otis | Jun 26, 2008 3:59:22 PM

Bill, you should take a job with one of those "Tort Reform" groups. You'd be great. You sound just like them -- constantly repeating and distorting the nature of lawsuits. They love mocking the McDonald's coffee case, but typically know nothing about the facts (like the severe, severe burns she suffered).

Likewise, I am sure you can point to a case in which a prisoner complained about the TV in the joint. But not very many. I'm a clerk (albeit at the appellate level, so I don't see a ton of prisoner cases), but I have plenty of friends clerking at the district court, and they assure me that they are not overrun by frivolous claims of the sort that you are demagoguing.

Get a new song -- repeating this one-note complaint about TVs & conspiracies is getting old.

Posted by: Reader | Jun 26, 2008 4:04:05 PM

I wouldn't say that the court is overrun by those claims, but frivolous prisoner lawsuits sure keep our pro se staff attorneys in business. That's not to say that I think they are a significant strain on resources, but they definitely can be a pain and time consuming.

Posted by: NewFedClerk | Jun 26, 2008 4:24:01 PM

I'm not for giving dangerous people guns but certain non violent felons who have demonstrated that they are not likely to reoffend shouldn't be second in line behind other Americans for a chance to enjoy a constitutional right.


Thanks Paul for the post. I was convicted of a felony in 1986(marijuana) have not re-offended. I live in a rural area and have had my home broken into twice. I agree that non violent felons should be able to defend themselves at the very least in their homes.

Posted by: BS | Jun 26, 2008 4:26:45 PM

Reader:

"Bill, you should take a job with one of those 'Tort Reform' groups. You'd be great. You sound just like them -- constantly repeating and distorting the nature of lawsuits. They love mocking the McDonald's coffee case, but typically know nothing about the facts (like the severe, severe burns she suffered)."

Please give the citation to a single case that I have distorted. Since unlike you I use my real name here, looking up my cases won't be hard, and I assume an appellate clerk would know how to do it in a jiffy.

"Likewise, I am sure you can point to a case in which a prisoner complained about the TV in the joint."

That would seem to be a concession that my description of the case was NOT a distortion. But I won't preempt your showing me one case -- just one -- that backs up your charge.

"But not very many."

Where did I say there were very many?

"I'm a clerk (albeit at the appellate level, so I don't see a ton of prisoner cases), but I have plenty of friends clerking at the district court, and they assure me that they are not overrun by frivolous claims of the sort that you are demagoguing."

Where did I say the lower courts or any courts are overrun with suits of this kind? But if a point be made of it, why should courts be assaulted with ANY frivolous suits, with so many serious ones awaiting initial adjudication?

"Get a new song -- repeating this one-note complaint about TVs & conspiracies is getting old."

Would you believe I don't take orders from people in their twenties? Clerks sometimes confuse themselves with judges. This is something to be avoided. If you haven't learned this, you will.

Not that your complaint has merit in any event. I have been posting on this site for months and have mentioned these cases twice. If you want to find something that's getting old, you might recur to DK, who has said over and over that supporters of the death penalty are monsters, murderers and racists. I hadn't noticed that you expressed any trouble with his repetition of that false and malicious line. But if you did, tell me where, and I'll apologize for my error.

Of course you might share his view for all I know. But even if you do, it's still been repeated more often than what you claim is getting "old" from me. So where's your consternation?

Posted by: Bill Otis | Jun 26, 2008 4:47:43 PM

I think two Federal statutes may be at most risk post-Heller:

1. I think the most likely target for a successful attack might be Congress' block on BATF restoration of rights per 18 U.S.C. §925(c). The prohibition on carrying out an activity specifically authorized by law seems to fall within the "arbitrary and capricious" licensing denial dicta of the majority opinion. A sympathetic plaintiff would be most likely to highlight the issue (e.g., a senior citizen ex-Marine who's lived a clean life since a marijuana conviction 40 years ago, or one of Martha Stewart's fellow travelers in the white collar crime world). IMHO, this would be an easier first step than a direct frontal assault on 922(g)(1) felon rights for several reasons, including (a) the relief system is legally authorized, was available in the past, but has been blocked in recent years; (b) calling into question part of 922(g) could put at risk other parts of the statute that have at least as much public and political support (e.g., illegal aliens; mental defectives in a post-Virginia Tech environment).

2. The other possible Federal statute that may be on thin ice is 18 U.S.C. §922(o), but I'm less confident that this provision is at significant risk. Justice Scalia was clearly trying to signal that the machinegun regulatory scheme of the 1934 National Firearms Act should survive a Second Amendment challenge, presumably under whatever part of Miller is still good law. 922(o), however, goes much further and flatly prohibits registration of post-1986 NFA firearms. At one level, this is analogous to D.C.'s prohibition on registering handguns to civilians that were not already on the rolls when its now-invalid ordinance was passed, so there may be some risk to 922(o). The question will be the extent to which reviewing courts think 922(o) is a substantially greater burden on Second Amendment rights when the surviving Miller test still suggests that machineguns flunk the newly reinvigorated "common use" test.

