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July 13, 2008
Media coverage of Second Amendment effort to dismiss felon-in-possession charges
Last week I posted here a copy of a notable motion to dismiss a federal criminal indictment for felon in possession based on Heller and the Second Amendment. Today the Pittsburgh Post-Gazette has this story on the motion. Here are snippets from the story, which notes that a hearing on the motion has been scheduled for later this month:
A Washington County man charged in federal court with being a felon in possession of a handgun has filed a motion asking that the charges be dismissed based on a recent Supreme Court decision. James F. Barton Jr. argues that the court's opinion lifting the ban on handguns in Washington, D.C. — and the assertion that the possession of guns in the home is an individual right — must be applied to all people.
Senior U.S. District Judge Alan N. Bloch has scheduled a July 31 hearing on the matter....
"Despite having a conviction history, Barton still has a right to free speech. He still has the right to exercise whatever religion he wants to," Mr. [Barton's lawyer] wrote. "Our Supreme Court has not even come close to saying that, once you are convicted of a federally defined felony, you can not assert a Fourth Amendment right. Heller holds that 'all Americans' have an 'individual right to use arms for self-defense.' This right is non existent, however, to Barton because a statute of Congress eliminates his ability to protect himself and his family through the possession and use of firearms in his home."...
Mr. Barton, 48, was convicted in 1995 of receiving stolen property — which was a firearm — and possession of a controlled substance with intent to deliver in Washington County. In May 2007, investigators searching his home found 15 firearms — seven pistols, three shotguns and five rifles -- as well as ammunition. Mr. [Barton's lawyer] concedes that his client may not be the most sympathetic defendant to use as a test subject, but his argument remains the same. "I firmly believe your home is your castle, and you should be allowed to defend yourself if an intruder comes in to do harm to you or your family," he said. "I think the key dividing line is the home. What you do in your home is far different from what you do in public."...
In the Western District of Pennsylvania, the number of felon-in-possession charges have gone from 19 in 2003 to 90 in 2007. US Attorney Mary Beth Buchanan said the people in this district who are charged with being a felon in possession are those who have significant and recent criminal histories. Though she said the federal law prohibiting felons from possessing firearms doesn't differentiate between offenders, significant and recent criminal histories are just two of the criteria her office uses when meeting with local and state law enforcement to see if a case should be prosecuted federally. "We've charged offenders with recent convictions or past convictions of a very serious and violent nature," she said.
Though I suppose I should be am pleased to learn that the US Attorney for the Western District of Pennsylvania does not seek to make a federal case out of any and every instance of felon in possession, her apparent concession that she does not bring federal prosecutions in every provable felin-in-possession case raises distinct concerns about disparate enforcement patterns in this broad (and potentially unconstitutional) law. It is as if the federal government is saying that persons with old, not-too-serious felonies are, though prosecutorial grace, allowed to keep exercising their constitutional gun rights, but more recent or serious felons are out of luck. Yeah, I think I see that in the text of the Second Amendment when I squint real hard.
Some related posts (written both pre- and post-Heller):
- More thoughts about the scope of Second Amendment rights
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
July 13, 2008 at 08:12 PM | Permalink
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Comments
The most interesting part of the excerpted article was this:
"Mr. Barton, 48, was convicted in 1995 of receiving stolen property — which was a firearm — and possession of a controlled substance with intent to deliver....In May 2007, investigators searching his home found 15 firearms — seven pistols, three shotguns and five rifles -- as well as ammunition."
In other words, the guy is a druggie and keeps an arsenal in his house that would make Rambo blush.
This does not prevent his lawyer from an indignant lecture that Barton needs all these weapons for "self defense."
Righto. And I need a tank for self defense. It makes just as much sense.
I actually wonder whether the lawyer is going to be able to keep a straight face while arguing this motion.
Posted by: Bill Otis | Jul 13, 2008 8:52:43 PM
Bill : I will be able to keep a straight face. The constitution does not specify how many adult porn magazines you can have in your house, it just allows you to have them. Like the article said, the client does come to me with cartain "warts". But to those of us who labor in the vineyard of criminal defense, that is always the case.
