Sentencing Law and Policy

It is officially time for Second Amendment fans to start supporting NBA's Delonte West

This local article from Maryland, which is headlined "Cavs Delonte West Faces Weapons Charges," reports that a prominent NBA player is now officially facing state criminal charges for posessing guns in self defense.  Here are the basic legal details:

Prince George’s County Grand Jury has returned an eight count indictment against Cleveland Cavaliers Guard Delonte West.  West is charged with transporting concealed weapons.

Police say the former Eleanor Roosevelt High School basketball star was found with two loaded pistols and a shot gun after being pulled over on the Beltway September 17th.  Police say the Cavaliers guard was riding a three wheeled motorcycle when he cut an officer off on the outer loop near Central Avenue.  On the side of the road police say West admitted he was armed....

"These charges carry up to three years in jail for each offense,” said State’s Attorney Glenn Ivey. “So potentially he could be looking at some jail time here... I don't know that the sentencing guidelines are going to require that but we'll have to see how that plays out over time."

Ivey says West has not yet hired an attorney to represent him.  The State’s Attorney says he expects an early January trail date will be set.  West has not commented on his arrest but his father did, telling reporters in September his son was protecting himself from “a lot of not too nice people out there.”

Delonte West has said he suffers from Bipolar disorder.  He left training camp last year to get treatment for depression.  West, who could still face a league suspension over the charges in Maryland, made his season debut during Saturday night's 90-79 win against Charlotte, scoring 13 points in 24 minutes.

This Washington Post account of the indictment provides more of the legal particulars and also spotlights why West need to be seriously concerned about facing prison time:

In addition to the weapons offenses — each of which is a misdemeanor carrying a maximum penalty of three years in prison — the grand jury also indicted West, 26, on one count each of reckless driving and negligent driving.

Prince George's prosecutors routinely seek jail time for people convicted of weapons charges, even first-time offenders.  State's Attorney Glenn F. Ivey said West's case will be handled no differently than any other.

I trust that West has the resources to hire a first-rate criminal defense attorney.  I sincerely hope that his attorney(s) will have the insight and courage to realize that the Supreme Court's ruling and reasoning in Heller provide a plausible Second Amendment claim for West if he truly was keeping and bearing arms for personal self defense when pulled over by the police.

Some related posts on Delonte West's situation and other celebrity gun possession cases:

• Another prominent athlete presents another potential Second Amendment test case
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
• Why Second Amendment supporters need to be helping out Plaxico Burress
• "In U.S., Record-Low Support for Stricter Gun Laws"
• Rapper Lil Wayne cops a plea to New York gun possession charge

Interesting debate over "Guns as Smut" thanks to Columbia Law Review

The October 2009 issue of the Columbia Law Review has an interesting article by Darrell A.H. Miller, which is titled "Guns as Smut: Defending the Home-Bound Second Amendment." Here is a synopsis:

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms.  But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for “future evaluation.”  This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment right to keep and bear arms for self-defense the same as the right to own and view adult obscenity under the First Amendment — a robust right in the home, subject to near-plenary restriction by elected government everywhere else.

In addition, the Sidebar feature or the CLR has this commentary about the article from Eugene Volokh.  His response, which is titled simply "The First and Second Amendments," makes this key point:

The premise of the Court’s obscenity decisions is that obscenity lacks constitutional value without regard to the place in which it may be present, though it may not be suppressed via intrusions into the home.  That premise does not extend to private gun ownership under Heller.

And naturally Guns as Smut’s unsound premise leads to unsound results.  If guns were really like obscenity, the government would be free to ban the buying of guns and not just their public possession.

Professor Miller gets in a final word through this short Sidebar reply.

UPDATE:  Folks can access the full draft of "Guns as Smut" at this SSRN link.

Rapper Lil Wayne cops a plea to New York gun possession charge

As detailed in this AP article, which is headlined "Lil Wayne pleads to attempted gun possession," New York's tough (and arguably unconstitutional) gun possession prohibition has brought down another celebrity.  Here are the basics:

The Grammy-winning rapper Lil Wayne pleaded guilty to attempted weapon possession on Thursday, and expects to receive a one-year jail sentence.  He previously had pleaded not guilty to illegal gun possession charges that carried at least 3 1/2 years in prison upon conviction.