I'd be surprised if straight sentencing enhancements for, use of a firearm in commission of a felony, for example, are at significant risk in the short-term. You would first need the courts to adopt a fairly uncompromising strict scrutiny standard, and even that might not be enough. IMHO, such enhancements seem quite directly related to the severity of the offense and can properly be considered at sentencing under either the Guidelines and/or as relevant factors under §3553(a). Nothing in Heller suggests otherwise.

Posted by: zippypinhead | Jun 26, 2008 5:12:05 PM

Bill Otis unapologetically distorted: "Not that your complaint has merit in any event. I have been posting on this site for months and have mentioned these cases twice. If you want to find something that's getting old, you might recur to DK, who has said over and over that supporters of the death penalty are monsters, murderers and racists. I hadn't noticed that you expressed any trouble with his repetition of that false and malicious line. But if you did, tell me where, and I'll apologize for my error."

Please post a statement from me in which I asserted that supporters of the death penalty are racists. I have said that death penalty supporters are killers (which is undeniable I would think). I have said that a certain class of supporters of the death penalty are monsters (those like you who exploit it from a position of privilege to gain political leverage). I have said that you expressed racist propositions when you alleged that criminal acts are attributable to people's moral shortcomings (that's a paraphrase; you actually said it was attributable to people not "living normal lives," "becoming druggies," and something else equally inane). That particular discussion in fact had nothing at all to do with the death penalty per se. On top of all this, you say I have made these statements "over and over," even though it has been you who has continuously raised them. Even here, a post in which I hadn't even commented!

I don't care how many times you wish to repeat anything I have said; I would, however, ask that you abstain from misrepresenting what I have said.

Posted by: DK | Jun 26, 2008 5:36:36 PM

DK:

Your post answers itself.

It does not answer, however, the direct question I previously posed to you, that being whether it is your view that Lincoln was a monster.

Is it?

Posted by: Bill Otis | Jun 26, 2008 5:56:47 PM

"IMHO, this would be an easier first step than a direct frontal assault on 922(g)(1)"

Bill I agree that it would be tough to change 922 (g) (1), however, I think it may be more likely that 921 (a) (20) could be ammended to make it easier for non violent felons to own guns. The existing law only allows felons to own guns who have had their conviction expunged, set a side, pardoned or civil rights restored but I think that it should also exempt convictions for which firearm rights are restored because some states only restore firearm rights and not any of the other exemptions. Also this law makes it possible for violent carreer offenders to own guns because it has nothing that excludes these kind of felons. Violent carreer criminals should never own guns but a guy who was convicted for forgery living in Texas can't own a gun because though Texas restores firearm rights it does not restore civil rights essentially nor is likely that even a non violent felon could get a set a side, expungement or pardon. But I have to ask, is it right for some felons in some states to qualify under 921 (a)(20) and enjoy a second ammendment right, while felons in other state do not qualify under 921 (a) (20) and thus have no second ammendment right?

Posted by: Paul | Jun 26, 2008 8:58:38 PM

Paul:

I think the post you're responding to was authored by the wonderfully named zippypinhead, not by me.

Posted by: Bill Otis | Jun 26, 2008 9:12:59 PM

Bill, you're like a petulant child, and it's terribly draining. I assure you that nobody cares what adjectives I use to describe Abraham Lincoln. It's as if you believe that if you can only get me to say the magic words, "Abraham Lincoln was a monster," you will have won "the debate"--whatever that is--for all time and guaranteed yourself eternal life in heaven. (Unfortunately for you, we know a camel cannot in fact pass through the eye of a needle.)

We aren't children, Bill. We don't idolize American presidents of yore because our fifth grade textbooks told us Lincoln put an end to slavery. (He didn't, the 13th Amendment, and a heck of a lot of radicalized northerners, did that.)

We are adults. We recognize that people in historical positions of power are not perfect for that reason alone. We recognize that a white person who is "in favor of the race to which I belong having the superior position" is a racist and white supremacist. In short, we are not stupid. If you wish to be even marginally persuasive, you'll have to give our brains a modicum of credit.

So, while you irrelevantly continue to ask me whether Abraham Lincoln was a monster, I'll ask you: Do you think a KKK member who states that white people should have the superior position is a monster? What about the KKK member who says:

"I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races; ... I am not, nor ever have been, in favor of making voters or jurors of negroes, nor of qualifying them to hold office, or intermarry with the white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I, as much as any other man, am in favor of having the superior position assigned to the white race."

Or do you suddenly not see the relevance of this question? Think carefully, Bill. Remember that, as between the two of us, only one holds fundamentally racist beliefs, and it isn't me.

