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July 29, 2008

Government Responds To Heller Motion

A helpful reader alerted us that the government has responded to at least one motion to dismiss a federal criminal indictment for felon in possession based on Heller and the Second Amendment.  As previously summarized here, a hearing on this very motion has been scheduled for later this week.  Here is a snippet from the government's response:

            The Heller Court held that the relevant provisions were unconstitutional as applied in the context of banning handguns that are possessed in the home for the purpose of self-defense, but did not wholly invalidate the registration and licensing scheme. 

            Significantly, the Court specifically noted that the right secured by the Second Amendment is "not unlimited."  Heller, slip op. at 54.  The Court acknowledged, for example, that prohibitions on carrying concealed weapons have been deemed lawful under the Second Amendment.  Id.  Of particular significance to the matter presently before this Honorable Court, the Heller Court also emphasized that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."  Id. at 54-55.  And the Court specifically noted that those "presumptively lawful regulatory measures" were just examples, and that the list provided was not "exhaustive."  Id. at 55 n.26.  In addition, the Court limited the sorts of weapons protected by the Second Amendment to those "in common use," Id. at 55, and noted that the Second Amendment "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," Id. at 53.

Download government_response.pdf

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