Lil Wayne remains free on bail while awaiting his February sentencing. The somber-looking rapper did not speak as he left court.  Police said a gun was found on his tour bus in Manhattan in 2007....

Police pulled over Lil Wayne's tour bus in Columbus Circle on July 22, 2007. They said they had seen and smelled marijuana smoke wafting out the door before the bus left a concert venue minutes earlier.  Police said that as an officer approached, the rapper tossed away a Louis Vuitton bag containing a gun.

With so much legal uncertainty in the wake of the Supreme Court's Heller decision, I remain puzzled why prominent defendants like Plaxico Burress and Lil Wayne are apparently not even trying to press Second Amendment defenses before copping pleas that include significant jail time.  Though these defendants might not ultimately prevail on such claims, I do not fully see the down side of raising constitutional concerns in the hope of perhaps securing a more favorable plea deal.

Some related posts on the celebrity gun possession cases:

• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
• Why Second Amendment supporters need to be helping out Plaxico Burress
• Another prominent athlete presents another potential Second Amendment test case
• "In U.S., Record-Low Support for Stricter Gun Laws"

Fifth Circuit (properly) dodges whether federal prohibition on gun sale to a 19-year-old is constitutional

Thanks to this post at The Volokh Conspiracy, I see that the Fifth Circuit yesterday issued a brief ruling in US v. Bledsoe, 08-51217 (5th Cir. Oct. 20, 2009) (available here), in which a 19-year-old defendant had pled guilty to paying a third-party to purchase a gun for her from a licensed dealer because she was prohibited by federal law from buying a gun until age 21.  Here is the notable part of the opinion for Second Amendment fans:

Bledsoe, who was nineteen at the time of the purchase, argues that the proscription in § 922(b)(1) on the sale of handguns by federally-licensed dealers to people under twenty-one violates her Second Amendment individual right to keep and bear arms, as recently recognized in District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008).  Bledsoe further argues that the overall age scheme in § 922 violates the equal protection component of the Due Process Clause of the Fifth Amendment.

We do not need to reach the substance of Bledsoe's arguments.  Bledsoe is not being charged with violating § 922(b)(1), but of conspiring to make a false material statement in the purchase of a firearm, which she admitted doing.  The Supreme Court has stated that "a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit.  One who elects such a course as a means of self-help may not escape the consequences by urging that [her] conduct be excused because the statute which [s]he sought to evade is unconstitutional."  Dennis v. United States, 384 U.S. 855, 867 (1966).

The Fifth Circuit ruling on the merits seems spot-on, but it also suggests that it is only a matter of time before a sympathetic 20-year-old (perhaps one who serves as a member of our military reserves) with a helpful lawyer makes a direct attack (perhaps in civil suit seeking a declaratory judgment) on the overall age scheme in § 922.  Indeed, I am a bit surprised that I've not seen this issue litigated before, though perhaps there are lower court cases that just have not yet produced a ruling.

Of course, the really hard broader question after Heller is what is the age at which the government can completely prohibit gun possession.  Though many cases hold in various settings that juveniles get reduced rights relative to adults, I do not think there are too doctrines which make an important constitutional right completely unavailable to teenagers.  At some point, the Supreme Court is surely going to have to address this issue (though probably not until most persons who were teenagers at the time of Heller are well into adulthood).

Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?

The question in the title of this post is the question that I will be asking the students in my Second Amendment seminar tomorrow.  I think it is a good question without an obvious answer, and one that I suspect is being given some thought by some folks now working on merits or amicus briefs in the McDonald case.  Any astute thoughts, dear readers? 

A few related new and old Second Amendment posts:

• What is the best argument that Heller should only impact the feds? Will it get any votes?
• What state and local issues will be litigated the most if (when?) Heller is incorporated?
• State AGs and the Second Amendment incorporation debate
• "In U.S., Record-Low Support for Stricter Gun Laws"
• What if no lower court judges participate in a "Second Amendment Revolution"?
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• "Does the Second Amendment Bind the States?"
• What might 2009 have in store for . . . Second Amendment jurisprudence?

"In U.S., Record-Low Support for Stricter Gun Laws"

The title of this post is the headline of this news release from the folks at Gallup.  Here are some of the statistical highlights from the latest Gallup poll on these topics:

Gallup finds a new low of 44% of Americans saying the laws covering firearm sales should be made more strict. That is down 5 points in the last year and 34 points from the high of 78% recorded the first time the question was asked, in 1990.

