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January 4, 2012

Fourth Circuit suggests people must be "responsible" to get full Second Amendment protection

The Fourth Circuit has an interesting and notable Second Amendment ruling today in US v. Chapman, No. No. 10-5071 (4th Cir. Jan. 4, 2012) (available here). Here is how the opinion begins, the passage that prompts the title of this post, and the ends of the opinion:

Section 922(g)(8) of Title 18 of the United States Code prohibits a person who is subject to a domestic violence protective order issued under certain specified circumstances from, inter alia, possessing a firearm or ammunition in or affecting interstate commerce. 18 U.S.C. § 922(g)(8). The sole issue raised on appeal by Ronald Chapman (Chapman) is whether his conviction on one count of violating § 922(g)(8) survives his as-applied constitutional challenge under the Second Amendment, U.S. Const. amend. II.  For reasons that follow, we affirm the judgment of the district court [which rejected the defendant's Second Amendment claim]....

Chapman’s claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense. Assuming arguendo that Chapman was a law-abiding citizen at the time he possessed the six firearms and 991 cartridges of ammunition set forth in the indictment, he was, without a doubt, not a responsible citizen by virtue of: (1) a judicial finding that he likely committed domestic abuse; (2) his engaging in behavior causing him to be judicially prohibited for 180 days from using, attempting to use, or threatening to use physical force against his intimate partner that would reasonably be expected to cause bodily injury; (3) his serious attempts at suicide using firearms in the very home in which he claims to have possessed such firearms for self-defense and his endangering the life of his ex-wife in the process; and (4) his discharge of a firearm out of the bedroom window in the direction of his ex-wife.   Accordingly, we conclude that intermediate scrutiny is the appropriate standard of scrutiny for Chapman and similarly situated persons....

We also recognize that the prohibitory net cast by § 922(g)(8)(A)-(B) and (C)(ii) may be somewhat overinclusive given that not every person who falls within in it would misuse a firearm against his own child, an intimate partner, or a child of such intimate partner, if permitted to possess one. This point does not undermine the constitutionality of § 922(g)(8)(A)-(B) and (C)(ii), however, because it merely suggests that the fit is not a perfect one; a reasonable fit is all that is required under intermediate scrutiny....

For the reasons stated, we hold that § 922(g)(8)(A)-(B) and (C)(ii), as applied to Chapman, satisfies the intermediate scrutiny standard in analyzing his Second Amendment challenge to such statute. We, therefore, affirm the judgment of the district court.

This ruling just further confirms my view that the Second Amendment right to keep and bear arms is a quirky one among those rights expressly recognized in Bill of Rights.  I doubt that a court would hold that someone could, simply by virtue of being subject to a domestic violence protective order, be subject to federal criminal prosecution for, say, just going to church or writing a book or exercising other First Amendment rights.  Perhaps more worrisome for those who care about gun rights, I wonder if and when folks deeply committed to gun control might claim that persons who are, say, unwilling to register their guns with the authorities are not responsible citizens entitled to full Second Amendment protection.

January 4, 2012 at 08:41 PM | Permalink

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hmm

"This ruling just further confirms my view that the Second Amendment right to keep and bear arms is a quirky one among those rights expressly recognized in Bill of Rights."

It's quirky only because complete IDIOTS like like judges and the media have made it so! funny how the MAIN counterbalance placed in that document to help CONTROL the reach of our NEW EXPERIMENTAL govt! seems to have all these little "catches" that would be LAUGHED out of court if applied to ANY of the others!

Posted by: rodsmith | Jan 5, 2012 1:24:43 AM

A Colt .45 M1911 I have is registered, voluntarily by my late father ≈1950s.

Proper gun control can save intended victims from wannabe predators, as the young widowed mother demonstrated the other day in OK, bless her ♥.

Posted by: Docile Jim Brady | Jan 5, 2012 7:53:22 AM

' I doubt that a court would hold that someone could, simply by virtue of being subject to a domestic violence protective order, be subject to federal criminal prosecution for, say, just going to church or writing a book or exercising other First Amendment rights.'
Maybe because a person accused of domestic violence can not kill someone by exercising their first amendment rights.

' I wonder if and when folks deeply committed to gun control might claim that persons who are, say, unwilling to register their guns with the authorities are not responsible citizens entitled to full Second Amendment protection.'
And that is wrong because? The fact of the matter is that EVERY right in the bill of rights have exceptions and limits. For example, human sacrfices are not allowed for religous ceromonies. A reporter can not commit libel.Reasonable gun control laws, like registering firearms make sense and if a person does not register their firearms, perhaps their second amendment protections should be limited.

