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September 8, 2010

Eighth Circuit (gleefully?) rejects Second Amendment challenge to § 922(g)(3)

The Eighth Circuit today in US v. Seay, No. 09-2778 (8th Cir. Sept. 8, 2010) (available here), rejects yet again a federal defendant's effort extend the reach of the Supreme Court's Second Amendment work in Heller.  That fact alone is not especially notable, but I could not help but notice that the panel seems almost gleeful to reject a Second Amendment claim.  The Seay opinion works hard to dodge an appeal waiver in order to address the Second Amendment merits, and then it has this to say (with lots and lots of cites omitted):

Following Heller, many defendants have argued that 18 U.S.C. § 922(g), or some subsection thereof, violates the Second Amendment. To date, none have succeeded.  For example, we have upheld the constitutionality of § 922(g)(1) (felon in possession).  Our sister circuits have upheld the constitutionality of § 922(g)(1), as well as § 922(g)(4) (persons committed to mental institutions or adjudicated as a mental defective) and § 922(g)(9) (persons convicted of a domestic-violence misdemeanor)....

Turning to the subsection at issue here, § 922(g)(3) makes it unlawful for anyone “who is an unlawful user of or addicted to any controlled substance” to possess a firearm....  Following Heller, one circuit and several district courts have upheld § 922(g)(3) against Second Amendment attack....

Nothing in Seay’s argument convinces us that we should depart company from every other court to examine § 922(g)(3) following Heller.  Further, § 922(g)(3) has the same historical pedigree as other portions of § 922(g) which are repeatedly upheld by numerous courts since Heller.  See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213.  Moreover, in passing § 922(g)(3), Congress expressed its intention to “keep firearms out of the possession of drug abusers, a dangerous class of individuals.”  United States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010), pet. for cert. filed, 78 U.S.L.W. 3731 (U.S. June 1, 2010) (No. 09-1470).  As such, we find that § 922(g)(3) is the type of “longstanding prohibition[] on the possession of firearms” that Heller declared presumptively lawful.  See128 S. Ct. at 2816-17.  Accordingly, we reject Seay’s facial challenge to § 922(g)(1).

September 8, 2010 at 12:02 PM | Permalink


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Is that glee or exasperation? The Heller opinion expressly says it is not opening the door to claims such as this, yet they keep coming.

Posted by: Kent Scheidegger | Sep 8, 2010 4:58:56 PM

this is pitiful and not news now if they ACCEPTED ONE maybe it would be news but as it sits now...there is still no real 2nd amendment for a large majority of LEGAL AMERICAN CITIZENS.

Posted by: rodsmith | Sep 9, 2010 1:43:36 AM

I agree with Kent Scheidegger: exasperation is more the word.

I don’t blame defense lawyers for filing these appeals; it’s their job to throw the occasional “Hail Mary pass.” But this blog has repeatedly suggested that they might have a valid point, when Heller itself suggested strongly that they did not.

Posted by: Marc Shepherd | Sep 9, 2010 9:30:36 AM

Very few thought defendants complaining about the unconstitutionality of the operation of the federal guidelines thought they might have a valid point until SCOTUS in Blakely and Booker decided that they did --- but only after 15+ years of sentencing under that system.

Indeed, not long ago it would have been arguably frivolous to bring ANY individual Second Amendment claim in the lower courts (save perhaps in the Fifth Circuit). But, thanks to SCOTUS's work in Heller and McDonald, these claims are viable.

I have not been surprised that these claims kept getting rejected by lower courts, though I am intrigued (and somewhat surprised) how slow the litigation process has been after Heller and how little interest SCOTUS seems to have had so far in exploring and explaining the contours of the fundamental right it recognized back in 2008.

Especially now that the incorporation issue has been settled, I am hopeful that SCOTUS will take up some of these 922(g) cases, especially on issues not clearly covered by the Heller dicta (like the 922(g)(9) issue).

Posted by: Doug B. | Sep 9, 2010 10:41:05 AM

It's an issue of preservation. Defense counsel are almost required to raise and preserve these issues, in order to avoid a procedural default should the law change.

In the past month, the Eighth Circuit has also rejected a career criminal habeas attack on a prior conviction, based on Begay, because the defendant failed to raise and preserve the issue on direct review. The law prior to Begay clearly foreclosed the claim. Defense counsel cannot be deemed ineffective for failing to make arguments that are contrary to existing circuit precedent, or for failing to anticipate a change in the law. As a result of the combination of these laws, attorneys would seem to be required to raise every claim, no matter how improbable or legally unsupported at the time, to preserve the issue for their clients.