Today, Americans are as likely to say the laws governing gun sales should be kept as they are now (43%) as to say they should be made more strict. Until this year, Gallup had always found a significantly higher percentage advocating stricter laws. At the same time, 12% of Americans believe the laws should be less strict, which is low in an absolute sense but ties the highest Gallup has measured for this response.

These results are based on Gallup's annual Crime Poll, conducted Oct.1-4 this year.

The poll also shows a new low in the percentage of Americans favoring a ban on handgun possession except by the police and other authorized persons, a question that dates back to 1959. Only 28% now favor such a ban. The high point in support for a handgun-possession ban was 60% in the initial measurement in 1959. Since then, less than a majority has been in favor, and support has been below 40% since December 1993.

The trends on the questions about gun-sale laws and a handgun-possession ban indicate that Americans' attitudes have moved toward being more pro-gun rights. But this is not due to a growth in personal gun ownership, which has held steady around 30% this decade, or to an increase in household gun ownership, which has been steady in the low 40% range since 2000.

In light of this data and the trends, it is interesting to speculate whether Heller just represents another example of major modern Supreme Court rulings simply following and reinforcing existing political trends.  It is also interesting to speculate whether post-Heller rulings about gun rights and regulations may alter these long-standard trend lines in any significant way. 

"Does the Second Amendment Bind the States?"

The title of this post is the headline of this effective column at FindLaw by Professor Michael Dorf.  This piece is one of the most effective discussion of the complex and interesting precedents at issue in the Second Amendment incorporation case taken up by the Supreme Court last week.  Here is a paragraph from the start of the commentary:

Last week, the Court announced that it would hear a case, McDonald v. Chicago, posing the question whether the Second Amendment applies to the states and their sub-divisions. In lawyer's jargon, McDonald requires the Court to say whether the Fourteenth Amendment "incorporates" the Second Amendment against the states.  As I shall explain in this column, the case poses an intellectual challenge for the Justices who were in the Heller majority.  To see why, we will need to begin by reviewing the story of how other constitutional rights came to be incorporated against the states.

Some related Second Amendment posts:

• What is the best argument that Heller should only impact the feds? Will it get any votes?
• What state and local issues will be litigated the most if (when?) Heller is incorporated?
• State AGs and the Second Amendment incorporation debate
• Assailing the unjustified Second Amendment limits in Heller
• What if no lower court judges participate in a "Second Amendment Revolution"?
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• What might 2009 have in store for . . . Second Amendment jurisprudence?

Notable (new?) First Circuit opinion on Heller and federal juve crimes and punishment

I just discovered today this notable opinion from the First Circuit concerning the Second Amendment and federal juvenile prosecution and punishment. Strangely, the opinion in US v. Rene E., Juvenile Male, is dated August 31, 2009, but perhaps there was some reason the ruling was not made public earlier. Whatever the backstory, anyone interested in the Second Amendment or federal prosecution of juveniles will want to check out the First Circuit's work in Rene E.  Here is how the opinion starts:

Juvenile Rene E. ("appellant") was charged with possessing a handgun in violation of 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, the charging provision of the Juvenile Delinquency Act. After his motions to dismiss and motion to suppress were denied, he entered a conditional guilty plea. On appeal, he raises constitutional challenges to 18 U.S.C. § 922(x)(2), arguing both that it violates his rights under the Second Amendment, as interpreted by the Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), and that it exceeds Congress's authority under the Commerce Clause. He also challenges the sentence he received under the Juvenile Delinquency Act, arguing that the district court erred in determining the maximum sentence to which a similarly situated adult would be subject under the United States Sentencing Guidelines.

We hold that 18 U.S.C. § 922(x)(2)(A) does not violate the Second Amendment, and we reaffirm our holding in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997), that section 922(x)(2)(A) does not exceed Congress's Commerce Clause authority.  Lastly, because appellant is no longer in detention or under juvenile supervision, we conclude that his sentencing challenge is moot.  Therefore, we affirm.

