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March 4, 2011

Third Circuit thoughtfully considers and rejects as-applied Second Amendment challenge to § 922(g)(1)

The Third Circuit today has handed down a very interesting opinion in US v. Barton, No. 09-2211 (3d Cir. Mar. 4, 2011) (available here), concerning a Second Amendment challenge to the federal crime of felon-in-possession under 18 U.S.C § 922(g)(1). Here is just one of the many interesting passages from the opinion:

To raise a successful as-applied challenge, Barton must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections.  For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.  The North Carolina Supreme Court did just that in Britt v. State, 681 S.E.2d 320 (N.C. 2009), finding that a felon convicted in 1979 of one count of possession of a controlled substance with intent to distribute had a constitutional right to keep and bear arms, at least as that right is understood under the North Carolina Constitution. Id. at 323.

Unlike the defendant in Britt, Barton fails to develop the factual basis for his as-applied challenge. Barton does not argue that his predicate offenses make him no more likely than the typical citizen to commit a crime of violence, nor could he have done so persuasively in light of the facts of his case.  Courts have held in a number of contexts that offenses relating to drug trafficking and receiving stolen weapons are closely related to violent crime....  Moreover, the record indicates that Barton has not been rehabilitated, as he recently admitted to selling a firearm with an obliterated serial number to a confidential police informant.  Because Barton has failed to demonstrate that his circumstances place him outside the intended scope of § 922(g)(1), we find no error in the District Court’s dismissal of his as-applied challenge.

March 4, 2011 at 02:46 PM | Permalink

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Comments

well if this is true!

"To raise a successful as-applied challenge, Barton must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections."

He wins AUTOMATICALLY since up till 1960's and the killing of JFK there WERE NO bars to the second amendment for ANYONE

Posted by: rodsmith | Mar 5, 2011 1:35:39 AM

So felons MIGHT have a right to own a gun if they can prove (presumably after they've been convicted for owning one) they are no more dangerous than ordinary law-abiding citizens?

How useless is that?

Or is it overly cynical to imagine prosecutors, trial judges and appellate courts reasoning that those who would violate felon-in-possession laws -- non-violent prior offenses or not, old crimes or not -- have nonetheless broken yet another law and thereby re-branded themselves as threats to public safety?

In other words, Catch 22...unless of course enough members of Congress brave the demagogue gauntlet by stepping forward to restore gun rights to non-violent, geriatric ex-cons...you know, the democratic process Bill Otis is always assuring us is there to right wrongs.

Posted by: John K | Mar 5, 2011 10:04:02 AM

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