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April 19, 2010

Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit

The Sixth Circuit has a fascinating little ruling today concerning expungement and gun rights today in US v. Carey, No. 09-3399 (6th Cir. Apr. 19, 2010) (available here).  Here is the heart of the defendant's argument in Carey as explained by the panel:

Carey argues that the Second Amendment to the United States Constitution gives him a fundamental right to possess or carry a firearm, and that the denial of his expungement motion for his valid conviction denied him this fundamental right, resulting in a violation of his Equal Protection and Due Process rights under the Fifth Amendment.  Essentially, Carey contends that, because expungement of his conviction would allow him to regain his Second Amendment rights, a court’s denial of expungement infringes upon his fundamental right.

The panel ruling quotes the well-worn dicta from Heller about laws prohibiting felons from possessing guns, and then rejects Carey's claim this way:

After Heller, this Court affirmed that prohibitions on felon possession of firearms do not violate the Second Amendment.  United States v. Frazier, 314 F. App’x 801 (6th Cir. Nov. 19, 2008).  In short, Heller states that the Second Amendment right is not unlimited, and, in fact, it is specifically limited in the case of felon prohibitions.  Heller, 128 S. Ct. at 2816-17.  Because Congress’s prohibition on felon possession of firearms is constitutional, it follows that the burdens associated with the congressionally-created expungement exception in 18 U.S.C. § 921(a)(20) do not violate the Second Amendment.  Accordingly, the district court did not abuse its discretion in denying Carey’s motion for expungement.

Because of both the posture of the case and the nature of the panel's ruling, the Carey decision arguably raises more questions than it answers.  Specifically, in the course of concluding merely that the district court did not abuse its discretion by denying the motion to expunge, the panel implicitly suggests that the district had discretion to grant the motion within its equitable jurisdiction.  Moreover, it is unclear if the defendant here contended that he needed and wanted to be able to possess guns in conjunction with self-defense of his home; such an assertion would implicate the core of Heller and would perhaps satisfy the Sixth Circuit standard of "compelling and extraordinary circumstances for a Court to grant" a motion for expungement. 

In other words, though affirming the denial of the expungement motion in Carey, the Sixth Circuit has perhaps indicated that the right defendant making the right showing might be able to get the right judge to grant such a motion.  Whether such a defendant will find such a judge in the Sixth Circuit remains to be seen.

April 19, 2010 at 12:58 PM | Permalink

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Comments

Doug has had a busy day today (with seven intries thus far), and without in any way wishing to criticize him for not having an entry about it, I wanted to note that today marks the 15th anniversary of the bombing of the Federal Building in Oklahoma City. It killed 168 people, 19 of them under the age of six.

Timothy McVeigh was convicted and was executed on June 11, 2001. Polling showed that 81% of the public approved of his execution, which probably represents the most famous imposition of the death penalty in this country in the last generation.

McVeigh showed no remorse for what he had done, and in fact explained on national television why he was justified. According to the New York Times, his defense spanned 19 lawyers and cost the taxpayers $13.8 million.

Posted by: Bill Otis | Apr 19, 2010 2:38:48 PM

horse puckey! this is TOTAL CRAP!

" Because Congress’s prohibition on felon possession of firearms is constitutional, it follows that the burdens associated with the congressionally-created expungement exception in 18 U.S.C. § 921(a)(20) do not violate the Second Amendment."

Consideirng up intil the 1950's or so it was perfectly legal to get out of prison and have your weapon handed to you as you left! the consituton gives ALL americans the right to carry arms. No illegal law passed by congress can change that. NOTHING but an constitutinal amendment would and last time i looked i've never seen one.

heck i think the idiots in florida's law still states the anyone releasd from prison will receive the following

1 donkey or horse
1 20$ gold piece
1 rifle

Posted by: rodsmith | Apr 20, 2010 2:48:26 AM

heck i think the idiots in Florida's law still states the anyone released from prison will receive the following----- If only that statement were true .... you get zilch except for a pre -arranged quick ticket back if you jay walk within years of real ease , prison re-offender act , a lifelong x stamped on your forehead because if you are er adjudicated guilty the FDLE will not issue you a certificate of eligibility for expungement , and more good stuff come to Florida on Vacation leave on probation ---- pretty soon watering your grass on the wrong day will be a felony in Florida

Posted by: The X con | Aug 9, 2010 9:43:37 PM

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