UPDATE:  Over at Crime & Consequences, Kent here has a notable (and amusing) reaction to the ruling in Rene E.:

Personally, I'd like to see the Commerce Clause challenge go up to the Supreme Court. The peoples of Arkansas and Massachusetts should be able to come to different conclusions regarding whether 17-year-olds can possess handguns.

Perhaps we should also have a limit on the length of statutes so that none will ever need a subdivision (x).

Even Washington Post editorial board supporting Second Amendment incorporation

I just noticed this recent Washington Post editorial on the Second Amendment incorporation issue.  Notably, the piece call for the Second Amendment to be applied to the states, but then also argues for the Amendment to be interpreted to allow lots of local regulation of guns:

Given how the Constitution has evolved, lawyers from both the left and right of the political spectrum will present strong arguments that the Second Amendment applies to state and local government, just as the First Amendment does.  It would seem at least incongruous -- and may ultimately be legally indefensible -- for residents of the District to enjoy constitutional rights that are withheld from people in Chicago or other parts of the country.

But just as in the District, it will be important for the court to recognize that all rights -- including those of free speech and assembly -- are subject to limits. So should be the right to keep and bear arms.  Any Supreme Court ruling should explicitly recognize the authority of state and local governments to craft regulations to best protect their communities. Gun laws that make sense in a densely populated urban area may be unreasonable or unnecessary to protect the public safety of rural residents.  The justices should allow state and local jurisdictions reasonable flexibility; a civil society must be able to balance the rights of individuals with the compelling interest in maintaining public safety.

I believe the Post has long backed gun control measures, and this editorial thus highlights how nobody is likely to fight hard against Second Amendment incorporation.  Rather, after the Supreme Court decides that the Amendment applies to all levels of government, the big fights will be over what sorts of gun regulations are deemed reasonable.  

Some related Second Amendment posts:

• What is the best argument that Heller should only impact the feds? Will it get any votes?
• What state and local issues will be litigated the most if (when?) Heller is incorporated?
• State AGs and the Second Amendment incorporation debate
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller
• What if no lower court judges participate in a "Second Amendment Revolution"?
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• What might 2009 have in store for . . . Second Amendment jurisprudence?

What state and local issues will be litigated the most if (when?) Heller is incorporated?

As suggested in prior posts, the smart money in the wake of the Supreme Court's grant of cert in McDonald is that the Justices will extend its Hellerruling and find Second Amendment rights are fully applicable to states and localities.  Thus, I am already thinking about and wondering what kinds of state and local gun regulations will quickly become litigation hot-spots once the Second Amendment is incorporated. 

This new piece from the Christian Science Monitor, which is headlined "Arizona allows guns in bars. Should any place be off-limits?", reinforces my sense that there are going to be big battles over what are "sensitive places" where gun possession can be banned.  Here is a snippet from the piece:

Arizona will be the 41st state to let bar patrons pack heat (only if they’re not drinking alcohol, however). Meanwhile, the list of places where gun owners can bring their weapons is growing, as the gun lobby increases pressure on statehouses and Congress to broaden Second Amendment rights. “The trend over the last 20 years is more freedom in most states for individuals to carry guns,” says Robert Cottrol, a law professor at George Washington University in Washington.

The issue took on even greater importance Wednesday when the US Supreme Court announced it will hear arguments as to whether a Chicago handgun ban violates the Second Amendment right to bear arms.  The case could have implications for all local gun restrictions, which have been a central tenet of gun control....

In Arkansas, state Rep. Beverly Pyle proposed allowing guns inside places of worship earlier this year. It seems as though the state’s ban will stand, but the issue is percolating. Ken Pagano, a pastor in Kentucky, in June sponsored a bring-your-guns-to-church day. “God and guns were part of the foundation of this country,” Mr. Pagano told The New York Times.

Going forward, gun owners hope to make sure that no place will be off-limits. “My guess is that too that the extent that there are restricted spaces, there will be a movement to push against that,” Professor Cottrol says.

Some related Second Amendment posts:

• What is the best argument that Heller should only impact the feds? Will it get any votes?
• State AGs and the Second Amendment incorporation debate
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller
• What might 2009 have in store for . . . Second Amendment jurisprudence?

What is the best argument that Heller should only impact the feds? Will it get any votes?