Posted by: David Chontos | Jul 13, 2008 9:05:23 PM
I'm just hoping the 2nd Amendment is not incorporated to the states.
Posted by: D | Jul 13, 2008 10:12:07 PM
David Chontos:
It sounds from the article as if the lawyer is going to make self-defense a big part of his pitch. If that is correct, the judge could well wind up asking this: "OK counsel, I hear you on the strict Second Amendment claim. But are you telling me your client needs 15 firearms for 'self-defense'?"
Is there any direct answer to that that won't have the judge rolling his eyeballs toward the ceiling?
Posted by: Bill Otis | Jul 13, 2008 10:17:37 PM
I know nothing about Mr. Barton, but I don't think it matters if a person has 1 or 50 pistols, rifles, or shot guns if owning guns is an individual right. We'll see. The capricious nature of enforcement is troublesome.
Posted by: beth curtis | Jul 13, 2008 11:29:12 PM
"the guy is a druggie"
Mr. Otis,
You have any proof of that other than a 1995 arrest? He completed his sentence and there are no apparent allegations of finding drugs with the guns.
Posted by: George | Jul 14, 2008 12:34:21 AM
beth curtis:
"I know nothing about Mr. Barton, but I don't think it matters if a person has 1 or 50 pistols, rifles, or shot guns if owning guns is an individual right. We'll see. The capricious nature of enforcement is troublesome."
If owning guns is an unqualified individual right, you are correct that it doesn't make any difference whether the owner has 1 or 50.
If, however, the defendant is going to make self-defense a major component of his argument, as it certainly seems from the excerpts of the article that he will, whether he owns 1 or 50 makes a lot of difference.
One gun might be needed for self-defense. If you've got 50, self-defense is not really what you're up to.
Posted by: Bill Otis | Jul 14, 2008 6:14:26 AM
George:
You ask whether I have any proof beyond the defendant's 1995 arrest for possession of drugs with intent to distribute that he's a "druggie."
First, according to the excerpt, it was not just an arrest, and it was not just for drugs. It was a conviction on both a drug charge and on a charge of receiving stolen goods (a firearm). A guy who's mixing guns (much less stolen guns) and drugs is unlikely to be Mr. Nicey. He's up to no good.
Second, why would I need anything beyond his prior drug conviction to say he's a druggie? Benedict Arnold's treason occurred over 200 years ago, but he is still correctly referred to as a traitor (indeed he's hardly referred to as anything BUT a traitor).
More broadly, a guy with 15 firearms is not exercising his Second Amendment rights (such as they turn out to be as a result of this case) merely -- or perhaps at all -- for purposes of self-defense. Are you curious to know what his other purposes might be? I sure am.
Posted by: Bill Otis | Jul 14, 2008 6:31:58 AM
its very nice blog
Posted by: Lorra | Jul 14, 2008 6:44:20 AM
Bill,
I'm not going to challenge your argument that, strictly speaking, one doesn't need numerous guns for self-defense, but that aside, 15 firearms is certainly not an "arsenal." It's actually quite typical for many hunters and sport shooters. My late father, who was an ordained minister for more than 40 years and an avid hunter, had that many firearms of various sorts when he died, both for hunting and self-protection. To be sure, he never had a criminal record, so I'm not comparing him to Mr. Barton. I'm simply pointing out that 15 forearms isn't unusual, especially in rural Pennsylvania.
Posted by: anon | Jul 14, 2008 8:43:43 AM
Oops. 15 "forearms" would be astonishing! I need more coffee.
Posted by: anon | Jul 14, 2008 8:46:11 AM
"a guy with 15 firearms is not exercising his Second Amendment rights"
Bill, you must be squinting even harder than Doug if you see that in the text of the Second Amendment. On what possible basis can you support that assessment?
You really don't think an amendment that specifically references a "militia" would only countenance one gun per person? That's just silly.
Posted by: Gritsforbreakfast | Jul 14, 2008 9:02:17 AM
Does self defense mean "a gun"? I don't know. I do know that gun owners often are gun collectors.