I am not saying that people should not be allowed to own guns. But when you consider that every rights have some regulations, gun regulations are not unreasonable.

Posted by: jim | Jan 5, 2012 8:48:49 AM

DB says: This ruling just further confirms my view that the Second Amendment right to keep and bear arms is a quirky one among those rights expressly recognized in Bill of Rights. I doubt that a court would hold that someone could, simply by virtue of being subject to a domestic violence protective order, be subject to federal criminal prosecution for, say, just going to church or writing a book or exercising other First Amendment rights.

I think you have this wrong. The problem is not that the government will prosecute a person for writing a book, etc., but that the other fundamental rights will be restricted and made available to "responsible" persons. The government can restrict free speech, free exercise and the like for classes of people in ways that fall far short of criminal prosecution.

Once the court recognizes a fundamental individual right to bear arms for self defense within the home, and once the court decides to restrict that right to only those who are "responsible," it is a very small step indeed to say that other fundamental rights can likewise be restricted. Free speech, for example, is a generally available right, not one restricted to those persons deemed to be "responsible." The same is true for free exercise, the right to a jury trial, the right to counsel and so on.

Jim says, "Maybe because a person accused of domestic violence can not kill someone by exercising their first amendment rights."

A person cannot kill somebody be exercising their 2nd Amendment rights either, because Heller extends the 2nd Amendment to traditionally lawful purposes such as use within the home for self-defense. The Second Amendment does not protect gun possession for unlawful purposes (like murder). So just as the use of words to incite violence are not First Amendment protected, the use of a gun for murder is not Second Amendment protected.

Posted by: C | Jan 5, 2012 12:29:21 PM

hmm

"I think you have this wrong. The problem is not that the government will prosecute a person for writing a book, etc., but that the other fundamental rights will be restricted and made available to "responsible" persons. The government can restrict free speech, free exercise and the like for classes of people in ways that fall far short of criminal prosecution.

Once the court recognizes a fundamental individual right to bear arms for self defense within the home, and once the court decides to restrict that right to only those who are "responsible," it is a very small step indeed to say that other fundamental rights can likewise be restricted. Free speech, for example, is a generally available right, not one restricted to those persons deemed to be "responsible." The same is true for free exercise, the right to a jury trial, the right to counsel and so on.

Jim says, "Maybe because a person accused of domestic violence can not kill someone by exercising their first amendment rights."

A person cannot kill somebody be exercising their 2nd Amendment rights either, because Heller extends the 2nd Amendment to traditionally lawful purposes such as use within the home for self-defense. The Second Amendment does not protect gun possession for unlawful purposes (like murder). So just as the use of words to incite violence are not First Amendment protected, the use of a gun for murder is not Second Amendment protected."


BINGO you hit it right on the head!

Posted by: rodsmith | Jan 5, 2012 1:32:23 PM

as for this bit of stupidity from jim!

"' I wonder if and when folks deeply committed to gun control might claim that persons who are, say, unwilling to register their guns with the authorities are not responsible citizens entitled to full Second Amendment protection."

Guess that means all those people WHO WROTE THE DAMN THING were not so-called "responsible" citizens and therefore NOT entitled to the protections of the CONSTUTION THEY WROTE!

since NONE of thiers were REGISTERED!

Posted by: rodsmith | Jan 5, 2012 1:34:26 PM

'as for this bit of stupidity from jim!
"' I wonder if and when folks deeply committed to gun control might claim that persons who are, say, unwilling to register their guns with the authorities are not responsible citizens entitled to full Second Amendment protection."

Guess that means all those people WHO WROTE THE DAMN THING were not so-called "responsible" citizens and therefore NOT entitled to the protections of the CONSTUTION THEY WROTE!

since NONE of thiers were REGISTERED!
'

Your personal and unnecessary insult aside, the simple fact of the matter is things change. Back then, there were no gun registeration laws. So they were not responsible.
Now people realize that some gun control is necessary recognize that guns should be registered. So people who do not register there guns today are irresponsible.

Posted by: jim | Jan 5, 2012 3:10:40 PM

Don Kates, who defended gun rights long before Heller, noted the felony exception. There isn't a felony exception for going to church or reading a book, though there is one for voting, which sometimes is cited as a type of 1A right (e.g., a means to petition the government). Also, those on parole or probation have various limits on their ability to associate with certain people or certain places. An order of protection limits 1A rights in that sense too.

The word "responsible" is a term of art. And, when historically, people had to come with their gun to the muster every year, why is registration a problem? Perhaps, "qualifications on the commercial sale of arms" is a problem too? The RKBA is different in some ways to 1A rights. Five year olds can pray and buy a book. Does that mean it's a problem that they might not be able to buy a gun?