How Appealing does an effective job here assembling the early major news coverage of the Supreme Court's decision to grant cert in McDonald v. Chicago, the case concerning whether the Second Amendment as interpreted in Heller is applicable as a limit on state and local gun regulations.  This is big news for lots of reasons, especially because it seem to me all but certain that the Supreme Court will declare Heller applicable to the states.

Indeed, as I have been thinking about this issue in the course of discussing it with student in my Second Amendment seminar, I have had a hard time developing a very strong argument that Heller should only apply to the feds.  Lower courts, understandably, decided against incorporation because they were bound by old precedent that the Second Amendment only applied to the states.  But a majority of Supreme Court can decide to (and seems likely to want to) overrule that precedent, and thus folks who want to limit Heller's reach will need to come up with other arguments.

The problem is, now that all important substantive constitutional rights are thought to constrain all levels of government, how can and should one develop an argument that Heller applies only to the feds.  Of course, proponents of gun control can make strong policy arguments that states and localities should be allowed to make their own distinct gun regulation choices, but are there any really good legal arguments that states and localities should not be subject to the same Second Amendment rules that limit the federal government?  And, moving to predictive mode, can anyone predict whether any Justice will embrace these arguments (as opposed to just contending that Heller was wrong and should not be extended).

SCOTUS cert grants: Guns, sex offenders, and sentencing factors ... oh my!

Reviewing (thanks to SCOTUSblog) the details of the ten cert grants announced by the Supreme Court this morning (basics here and here), I cannot help but feel a bit like a legal Dorothy heading through a jurisprudence thicket on the ways to learn what the Wizards of SCOTUS will have to say on some of the hottest legal topics for sentencing fans.  Specifically, these there grants as described at SCOTUSblog are huge news for anyone involved in modern sentencing law and policy issues:

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Docket: 08-1521
Title: McDonald, et al.  v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Issue:Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

Of course, the Second Amendment incorporation issue is the biggest story with the biggest potential jurisprudential impact.  But I think the outcome of that case is almost a given, as I would be shocked to see the Justices decide Heller only applies to the federal government.  The other cases seem more in play, and how the Justices approach and decide these cases could make them both sleepers for sentencing fans to watch closely.

I will have a lot more to say about both Carr and McDonald in subsequent posts, and I am already looking forward to the discussions and debate both cases are likely to generate in the months ahead.

Ninth Circuit awaits SCOTUS action on Second Amendment incorporation issue

As detailed in this SCOTUSblog post, the Ninth Circuit decided on Thursday to "put on hold its consideration of a case testing whether the Second Amendment right 'to keep and bear arms' restricts laws passed by state and local governments."  Here's more:

After a hearing before an 11-judge en banc Court in San Francisco, the Court issued an order vacating submission of the case of Nordyke et al. v. King et al. (docket 07-15763), until the Supreme Court acts on pending cases raising the same issue.

Earlier, a three-judge panel of the Circuit Court had extended the Second Amendment to the state, county and city level, through the Fourteenth Amendment.  That ruling was vacated when the Circuit Court agreed to reconsider the issue en banc.   The Supreme Court may act as early as next week on one or more of  three pending cases: National Rifle Association v. Chicago (08-1497), McDonald v. Chicago (08-1521), and Maloney v. Rice (08-1592).  All three are scheduled to be considered at next Tuesday’s private Conference.

How Appealing here links to press coverage of the en banc hearing and also to an audio of the oral argument. 

State AGs and the Second Amendment incorporation debate

Thanks to law.com, everyone can check out this very interesting piecefrom a California legal newspaper headlined "With 9th Circuit Set to Hear Firearms Case En Banc, Calif. AG Walks Line on Gun Control."  Here are a few highlights:

A hard-fought firearms case is coming to the 9th U.S. Circuit Court of Appeals for en banc arguments Thursday, with the usual gun groups weighing in as amici on the usual sides.

Though the case arose in Alameda County, Calif., home to California Attorney General Jerry Brown, he hasn't submitted briefs. But in another case across the country, involving the same issue, Brown filed an amicus that has gun control advocates shaking their heads. After the 7th U.S. Circuit Court of Appeals decided that the Second Amendment didn't apply to state or local governments — and therefore upheld a local handgun ordinance — Brown joined those asking the U.S. Supreme Court to review the ruling.

