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July 10, 2008

Firearm sentence enhancements, the nexus notion, and chilling effects

Eugene Volokh with this new post continues to do a strong job criticizing lower courts for sloppy and unsatisfactory reasoning when rejecting post-Heller Second Amendment claims by criminal defendants.  But in his latest post, titled "The Second Amendment and Sentence Enhancements for Firearms Use or Carrying in Connection With Crimes," I fear he is a bit too quick to embrace state jurisprudence that upholds gun sentence enhancements based merely on a gun having a purported "nexus" to a separate crime.  After quoting a recent Washington state ruling explaining the nexus idea, Eugene has this comment:

It seems to me that the Washington Supreme Court's rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement.

The problem I have with this idea is that, if one really believes in a true right to "keep and bear arms," why should any keeping of a gun be deemed an "unprotected use" leading to an enhanced sentence unless and until the gun is fired or brandished or otherwise actively and directly used as part of a crime? 

Consider First Amendment analogies.  Suppose a tax protester gives a big speech about how the federal government wastes tax dollars before destroying a mailbox as part of his protest: though the protester can be prosecuted and sentenced for destroying federal property, can Congress demand that his sentence be enhanced for the otherwise protected speech that has a nexus to his crime?  Similarly, could an anti-abortion protester prosecuted for trespassing on the private property of an abortion clinic have his sentence enhanced for engaging in a prayer while trespassing?

These ideas lead me to wonder whether and how "chilling" or "undue burden" doctrines that have often been applied in the First Amendment and other contexts might extend to the Second Amendment.  If a person is under constant fear that his (otherwise lawful) possession of a gun could lead to a massive sentence increase if he even gets in a bar fight, won't persons be (unduly) chilled from exercising their constitutional rights to keep and bear arms?

Of course, as I have said in many prior posts, I seriously doubt that courts (or even vocal gun right advocates) will ever work through all the implications of taking and protecting Second Amendment rights seriously for everyone and not just for "preferred individuals."  This suggests that in the gun arena, like in so many others, advocates seek principally to protect rights for people they like, not for those they don't.

Some related posts (written both pre- and post-Heller):

UPDATE:  Simple Justice has this great follow-up post on these issues, titled "Brandishing a Right After Heller."  Here are my favorite snippets:

Eugene has still not wrapped his arms around the idea that if gun possession is a fundamental right, then it must be views as are other constitutional rights, provided all people, good or bad, felons or virgins, citizens or illegals.  We are still so used to thinking of the possession of a gun by "bad people" as criminal that we can't quite seem to grasp or accept the real consequence of Justice Scalia's decision....

Now that the proponents of the individual right to keep and bear arms got their wish, it's time to live the hard consequences of intellectual integrity.

July 10, 2008 at 08:02 PM | Permalink

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» Brandishing a Right After Heller from Simple Justice
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Comments

What about the federal crime of receiving a firearm while under a felony information. It seems to me that a person cannot be divested of his right to a gun simply because a state prosecutor files a non-violent felony charge against him. Thoughts?

Posted by: | Jul 11, 2008 1:24:50 PM

Doug:

"Suppose a tax protester gives a big speech about how the federal government wastes tax dollars before destroying a mailbox as part of his protest: though the protester can be prosecuted and sentenced for destroying federal property, can Congress demand that his sentence be enhanced for the otherwise protected speech that has a nexus to his crime? Similarly, could an anti-abortion protester prosecuted for trespassing on the private property of an abortion clinic have his sentence enhanced for engaging in a prayer while trespassing?"

Good points. Similar concerns underlie my misgivings about enhanced sentences for "hate crimes." Such things might well be constitutional, since taking the defendant's state of mind into account is perfectly proper at sentencing. Still, it comes awfully close to punishing a person for what he's thinking. This gives me the willies.

Posted by: Bill Otis | Jul 14, 2008 6:55:22 AM

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