Posted by: Bill B. | Sep 9, 2010 10:46:03 AM

Given that, should SCOTUS declare the possession laws unconstitutional, it would likely not affect the ability to seek relief. Unlike Begay, which involved a guidelines and statuary interpretation law change, habeas law permits a claim if the law change is revolves around a constitutional right. But procedural defaults are very sticky. If I were a defense attorney, and smart, I wouldn't risk the defendant "losing out" on an issue for the sole reason that I failed to raise it.

Defense attorneys walking a thin line between annoying and cautious should err on the side of their clients.

Posted by: Bill B. | Sep 9, 2010 10:55:33 AM

Kent -- "The Heller opinion expressly says it is not opening the door to claims such as this, yet they keep coming."

Maybe these claims keep being raised because Scalia's dicta defies reason. Yes, I said "Scalia's dicta DEFIES REASON!" The (not all that) longstanding prohibitions were put in place prior to the SCOTUS recognizing that the 2nd amendment is based on the “inherent right of self-defense” which “belongs to all Americans”, yet, according to the dicta, the prohibitions are somehow undeserving of any scrutiny in this new light.

How can anyone argue that felons don't have the right to self defense? No law written by the hand of man can EVER strip a man of his natural right to defend his person, loved ones, or property. Scalia's dicta is hogwash, malarkey, bull pucky. You know it, I know it, the defense attorneys know it, these judges *should* know it, yet that one line of dicta allows them to ignore what's right and keep their pretty little house of cards standing.

And you wonder why this issue keeps being raised...

Posted by: DanF | Sep 9, 2010 11:32:05 AM

Calling the drug user in possession provision a longstanding prohibition and relying on congressional intent to limit an enumerated constitutional right is pure sophistry. If congress passed a law limiting free speech, and evidenced an intent to limit "dangerous persons" from speaking out it would get laughed out of the courtroom. And contrary to Mr. Scheidegger's comments, Heller's dicta applied to felons and persons with mental health issues. It didn't say a darn thing about someone who occassionally smokes pot (which is all the case law requires).

Posted by: KRG def attny | Sep 9, 2010 12:22:51 PM

KRG --

If your argument is as strong as you say, quit with the blog complaints and go win your case.

P.S. The way to avoid the adverse consequences of smoking pot is to stop smoking pot. It's not that hard.

Posted by: Bill Otis | Sep 9, 2010 5:07:06 PM


But what if you are "addicted" to pot? Once established, can that condition ever lapse? (Cf. 12-Step/medical establishment doctrines characterizing addiction as a permanent condition, regardless of length of abstincence.)

If you conquer your will and remain abstinent for the rest of your life, at what point does this vague statute allow you to once again possess a firearm?

Posted by: Anon | Sep 13, 2010 1:01:01 PM

Same Anon again:

Having said what I just said, at least (g)(3) addresses a current/persisting condition. And thus, my questions about the "addiction" language notwithstanding, atleast you have some hope of voluntarily changing and getting out from under (g)(3)'s restrictions. I'm actually more concerned with the constitutionality of (g)(9), which institutes an irrevocable, lifetime forfeiture of a constitutional right based on a past misdemeanor conviction (at the time of which it is quite likely you were not informed of such forfeiture).

Given the vast and multivarious universe of reasons for which one might plead guilty to a no-time misdemeanor -- many of which are unrelated to the existence of evidence proving guilt beyond a reasonable doubt -- I don't see how (g)(9) can survive in the long term. Eventually, some good lawyers will develop the facts to show how DV misdemeanor cases work in practice (e.g., the in-some-respects laudable but reliability-comprising practice of police officers reflexively arresting and charging both parties upon arriving at the scene of a domestic dispute), and the Court will have to take its head out of the sand on this issue. If I were these lawyers, I would be looking to file a declaratory judgment action on behalf of a female plaintiff who decades ago was charged in such a "lock them both up" situation and pled to 1 day time served, and who currently is protected by a restraining order against either the same or a different potentially violent person and wants a gun for protection in case he violates the restraining order, but needs a court ruling that the application of (g)(9) would be unconstitutional as applied to her situation.

Posted by: Anon | Sep 13, 2010 1:03:06 PM

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