Posted by: Joe | Jan 5, 2012 7:51:03 PM

hmm

i will give you this one jim

"the simple fact of the matter is things change."

Of course the last time i looked if you wanted to change a CONSTUTIONAL AMENDMENT...you passed a NEW ONE! law does NOT trumpt CONSTUTION!

since IT says everyone has the right to KEEP an BEAR ARMS. kinds of leaves most of the laws passed since the 1963 jfk kiling in the dust!

Posted by: rodsmith | Jan 6, 2012 1:13:28 AM

as for this statment!

"Now people realize that some gun control is necessary recognize that guns should be registered."

WHAT people would that be? Maybe i think THOSE people have a screw loose! What makes their opinion better than those so say the laws are ILLEGAL?

thier JOB?

horse pucky! last time i looked WE created the govt to SERVE US! sorry my employees don't get to overrule MY opinion!

in a case like this were we are talking about a CONSTUTIONAL AMENDMENT the ONLY way i consider thier OPINION legal is when it is backed up with a NATIONWIDE vote ON the subject via a CHANCE to the CONSTUITON!

Posted by: rodsmith | Jan 6, 2012 1:16:54 AM

'in a case like this were we are talking about a CONSTUTIONAL AMENDMENT the ONLY way i consider thier OPINION legal is when it is backed up with a NATIONWIDE vote ON the subject via a CHANCE to the CONSTUITON!
'
No we do not. EVERY right has limits. Freedom of Speech does not give you the right to incite a riot or commit libel. Freedom of religion does not give you the right to commit human sacrifice. What is it about the 2nd amendment that makes it excempt from this.
And things do change with respect to these limitation.

Posted by: jim | Jan 6, 2012 8:32:55 AM

Maybe I'm cynical, but from living here, I believe that the court just ruled that no one has full Second Amendment rights.

Posted by: virginia | Jan 6, 2012 9:02:47 AM

'Maybe I'm cynical, but from living here, I believe that the court just ruled that no one has full Second Amendment rights.'
Just as no one has full 1st amendment rights, 4th amendment rights, etc. Every right has some limits attached to them.

Posted by: jim | Jan 6, 2012 10:42:08 AM

hmm

"No we do not. EVERY right has limits. Freedom of Speech does not give you the right to incite a riot or commit libel. Freedom of religion does not give you the right to commit human sacrifice. What is it about the 2nd amendment that makes it excempt from this."

well let's see if you incite a riot you HURT people....last time i looked that was a crime. Libel is of course also a SEPERATE crime of lieing about someone to cause them DAMAGE...again a CRIME. Same with human sacrifice...last time i looked that was MURDER hell even if you manage to brainwash the individual so they volunteer like the nuts who followed jim jones into death that is still a SEPERATE crime.

so as far a i'm concerted the 2nd works the same way. IF you use the gun to COMMIT a crime PUNISH the crime and DARN! i think we alrady HAVE LAWS that cover that! Not a thing wrong with them. BUT to try and punish people for exercizing thier LEGAL CONSTUTIONAL RIGHT to own and use a firearm is simply CRIMINAL!

Posted by: rodsmith | Jan 6, 2012 10:45:53 AM

.well let's see if you incite a riot you HURT people....last time i looked that was a crime. Libel is of course also a SEPERATE crime of lieing about someone to cause them DAMAGE...again a CRIME. Same with human sacrifice...last time i looked that was MURDER hell even if you manage to brainwash the individual so they volunteer like the nuts who followed jim jones into death that is still a SEPERATE crime.'
People have used the 1st amendment to try and protect themselves from criminal prosectution for various offenses. Sometimes they work, sometimes they do not. IOW, there are limits to rights in the constiution.

'BUT to try and punish people for exercizing thier LEGAL CONSTUTIONAL RIGHT to own and use a firearm is simply CRIMINAL!'
Sorry, but how exactly do gun licensing and gun registration laws punish people for owning a gun.
I am not saying people should be punished owning a gun. All I am saying is that gun control does not provide a serious infringement on the second amendment.

Posted by: jim | Jan 6, 2012 11:29:06 AM

Jim, I know that. The cynical part is thinking that no one who lives in the Fourth Circuit is "responsible."

Posted by: virginia | Jan 6, 2012 11:50:59 AM

well jim last time i looked at the number of countries that STARTED with gun control laws...then moved to REGISTRATION then once they figured they had them all REGISTERED moved to CONFISCATION.

sorry you can take your camel nose and lose it!

Posted by: rodsmith | Jan 6, 2012 3:28:55 PM

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