Does Heller mean "a gun" for self defense?
It looks like the conviction was for receiving stolen property and possession of a controlled substance with intent to distribute. It says nothing about being a drug user, or using fire arm in a violent crime.
Posted by: beth curtis | Jul 14, 2008 9:06:53 AM
"the guy is a druggie"
Bill,
If this guy doesn't do drugs and has paid his debt to society shouldn't he be offended by you labeling him a 'druggie". The benedict arnold argument is weak. I have been drug free for 20 years am I still a druggie?
Posted by: Felon with no 2A Rights | Jul 14, 2008 10:17:18 AM
Mr. [Barton's lawyer] concedes that his client may not be the most sympathetic defendant to use as a test subject,
- I agree but we are only at the tip of the iceberg. The courts are going to be over run with felon in possession cases. I support non violent felons getting Second Amendment rights.
Posted by: BS | Jul 14, 2008 10:22:04 AM
Mr. Otis, federal law seems to disagree with you. The government, after a period of time and under certain circumstances, thinks a druggie is no longer a druggie.
GGD-92-56 Drug Control: Difficulties in Denying Federal Benefits (pdf).
Do you really suggest a Constitutional right should be denied based on suppositions like yours? Imagine the fun Ann Coulter would have denying First Amendment rights to liberals under that standard.
Posted by: George | Jul 14, 2008 12:26:18 PM
Grits:
You quote me as saying, "a guy with 15 firearms is not exercising his Second Amendment rights"
You then say: "Bill, you must be squinting even harder than Doug if you see that in the text of the Second Amendment. On what possible basis can you support that assessment?"
Nice job, Grits. Only you forgot to put in the rest of my sentence (or give any hint that there WAS a rest of the sentence). The entire sentence reads: "More broadly, a guy with 15 firearms is not exercising his Second Amendment rights (such as they [might] turn out to be as a result of this case) merely -- or perhaps at all -- for purposes of self-defense."
You're able to criticize the sentence as being at odds with the Second Amendment ONLY by leaving out the part that makes it crystal clear that the sentence IS NOT ABOUT THE SECOND AMENDMENT per se, but about the defendant's PURPOSE for having so many guns.
Like I say, nice job.
Is that something you'd try in a brief in court? I don't think it would be advisable.
Grits, consider taking off the ideological blinders for just a moment. Seeing the world from only one perspective doesn't produce a realistic picture. I suppose there is a remote possibility that in some very strange situation, never hinted at by the defendant's lawyer, a person could have 15 firearms for self-defense. But you know as well as I do that a person with that many guns, after having been convicted of a drug felony, and thus under a still-valid prohibition against owning any guns at all, is more likely than not up to no good. At the minimum he has grossly flouted the disability he earned by his prior conviction. Unless we are just to discard the rule of law, he doesn't get to decide for himself that the prohibition doesn't count anymore.
The idea that someone needs 15 firearms for self-defense just doesn't wash. Something else is going on with this guy. What other than ideology makes you want to pretend otherwise?
And for however that may be, when you quote me in the future, please do so in a way that fairly conveys what I have actually said.
Posted by: Bill Otis | Jul 14, 2008 12:49:53 PM
George:
"Mr. Otis, federal law seems to disagree with you. The government, after a period of time and under certain circumstances, thinks a druggie is no longer a druggie."
Wrongo. The feds think that after a period of time and under certain circumstances -- which you don't demonstrate exist in this defendant's case -- a drugie is still a druggie, but on the whole should be able to receive some federal benefits notwithstanding this fact.
"Do you really suggest a Constitutional right should be denied based on suppositions like yours?"
It was the Heller majority, not me, that said the constitutional right to keep and bear arms (long and indignantly denied wherever possible by liberals, who have developed a sudden case of massive amnesia) did not affect the longstanding prohibition on felons possessing firearms.
Whether you think that part of Heller was correct or not, it was still the Court that said it. I didn't have a vote.
