Sentencing Law and Policy

Another good test case for real fans of the Second Amendment

This local story from North Carolina provides more fodder for my view (and hope) that an individual and enforceable Second Amendment right could have lots of unexpected ripples if and when sympathetic felons start demanding that their rights get respected.  Here is the story:

Barney Britt holds a state record for shooting the third largest deer in North Carolina history. Hunting is his passion. "It's the challenge of the hunt," Britt said. But by law, the 46-year-old man from Garner cannot take a shot anymore.

When Britt was 20 years old, he was convicted on a felony drug charge.  He served four months in jail; and as a convicted felon, he was not allowed to carry a gun for five years.

He started hunting again in 1987, and for the next 18 years, he said, he was a law-abiding citizen. But in December of 2004, the state passed a law to conform with federal law, which states that a convicted felon can never again carry a gun. "I feel like I'm being violated and punished all over again," Britt said.

He said there was no appeals process, so he is suing the state to try to get the right back to hunt. The lawsuit is now in the hands of the N.C. Attorney General's Office....

"I think it's a public safety issue," Beth Froehling, public policy specialist with the N.C. Coalition Against Domestic Violence, which supported the change in state law. Despite Britt's nonviolent past, Froehling and other proponents of the law said it was just too difficult to pick and choose which convicted felons should carry a gun and which should not.  "Do we want convicted felons to be allowed to have firearms?" Froehling said.

An irony of this story, among others, is that I believe Britt was violating federal law against felons in possession when he started hunting again in 1987 (unless there is some exception to 18 U.S.C. 922(g) that might apply).  I think this also means that, even if Britt gets some relief in North Carolina, he still has to worry about the feds if he goes out hunting again unless he were to get his conviction expunged.

Some related Second Amendment posts:

• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Get ready for a Second Amendment rumble, defense attorneys
• Imagining post-Heller federal felon-in-possession litigation
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• What might Second Amendment strict scrutiny mean for strict gun laws?
• After 220 years, should the Second Amendment stay minimalist?
• Thoughtful analysis of the realities of Second Amendment litigation

Could an individually enforceable Second Amendment right impact debates over tort liability for guns?

The Second Circuit today issued a split opinion in City of New York v. Beretta, No. 05-6942 (2d Cir. April 30, 2008) (available here) concerning a civil suit against gun manufacturers.  Though the ruling is far afield from core sentencing issues, the decision returns me to my speculation that a pro-gun ruling in the Heller Second Amendment case could change not just the law, but also the politics, surrounding a variety of gun issues, including manufacturer liability. 

Notably, this issue came up during the Q&A in a presentation I gave a few nights ago as part of the wonderful Hoffinger Criminal Justice Colloquium at NYU School of Law.  That presentation, which I titled "The Second Amendment and the Plate Tectonics of Constitutional Criminal Law," developed some of the Second Amendment and sentencing themes I have developed in a number of prior posts.  I am not sure how this Beretta ruling fits into my thinking; it is notable that there is no Heller talk in the decision, though the dissent notably cites the Joseph Heller classic Catch-22.  Also notable are a variety of federal/state and civil/criminal issues developed in all the Beretta opinion.  I was stressing both the importance and volatility of these constitutional "fault lines" in my NYU talk.

Some related posts:

• The Second Amendment and speculating about post-Heller politics
• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Get ready for a Second Amendment rumble, defense attorneys
• Imagining post-Heller federal felon-in-possession litigation
• Criminal mistakes in analysis of Heller hysteria
• Do any Second Amendment amici oppose extreme gun crime sentencing?
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation

The Second Amendment and speculating about post-Heller politics

The folks at Politico have this interesting new piece, headlined "Obama aims for pro-gun vote."  The piece indirectly reinforces my view that the Supreme Court's Heller case could significantly change the politics of gun law debates.  Here are snippets from the article:

Barack Obama [is]... making a play for pro-gun voters in rural Pennsylvania.  By highlighting his background in constitutional law and downplaying his voting record, Obama is engaging in a quiet but targeted drive to win over an important constituency that on the surface might seem hostile to his views....

“Guns are a cultural lens through which they view candidates,” said Jim Kessler, vice president for policy at Third Way, a progressive think tank.  “If you are seen as way off on that issue, then you seem way off on everything.  If you are seen as OK, if the lens is clearer, then they continue to look at you and size you up on other things.”

