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February 9, 2010

Ninth Circuit panel rejects Second Amendment challenge to federal felon-in-possession crime

The Ninth Circuit has a little ruling today that rejects a Second Amendment challenge to the federal felon-in-possession prohibition in light of Heller. The ruling in US v. Vongxay, No. 09-10072 (9th Cir. Feb. 9, 2010) (available here), gets started this way:

Defendant-Appellant Peter Vongxay appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He challenges his conviction on three grounds. First, he argues that § 922(g)(1) violates the Second Amendment.  Next, he asserts that § 922(g)(1) violates his right to equal protection under the Due Process Clause of the Fifth Amendment.  Finally, he claims that the arresting officer’s search violated his Fourth Amendment right to be free from unreasonable searches and seizures. We affirm the judgment of the district court on all Vongxay’s claims.

And here is the heart of the panel's analysis of the Second Amendment issue (with some cites, footnotes and quotes omitted):

[T]o date no court that has examined Heller has found 18 U.S.C. § 922(g) constitutionally suspect ... [and thus] there appears to be a consensus that, even given the Second Amendment’s individual right to bear arms, felons’ Second Amendment rights can be reasonably restricted.

Denying felons the right to bear arms is also consistent with the explicit purpose of the Second Amendment to maintain “the security of a free State.” U.S. Const. amend. II.  Felons are often, and historically have been, explicitly prohibited from militia duty....

Finally, we observe that most scholars of the Second Amendment agree that the right to bear arms was “inextricably . . . tied to” the concept of a “virtuous citizen[ry]” that would protect society through “defensive use of arms against criminals, oppressive officials, and foreign enemies alike,” and that “the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. criminals) . . . .”  Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986); see also Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (noting that felons “were excluded from the right to arms” because they were “deemed incapable of virtue”).  We recognize, however, that the historical question has not been definitively resolved.  See C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J. L. & Pub. Pol’y 695, 714-28 (2009) (maintaining that bans on felon gun possession are neither long-standing nor supported by common law in the founding era).

Though I am inclined to praise this Ninth Circuit panel for giving a little more attention to this Second Amendment issue than most other circuit courts, I cannot help but be a little put off by the fancy footwork in this opinion. 

Specifically, though it is surely reasonable to suggest that "felons’ Second Amendment rights can be reasonably restricted," the federal law being challenged here essentially declares that any and every person ever convicted of a felony, no matter how long ago and no matter what the nature of the felon, no longer has any right to even possess any kind of firearm for any purpose.  This law is not a restriction on felons’ Second Amendment rights, it is essentially a declaration that felons do not have these rights.  Also, it seems as though the Ninth Circuit panel is here endorsing the notion that only the virtuous have Second Amendment rights.  Are we really confortable with starting a doctrine of enumerated rights that hinges on notions of who is or is not virtuous?

February 9, 2010 at 03:55 PM | Permalink

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Comments

"This law is not a restriction on felons’ Second Amendment rights, it is essentially a declaration that felons do not have these rights."

I think this is a distinction with out a difference. It seems to me that whether or not a felon can bear arms is a matter of policy and not constitutional interpretation.

"Also, it seems as though the Ninth Circuit panel is here endorsing the notion that only the virtuous have Second Amendment rights. Are we really confortable with starting a doctrine of enumerated rights that hinges on notions of who is or is not virtuous?"

Yes. So long as we start from the legal presumption that everyone in virtuous and that there has to be some act which causes the lose of that virtue.

I think the real problem is not whether felons have a right to bear arms. Rather, the real problem is that we gave developed a legal discourse where "looking at your momma funny" is a felony. Put another way, the misdemeanor/felony distinction is as a practical matter meaningless. That's the problem.

Posted by: Daniel | Feb 9, 2010 5:37:01 PM

Why Can’t Martha Stewart Have a Gun? (pdf)

Posted by: George | Feb 9, 2010 5:38:53 PM

For what it's worth, 18 U.S.C. § 921(a)(20) excludes from the group of predicate felonies "[a}ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored . . ., unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." Although § 922(g)(1) ostensibly precludes all felons from possessing firearms or ammunition, people convicted of felonies may nonetheless possess guns and ammo if they meet any of these exceptions. For example, a felon may petition to have his civil rights restored--including, presumably, his right to possess firearms. Assuming that the states do not restore civil rights arbitrarily, this would seem to take some of the sting out of your initial concerns. That is, if a felon can sufficiently demonstrate to the state that he is responsible enough to possess these dangerous articles, then § 922(g)(1) cannot be fairly characterized as a declaration that felons have no Second Amendment rights at all. Just a thought.

Posted by: AikeZ | Feb 9, 2010 9:06:27 PM

"I think the real problem is not whether felons have a right to bear arms. Rather, the real problem is that we gave developed a legal discourse where "looking at your momma funny" is a felony."

Exactly, good comment, nuff said.

"[a}ny conviction which has been expunged"

Federal felony expunction? How please tell?

Posted by: HadEnough | Feb 9, 2010 10:19:57 PM

this is a very dangerous opinion. Our Criminal Justice system is largely based to control poor people from from destroying or in any way altering the property from the wealthy class. If having virtue is a requirement to possess the rights granted by the Bill of Rights, which I believed were "unalienable," and said virtue is lost by the commission of a felony, then poor people are in deep shit. Excuse my language, but its common knowledge that the poor and minorities are more likely to commit crime because of the environment in which they grow up. Watch this concept being used in years to come to strip felons from further rights such as speech or the protection against unreasonable seizures.