The move throws a spotlight on how Brown, a presumed candidate for the governorship, handles this sometimes socially divisive issue. His 7th Circuit brief disappointed — but didn't surprise — Juliet Leftwich, the legal director of Legal Communities Against Violence in San Francisco. "He just stands in stark contrast to Bill Lockyer, who was an active leader in this area," she said....

Chief Deputy Attorney General James Humes said the Justice Department does plenty to stanch the scourge of guns but simply believes in different approaches to the problem. "I would say Jerry Brown is much more interested in law enforcement than legislation," said Humes.

Under Brown's leadership, Humes said the department has seized 1,194 firearms and arrested 87 individuals on California's list of those prohibited from carrying firearms. Authorities have also nabbed people illegally transporting guns into the state after buying them at shows in Nevada. As for the attorney general's position in the 7th Circuit case, Humes calls it a "common-sense" approach. "The Second Amendment exists, and it will exist whether we like it or not," he said....

According to Humes, the AG didn't weigh in on the 9th Circuit case because he agreed with part of the ruling — the panel had simultaneously affirmed the county's right to regulate guns beyond the home, in sensitive public places. Indeed, Brown argued for similar treatment in his 7th Circuit brief.  The attorney general also held up the 9th Circuit panel ruling as evidence that such high court guidance was necessary.

Beyond raising a variety of issues concerning how Jerry Brown is trying to position himself politically, this article raises in my mind of the interesting challenges that Heller and the Second Amendment incorporation debate create for elected state Attorneys General. 

I would surmise all but a few northern and urban places, it would not be politically wise for a state Attorney General to be vocally opposed to individual gun rights and thus it would not be shrewd to come out publically against incorporation of the Second Amendment.  And yet, I also think that most state Attorneys General realize that there are serious legal and practical headaches if (and when?) the Second Amendment is declared applicable as a constitutional limit on any and all state gun restrictions and regulations.  My guess is that, like AG Brown, most state AG will be inclined to dodge this issue as much as possible while perhaps privately hoping that the Supreme Court refuses to incorporate the Second Amendment.

Some related Second Amendment incorporation posts:

• Seventh Circuit resists extending Second Amendment to the states
• NRA quickly petitions SCOTUS for Second Amendment incorporation
• What might 2009 have in store for . . . Second Amendment jurisprudence?

"Plax prison touchdown"

The title of this post is the headline of this little article in today's New York Post.  Here are the basics:

Plaxico Burress is due to turn himself in at 9:30 a.m. today to begin a two-year prison term. The ex-Giant -- who shot himself in the thigh in a Midtown club last November -- pleaded guilty last month to attempted gun possession to avoid serving a mandatory three years if found guilty of possession.  He bought his gun legally in Florida but lacked a New York license.

His time behind bars could drop to 20 months with good behavior. But the self-inflicted wound cost him the $27 million left on his Giant contract.  And under NFL rules, he can't sign with any team until he's completed his term.

As regular readers know, I think the fact that Plax is willingly serving two years in prison for gun possession without even raising a Second Amendment claim is strong evidence that Heller is unlikely to mean much for most law enforcement purposes for quite some time.  Then again, maybe Delonte West is now poised to be a celebrity spokesperson for the Second Amendment.

Some related posts on the Burress cases:

• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Interesting data on the application of NY gun law for Plaxico's consideration
• Talk of a plea deal to resolve gun charges against Plaxico Burress
• Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver
• Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
• Why Second Amendment supporters need to be helping out Plaxico Burress

UPDATE:  This New York Times article discusses today's events in state court in which Plaxico official received his two-year prison sentence

Another prominent athlete presents another potential Second Amendment test case

Regular readers know that I was disappointed that Plaxico Buress did not assert a serious Second Amendment claim after being charged and prosecuted in New York with serious crimes based on his possession of a gun for personal self-defense (details here and here and here).  Now, as detailed in this Washington Post article, another prominent athlete present another potential Second Amendment test case:

A D.C. area native-turned-NBA player was arrested in Prince George's County on Thursday after a police officer who pulled him over on the Beltway found that he was carrying three loaded guns, authorities said.

Delonte West, 26, a graduate of Greenbelt's Eleanor Roosevelt High School and a guard for the Cleveland Cavaliers, was traveling north on the Beltway in a three-wheeled motorcycle called a Can-Am Spyder when he cut off a Prince George's canine officer near Route 214, authorities said. The officer pulled over West for making an "unsafe lane change," police said, and when the officer approached the motorcycle, West told him he had a handgun in his waistband.

