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June 26, 2008

The best post-Heller test case for felon self-defense gun rights?

Last month I highlighted in this post what would appear to be a very hard case in the wake of Heller's protection of an individual Second Amendment right in service to the natural right of self-defense.  The case, US v. Alston, No. 06-1559 (3d Cir. May 20, 2008) (available here), affirms a mandatory 15-year sentence in a felon-in-possession case. 

As detailed in this prior post, it was undisputed that former felon Robert Alston carried a firearm fo a short period due to "a legitimate fear for life or limb" and he testify against local thugs who thereafter threatened Alston and his daughter.  Despite these undisputed circumstances, the Third Circuit affirms the district court's decision that Alston should not be allowed to even argue the defense of justification to a jury when being prosecuted for felon-in-possession.  As I suggested before, I have a hard time seeing how those who genuinely ascribe to the logic and rhetoric of the majority's opinion in Heller can readily justify placing Mr. Alston in federal prison for 15 years simply because he carried a gun for self-defense for a short period when indisputbly facing "a legitimate fear for life or limb."

Because of Alston's criminal record, perhaps he is not the poster child for challenging felon-in-possesion laws through the newly established Second Amendment individual right.  But the facts of his case are remarkable, and all he seeks is a right to argue self-defense necessity to a jury.  And if this is not a fitting and hard post-Heller test case, perhaps readers can suggest others.

June 26, 2008 at 09:31 PM | Permalink

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Comments

Doug, I represent a def on appeal in a case where he had some old shotguns in a locked gun cabinet in his bedroom. He has a twenty year old conviction for drugs, and had his right to possess a gun restored after five years, which was later changed due to passage of a new, broad prohibition. He got 18 months in prison. The defendant's mother brought the guns to her son's house to keep her husband from shooting himself due to Alzheimer's.

I preserved the Second and Ninth amendment claim of the right to store guns belonging to one's father to keep the man from shooting himself.

bruce cunningham

Posted by: | Jun 26, 2008 10:00:25 PM

what about an ex post facto challenge. if he had his gun rights restored-then categorically taken away by a new statue becuase of his status as a prior offender it may be ex post facto.

Posted by: george weiss | Jun 27, 2008 1:12:08 AM

george: you'd think it would be an ex post facto violation. But it is not increasing a penalty or makign something illegal after it was done. Seems more like a due process violation to me. Maybe equal protection.

I don't believe it's legitimate (despite some dicta from Scalia in an opinion a decade or so ago) for the state or the courts to limit what defenses a criminal defendant may use at trial.

If the state proves beyond a reasonable doubt every element of the crime, it should create a rebuttable presumption that the defendant is guilty. The defendant should be able to rebut that presumption by showing his actions were reasonable. After all, crimes are nothing more than codified behaviors which are extremely unreasonable.

Some speeding statutes work this way (texas, for example). It is against the law to drive an unreasonable and imprudent speed under the circumstances. The speed limits are a prima facie maximum reasonable speed. Going over the speed limit creates a presumption the driver was not driving at a reasonable and prudent speed under the circumstances. The defendant can try to rebut the presumption.

ALL crimes should work this way.

Yeah, it might make the prosecutors job a little harder. Boo hoo. Like their job is not easy enough, they need legislatures and courts to BAN defendants from raising certain defenses.

Posted by: bruce | Jun 27, 2008 2:04:17 AM

George, you are absolutely right. I believe it is an ex post facto problem for a felon to have his right to possess guns restored under the law in effect when he was sentenced on the felony and then taken away. Judge Elmore of the North Carolina Court of Appeals agrees and dissented in the Britt case currently sitting in the NOrth Carolina Supreme Court. If Britt wins my client wins and the law authorizing blanket and permanent prohibition from gun possession is unconstitutional.

Posted by: | Jun 27, 2008 7:34:31 AM

Doug, I represent a def on appeal in a case where he had some old shotguns in a locked gun cabinet in his bedroom. He has a twenty year old conviction for drugs, and had his right to possess a gun restored after five years, which was later changed due to passage of a new, broad prohibition. He got 18 months in prison. The defendant's mother brought the guns to her son's house to keep her husband from shooting himself due to Alzheimer's.

I preserved the Second and Ninth amendment claim of the right to store guns belonging to one's father to keep the man from shooting himself.

bruce cunningham

Bruce see United States v. Osbourne fifth circuit court of appeals. It deals with a case just like the one you described but the fifth circuit reversed his conviction.

Posted by: Paul | Jun 27, 2008 8:22:16 AM

Who has the better case after Heller? The nonviolent felon in possession or the illegal alien found with a handgun?

Posted by: anon | Jun 27, 2008 9:58:08 AM

thanks Paul, my client's mother is plagued with guilt because she feels responsible for her son going to prison because she wanted him to store the guns at his house to protect her husband.

bruce cunningham

Posted by: | Jun 27, 2008 11:03:04 AM

Doug, Justice Scalia spends a lot of time discussing the different meanings of keep arms and bear arms. An argument has emanated from that discussion for my client who had his father's guns in a gun cabinet. As long as you don't carry a gun around or physically hold it in your hand , it is okay for a nonviolent felon to store, or keep, longarms in his house. And a criminal law that overrides that right is unconstitutional. I can see a distinction between a felon storing his father's .22 rifle in a box in the attic and carrying a 9 mm glock around the neighborhood.

bruce cunningham

Posted by: bruce cunningham | Jun 28, 2008 12:20:16 AM

Paul, Osborne only discusses the wording of the federal felon in possession statute, and doesn't rest its holding on due process or equal protection. Seems the 7th circuit still holds to the contrary regarding the statutory interpretation, though.

My prediction is that Heller will not help any criminal defendants vis a vis firearm related charges. Not one bit.

Posted by: bruce | Jun 28, 2008 12:25:23 AM

Look up u.s. vs. tafoya in new mexico. Fugitive recovery agent that picked up a shot gun after his partner was attacked and beaten by 10 people and now is been charged. Had a felony 20 years ago.and nothing since.

Posted by: Al | Jul 3, 2008 11:17:30 PM

Bruce good thought on the Ninth amendment . the goverment does not have to provide food to the people
the goerment cannot deny food to the people, same holds true for protection

Posted by: larry | Dec 30, 2008 7:20:34 AM

I am a student of history.

My question, however, is more upon a separate aspect of this case.

Effectively the prohibition against firearms (and indeed 'any other weapon') is a prohibition from self-defense.

Simultaneously with this, there are numerous court cases that state that there is no protected property interest (or civil liability) for failure of the police to protect.

The two are contrary to public order, as they are contrary to each other. Either there is a civil liability for failure to protect (unsupportable, due to the impossibility of the police force from being everywhere at once) or there is a right, even as a felon to self-protection.

Is my thinking off?

Posted by: Triedbyconscience | Jan 22, 2009 11:12:27 AM

Bruce you are right about the Tafoya case in New Mexico, how do I know because it's my case. I had my gun rights restored by the state but still face federal law. It doesn't matter that I had to fend these people off by myself for 20 mins while trying to render first aid to my partner. My case is still pending at this time. My question is how the federal gov can override a state law, and that goes for any felon that has had his rights restored because the feds will still charge you here in New Mexico with 922G. Let me know what you think. [email protected]

Posted by: Al T | Apr 30, 2009 6:48:51 PM

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