Posted by: Bill Otis | Jul 14, 2008 1:11:32 PM
Clearly, statutes that prohibit felons from possessing guns are over simplifications. The risk that gun will be misused is the issue, (risk control) not whether the person in question was a felon. Of course the fact that a person is a criminal offender increases that risk under some circumstances, but how much is too much? This is an area of the law and public policy that needs to grow up.
Posted by: Tom McGee | Jul 14, 2008 1:14:38 PM
A massive surge of subjectivity in application of the law seems to be the topic.
Supposition, innuendo, prejudice, and point of view cloud the air and lead to polemics and loss of respect for the law, and those that enforce it
Posted by: beth curtis | Jul 14, 2008 1:33:39 PM
The federal Gov has long since established a policy that some felons should have the right to own firearms see 18 USC 921 (a)(20). So I don't think it would much of a stretch to go a little further with that law and make a distinction between violent carreer offenders and non violent felons.
Posted by: Paul | Jul 14, 2008 1:59:06 PM
Heller expressly said that the Second Amendment does not impact felon in possession laws. Admittedly, that was dicta, but more clear dicta one would be hard pressed to find.
The Motion is DOA.
FWIW, incorporation is a non-issue in this case, as the felon in possession charge is brought in federal court under federal law.
Also, this is a very weak disparate enforcement case. A prosecutor doesn't have a duty to bring charges even when a case with proof beyond a reasonable doubt is presented in a case tied up with a ribbon, thus minimizing the resources necessary to bring it. In the U.S., unlike Continental Europe (where there is a duty to prosecute in most cases where there is credible evidence of a crime), near absolute prosecutorial discretion is the norm.
Disparate enforcement cases have to show the an impermissible ground is used to distinguish cases brought from cases not brought. Limiting cases to, for example, people with significant and recent criminal histories, people also facing other federal charges, or to people with large numbers of weapons, is a perfectly legitimate exercise of prosecutorial discretion.
Posted by: ohwilleke | Jul 14, 2008 4:17:16 PM
beth curtis:
I am not as pessimistic as you, but the concerns you voice are not without substance. It was precisely to avoid these problems that the guidelines should have remained mandatory, with serious appellate enforcement. Once the Supreme Court threw those things over the side of the boat, this scattershot subjectivity was inevitable.
Posted by: Bill Otis | Jul 14, 2008 4:30:37 PM
ohwilleke's analysis of the disparate enforcement argument is dead on. Suppose you are cruising down the freeway moving with traffic and going 15 over the limit. Smokey nabs you, the other 300 cars in the vicinity go happily by. Have you suffered an injustice? Hardly - even if some of the cars that went by were snazzy sports cars and you are driving a junker. If the feds are exercising discretion by looking at aggravating factors they are doing their job. If the US Attorney takes some and lets local prosecutors take the rest - where is the disparate enforcement?
The court's holding that it was not calling into question felon in possession laws is technically dicta - it does not answer directly the question presented in the cert petition. HOWEVER, you have the court for the first time recognizing an individual constitutional right to bear arms. The fact that the court responded to the solicitor general's brief which raised this very issue about felon in possession laws is not the kind of dicta that you can just ignore.
Posted by: Alan O | Jul 14, 2008 6:13:32 PM
ohwilleke's analysis of the disparate enforcement argument is dead on. Suppose you are cruising down the freeway moving with traffic and going 15 over the limit. Smokey nabs you, the other 300 cars in the vicinity go happily by. Have you suffered an injustice? Hardly - even if some of the cars that went by were snazzy sports cars and you are driving a junker. If the feds are exercising discretion by looking at aggravating factors they are doing their job. If the US Attorney takes some and lets local prosecutors take the rest - where is the disparate enforcement?
The court's holding that it was not calling into question felon in possession laws is technically dicta - it does not answer directly the question presented in the cert petition. HOWEVER, you have the court for the first time recognizing an individual constitutional right to bear arms. The fact that the court responded to the solicitor general's brief which raised this very issue about felon in possession laws is not the kind of dicta that you can just ignore.
Posted by: Alan O | Jul 14, 2008 6:14:00 PM