That prompted the officer to call for backup and search West's vehicle. He found three guns -- a Beretta 9mm in West's waistband, a Ruger .357 magnum strapped to his leg and a shotgun in a guitar case slung over his back, said Maj. Andy Ellis, a spokesman for the Prince George's police.

Police charged West with two criminal counts of carrying a handgun for the Ruger and the Beretta, and issued him a traffic citation for driving "in excess of reasonable and prudent speed," court records show. Ellis said West was within his rights to carry the shotgun.

It is not clear why West was so heavily armed or why he was traveling alone in the Largo area at 10 p.m. on a Thursday, Ellis said. West's father, Dmitri West, said, "All I can say is Delonte was looking behind his back and protecting himself." He said his son was looking out for both specific people and because he was generally concerned about his well-being as a high-profile athlete. He declined to say who might be targeting the NBA star. "Bottom line is there's a lot of not-too-nice people out here," Dmitri West said....

Police arrested West and seized his guns and his motorcycle, Ellis said. He was released from jail early Friday on his personal recognizance, court records show. He is scheduled to appear in court Nov. 20.

Though I am not an expert on Maryland law, I think West may only be facing misdemeanor charges and thus West and his lawyers might not need to bring in Heller and the Second Amendment in order to ensure that these gun possession charges go away quickly.  Nevertheless, if Heller stands for the proposition that the Second Amendment protects a persons right to possess guns for self-defense, it seems that West's gun possession might arguably be constitutionally protected.

"Citizens with Guns: Firearms & American Identity"

The title of this post is the title of a new article from Pratheepan Gulasekaram, which seems especially timely in light of the recent presence of gun-toting folks at various health-care town halls last month. Also, as the abstract reveals, the article should also be of interest to anyone concerned with the Heller court's suggestion that all felons can be categorically excluded from the Second Amendment:

This article examines the relationship between firearms and American citizenship, both as a matter of legal status and as a matter of perceived American identity.  To do so, this article will explore the link between guns and citizenship as textual matter, a historical and legal narrative, and a symbolic bond.  First, this paper will examine Heller’s largely unnoticed contention that the Second Amendment benefits only citizens.  Such an inquiry requires a comparative analysis of other provisions of the constitution that similarly enumerate the right of “the people.”  In addition, this article analyzes the historical and legal connection between the right to bear arms and status citizenship, noting the relationship between arms-bearing, racialized conceptions of U.S. nationality, and increasing immigration throughout the country’s history.  To complete the exploration, this paper will also consider the symbolic importance of gun-toting in the American legal and cultural landscape.  Here, the article dissects the manner in which gun-related incidents have been used to code some individuals and circumstances as part of the American narrative, while others are coded as foreign and anathema to the American identity.

Reactions to the NC ruling in Britt felon gun rights case

This new local article, headlined "Felon wins the right to own a gun: Narrow ruling causes big stir," reports on reactions to the North Carolina Supreme Court's ruling in Britt v. State, No. 488A07 (NC Aug. 28, 2009) (available here), that at least North Carolina felons have a state constitutional right to bear arms under the North Carolina Constitution (discussed here). Here are excerpts:

The opinion applied only to Barney Britt, who was convicted of a drug crime in 1979, and it didn't have an immediate effect on the thousands of other felons in the state. Criminal defense lawyers who practice in federal courts said they don't know what effect, if any, the opinion will have on federal rules, which prevent felons from buying and owning weapons except when a state has restored that right....

Though the opinion focused just on Britt's case, both sides of the gun control issue saw the ruling as significant because the state's highest court found that Britt had a right to bear arms that trumped the state's ability to restrict him from owning any weapons.

Advocates spent Monday poring over the 5-2 decision in Britt v. State of North Carolina. The decision was seen as a victory for those who view government restrictions as too strict, while those in favor of tighter gun control described it as an alarming blow. "This has implications beyond just North Carolina," said Robert Levy of the Cato Institute, a Washington-based Libertarian think tank that opposes gun control. "North Carolina has now decided that some felonies are not so serious to result in deprivations of the right to defend oneself."