Posted by: EJ | Feb 9, 2010 11:06:01 PM

George --

"Why Can't Martha Stewart Have a Gun?"

With all the bodyguards she can afford (and has), why would she bother?

P.S. Where was all this liberal enthusiasm for guns, or Martha Stewart for that matter, BEFORE Heller? If I recall correctly, all you libs were accusing us conservatives of being a bunch or wahoo cowboys for supporting the right to keep and bear arms. How suddenly you've changed!

Posted by: Bill Otis | Feb 10, 2010 4:38:30 AM

Bill, just because some folks have come late to a concern for gun rights does not mean that the rights need not be respected. Plus, maybe the change has come because at least some people take seriously the rule of law and the notion that SCOTUS should be trying to develop sound legal principles rather than just legislating their policy preferences through constitutional rulings.

Shouldn't the "libs" you like to assail be praised for accepting Heller as the law of the land and now being interested in figuring out its valid constitutional reach and limits? Would you prefer the "libs" take the approach that some have taken to the Kennedy child rape ruling by urging the passage of even more restrictive gun laws and hope that SCOTUS will reverse Heller? Or are you urging "libs" to gear up a constitutional amendment response as they now seem to want to do in response to Citizens United?

Posted by: Doug B. | Feb 10, 2010 5:56:44 AM

Yet another example of tea-leaf reading toward a pre-determined outcome...passing itself off as legal analysis.

Only the virtuous are permitted to serve in the militia? Really? What about the U.S. Army's practice in recent years of waiving felony restrictions in order to meet recruiting goals?

And what about Tiger Woods and governor Sanford, are they virtuous enough to possess guns?

Daniel nailed it. Over the last 40 years, grandstanding politicians inflated into felonies hundreds (thousands?)of actions that once might have prompted lawsuits, fines or yawns.

Bill, some of us libs called you wahoo cowboys for imagining you could fend off an encroaching Arsenal of Democracy with semi-automatic rifles and scatterguns.

Posted by: John K | Feb 10, 2010 11:03:28 AM

I find it interesting that the 9th looked to the text of the 2nd A to defend this blanket restriction rather than looking to one of the main rationales of Heller itself, which was that gun possession was necessary for self defense.

Also, if the 2nd A represents a fundamental right, why are these statutes not getting a fundamental rights standard of review? There is no way this law is either narrowly tailored or a reasonable restriction.

Posted by: Talitha | Feb 10, 2010 11:27:51 AM

Mr. Bill, simply posting a direct link to a cited article in the opinion is "liberal enthusiasm for guns"? I've never been anti-gun, but since you brought it up, a child is more likely to be accidentally killed by a gun than be killed by a stranger sex offender. Parents should equally ask if there is a gun at the house before allowing their child to visit. Why shouldn't gun regulation be as extreme? There was something else interesting in the paper. Those that carried their guns to the Obama "assemblages" were violating common law. There was something else noteworthy in the article. The NRA was apparently the MADD equivalent in the 20s and 30s. "Take their rights, not ours." The NRA apparently did some fear mongering about guns and now complain because of regulations based on fear of guns.

Posted by: George | Feb 10, 2010 12:23:16 PM

Doug --

"Bill, just because some folks have come late to a concern for gun rights does not mean that the rights need not be respected."

It's not that they came late. They switched sides. On a dime.

Of course gun rights need to be respected. But to say that does not answer the question of what those rights are, or what limitations on them are consistent with the Second Amendment.

"Shouldn't the 'libs' you like to assail be praised for accepting Heller as the law of the land..."

No, since they have no realistic choice but to accept it.

"...and now being interested in figuring out its valid constitutional reach and limits?"

I don't think their concerns are that scholastic. I think it's mostly defense lawyers trying to get clients with felony records off the hook when a sawed-off shotgun shows up in their closet.

"Would you prefer the "libs" take the approach that some have taken to the Kennedy child rape ruling by urging the passage of even more restrictive gun laws and hope that SCOTUS will reverse Heller? Or are you urging "libs" to gear up a constitutional amendment response as they now seem to want to do in response to Citizens United?"

I'm the last one libs should (or would) look to for advice, since I'm playing for the other team. If they want to gear up for a Constitutional amendment, fine, it's a free country, but it would be a waste of time. They'd be better advised to put the dough into trying to hold the House, which is right now looking like a dicey proposition.

I admire the Quixotic efforts to push the Court to reverse itself in Kennedy, which I view as wrongly decided for the reasons stated in Justice Alito's dissent. But they're still Quixotic. The states don't push the Court around; it's vice versa.

P.S. I'm not as averse to your position as I might sound. I admit I enjoy teasing the libs with their own favorite charge of hypocrisy, but most of my lib friends take it well and just hand it back to me for having shot myself in the foot in Dickerson.

If the states keep their present prohibition on felon-in-possession, it's OK with me. There may be individual instances of injustice, and I would be fine with a statute that permitted previously convicted felons to petition for review of their firearms disability. But my basic advice to people is what it's always been, to wit, don't get yourself a felony conviction and you won't have to worry about it. Since 99% or so of the population seems to follow this advice, I rest easy at night.

Posted by: Bill Otis | Feb 12, 2010 3:08:14 AM

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