Posted by: DK | Jun 27, 2008 1:33:37 AM

DK:

In regards to your direct implication that Abraham Lincoln, who supported the death penalty, was a "monster":

"Bill, you're like a petulant child..."

Better watch out or karl will get on you for using ad hominems!

"...and it's terribly draining."

Then take a deep breath. In fact, take two deep breaths.

"I assure you that nobody cares what adjectives I use to describe Abraham Lincoln."

Translation: "You better believe I think Lincoln was a monster, but if I say so directly it's bad PR."

Incidentally, "monster" is a noun, not an adjective.

"It's as if you believe that if you can only get me to say the magic words, 'Abraham Lincoln was a monster,' you will have won 'the debate'--whatever that is--for all time and guaranteed yourself eternal life in heaven. (Unfortunately for you, we know a camel cannot in fact pass through the eye of a needle.)"

The camel-and-needle business refers to the likelihood that a rich person will gain admittance to heaven. So what you're saying here is that I'm rich.

How do you know that?

And even if it were true, what on earth does it have to do with the question whether Lincoln's support for and use of the death penalty makes him a monster?

"We aren't children, Bill. We don't idolize American presidents of yore because our fifth grade textbooks told us Lincoln put an end to slavery."

Uh, DK, there's a bit of space between not idolizing someone and saying he's a monster. As rhetorical tricks go, you can do better. And have.

"(He didn't, the 13th Amendment, and a heck of a lot of radicalized northerners, did that.)"

Lincoln freed the slaves in the seceded states (which was practically all of them) in the Emancipation Proclamation, January 1, 1863. The Thirteenth Amendment was not ratified until nearly three years later, December 6, 1865.

I could go on with this, but that would merely indulge your long-winded evasion of the question, which can be answered yes or no.

Do you think Abraham Lincoln was a monster?

Posted by: Bill Otis | Jun 27, 2008 6:07:08 AM

I think that Zippy the Pin Head makes good points - although, I got the impression that Scalia was trying to go out of his way to say that most steps short of a total ban are probably okay - I think the most fruitful line of attack is to go after the felon in possession laws - get some sympathetic non-violent felons who just want to go hunting (maybe to add extra sympathy from Scalia get ones who want to go duck hunting) which is something that virtually nobody other than some PETA types is against complaining about the lack of realistic options on getting their gun rights restored.

I'm not sure if the 2nd requires anything else involving criminal law - but if there is a realistic step for convicted felons to get their rights back, that will also likely be a fairly popular step as well.

Posted by: Zack | Jun 27, 2008 10:40:40 AM

Zack

"...if there is a realistic step for convicted felons to get their rights back, that will also likely be a fairly popular step as well."

An interesting proposition. Do you know of any polling on it?

Posted by: Bill Otis | Jun 27, 2008 11:10:39 AM

I don't know of any polls (and I think that proponents of such a plan will need to make a case to the general public), but I think that it is something that can bring together numerous groups of people - now that the individual rights issue has been decided, I would not be surprised to see more common ground appear between supporters of gun control and gun owners. In general, there is strong support for restoration of rights in minority communities. I think that portraying this as an issue for people to potentially get food can bring in some of the poverty advocates.

Obviously, extending such a program to violent felons would be controversial and probably not too popular - but there are many across the political spectrum who believe in second chances. I think also that supporters of such a program can also answer any public safety concerns - and that the majority of people would simply think that it is nuts that a person with a 20 year old marijuana conviction who has lived a law abiding life since cannot go out and hunt or shoot at targets.

Posted by: Zack | Jun 27, 2008 11:49:35 AM

Zack wrote:
"Obviously, extending such a program to violent felons would be controversial and probably not too popular - but there are many across the political spectrum who believe in second chances."

Violent felons? Politically I doubt it will ever happen unless someday ordered by the courts in the face of a lot of popular opposition. And any legislative effort that broad would be DOA. Politicians wouldn't risk that sort of vote, which would have an extremely high likelihood of blowing up in their faces the first time somebody whose rights were restored per the bill they voted for commits another violent crime. Don't believe me? Two word answer: "Willie Horton."

Pragmatically, anyone pursuing this would be well advised to limit the initial effort to white collar types and senior citizens who got caught selling a few joints way back during the Summer of Love.

Posted by: zippypinhead | Jun 28, 2008 7:02:48 PM

I apologize for being unclear - I was talking about a program to restore the rights of those with non-violent felonies and was stating that while I think that once a case is made that a wide variety of people would support restoring the right to bear arms for persons with non-violent convictions.

I think that persons seeking to go after felon in possession laws and restore rights need to focus more on non-violent felons because I agree with you that restoring the right to own guns for violent felons is pretty much politically DOA and the Supreme Court has nipped any such challenge in the bud.

Posted by: Zack | Jul 1, 2008 2:34:19 PM

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