Roxane Kolar, director of North Carolinians against Gun Violence, said the decision was troubling. "I've never heard of this before, of a felon having an inalienable right to own a weapon," she said. "It's putting a lot of our state gun laws at risk."

The decision could spark a rush to local courthouses as felons try to have their rights to own and store firearms in their homes restored. Those with the best chance would likely be those with cases similar to Britt's; people convicted of nonviolent crimes who had their right to own a gun restored and then taken away with a 2004 law, said Jeanette Doran, a senior staff attorney with the N.C. Institute for Constitutional Law.

Legal e-mail message boards lit up over the weekend, with lawyers swapping tales of clients convicted of felony littering charges then barred from hunting deer for the rest of their lives.

The state legislature may address the issue with a bill introduced for the 2009-2010 session by Rep. Phil Haire, a Democrat from Western North Carolina, that would give limited hunting privileges to nonviolent felons....

The office of N.C. Attorney General Roy Cooper, who defended the state law in the case, declined to comment on the ruling....

Kolar of North Carolinians against Gun Violence expressed concern that judges would be the ones to decide whether felons could own guns, something she says gives too much discretion to the courts. Jim Woodall, the district attorney for Orange and Chatham counties, said he found the opinion worrisome and hoped it wouldn't be applied broadly to others. "They're carving out a one-person exemption," he said.

North Carolina Supreme Court finds state constitutional right for some felons to bear arms

Thanks to this post at The Volokh Conspiracy, which is titled "Felons and the Right To Bear Arms," I discovered that late yesterday the North Carolina Supreme Court ruling in Britt v. State, No. 488A07 (NC Aug. 28, 2009) (available here), that at least North Carolina felons have a state constitutional right to bear arms under the North Carolina Constitution.  Here are a few key passages from the notable (and very important?) ruling:

Article I, Section 30 of the North Carolina Constitution provides, in pertinent part: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”  This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly’s police power, but that any regulation must be at least “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”...

Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff completed his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987.  No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him....

Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of lawabiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....

Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety.  In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.  We conclude that N.C.G.S. § 14-415.1 is an unconstitutional violation of Article I, Section 30 of the North Carolina Constitution as applied to this plaintiff.  As discussed above, pursuant to N.C.G.S. § 14-415.1, the State unreasonably divested plaintiff of his right to own a firearm.  Such action violates plaintiff’s right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution.

Though this ruling is based only on state constitutional law, it raises a host of very interesting questions in the wake of Heller (especially given that the language of the NC constitution is parallel to the language of the Second Amendment).  Let me do just a little issue spotting:

1.  Does this ruling automatically extend to all other NC felons who can show a "history of respect for the law [and] the absence of any evidence of violence" in their lives?  My guess is that a lot of drug and drunk driving felons might reasonably make such a claim; but do they need to go to court to get a formal ruling that they are like Britt?

2.  Because Britt had his civil rights restored under state law, he is no longer prohibited under federal statutory law from possessing a firearm.  But can this ruling help NC felons who don't have their civil rights restored if and when they get charged in federal court with felon-in-possession under federal law?

3.  Will any lower federal courts be moved by the bold and clear assertion in Britt that the NC blanket ban on felon gun possession is "an unreasonable regulation, not fairly related to the preservation of public peace and safety"?   

Are there any must-reads (beyond Heller) for my Second Amendment Seminar?

Regular readers know I am interested in the intersection of the Second Amendment and the criminal justice system in the wake of Heller.  My interest is finding expression this coming fall semester — which starts tomorrow(!) at The Ohio State University Moritz College of Law — through the teaching of a Second Amendment Seminar.

Though I am going to have students help shape the direction and content of the seminar, I want to make sure I cover modern Second Amendment essentials.  But, as I assembled a reading list, I started thinking that the only essential read in the modern corpus is just the Supreme Court's decision in Heller. 

Of course, there are lots of cases and lots and lots and lots of commentary — both pre-Heller and post-Heller — discussing the Second Amendment.  I plan to cover key post-Heller issues like incorporation and standards of review in the seminar, and I will have students read cases and commentaries on these and other topics.  But I am not sure if anything qualifies as a true must-read for discussing and debating the modern Second Amendment other than Heller itself.

Perhaps readers have a different view, and I would be grateful for any input on the topic in the comments.

Cross-posted at LSI