“For Obama, who is less known and is from Chicago, a city guy and an African American, the feeling is that he is anti-gun,” Kessler continued. “By handling the Second Amendment correctly, he starts to get a hearing among these folks.” 

Obama aides would not discuss the campaign’s strategy.  While the effort so far in Pennsylvania appears modest, it is noteworthy for a race that has largely avoided such direct engagement with gun owners.  The campaign has asked gun rights advocates like state Rep. Dan Surra, a Democrat from rural Elk County with an “A+” rating from the NRA, to form a coalition of supporters who can vouch for Obama.  “It is clear out there that I am for Obama, and they have reached out to me as a sportsman and a gun owner,” Surra said Thursday.  “There has been an outreach to pro-gun legislators, pro-gun people who are sympathetic to Obama’s message.”...

Obama has long backed gun-control measures, including a ban on semiautomatic weapons and concealed weapons, and a limit on handgun purchases to one a month.  He has declined to take a stance on the legality of the handgun prohibition in Washington, D.C., which the U.S. Supreme Court is reviewing, although Obama has voiced support for the right of state and local governments to regulate guns.

In the Senate, he and Clinton broke on one vote, in July 2006. Siding with gun-rights advocates, Obama voted to prohibit the confiscation of firearms during an emergency or natural disaster.  Clinton was one of 16 senators to oppose the amendment.

A two-page white paper on Obama’s website doesn’t mention his voting record.  Instead, he introduces himself as a former constitutional law professor who “believes the Second Amendment creates an individual right, and he greatly respects the constitutional rights of Americans to bear arms.”

“He will protect the rights of hunters and other law-abiding Americans to purchase, own, transport, and use guns for the purposes of hunting and target shooting,” the paper states. “He also believes that the right is subject to reasonable and common sense regulation.” ...

Obama’s approach is similar to one advocated by Third Way, which issued a seven-step blueprint in 2006 to close the “gun gap” with Republicans.  In a memo on its website, the group urges progressives to avoid silence on gun issues, and instead “redefine the issue in a way that appeals to gun owning voters.” ... The National Rifle Association posted an article on its website in February warning members against buying into Obama and Clinton, who were using the “scripted rhetorical tricks in the Third Way playbook to the letter.”

As I have highlighted in prior posts, if (and when?) the Supreme Court concludes in Heller that the Second Amendment protects an individual right to keep and bear arms, the next big legal and political question will be what government regulations are consistent with that right.  And, as I have also highlighted in prior posts, I think the first hot post-Heller topics for federal litigation and debate will be the reasonableness of (1) broad federal laws prohibiting all felons (and domestic violence misdemeanants) from gun ownership and (2) extreme sentencing laws that can add decades to a sentence for possessing a gun in the wrong setting.

I am not sure what the National Rifle Association or the Third Way playbook has to say about these potential post-Heller gun rights/regulation topics.  But my point here is to highlight, yet again, how any pro-individual Second Amendment ruling in Heller could make the legal and political debates over gun rights look a lot different in a few months.

Prior posts on the Second Amendment and post-Heller gun litigation:

• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Get ready for a Second Amendment rumble, defense attorneys
• Imagining post-Heller federal felon-in-possession litigation
• Criminal mistakes in analysis of Heller hysteria
• Do any Second Amendment amici oppose extreme gun crime sentencing?
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?

SCOTUS takes new gun case ... is this a Heller tea leaf?

I am sure regular readers are tired of me linking the Heller Second Amendment case to various sentencing issues, but a new Supreme Court cert. grant today is only going to fuel my gun fires.  Here are the basics from this post at SCOTUSblog:

In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence.  The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship — that is, as a spouse, parent or guardian.

Though it appears that Hayes is only about a technical statutory issue, the case could end up being about a lot more if Heller declares that there is an enforceable individual right to keep a gun.  Here are the key facts in Hayes from the Fourth Circuit opinion on which cert was sought by the Justice Department:

In 1994, [Randy Edward] Hayes pleaded guilty to a misdemeanor battery offense under West Virginia law, in the magistrate court of Marion County, West Virginia (the "1994 State Offense").  The victim of the 1994 State Offense was Hayes's then wife, Mary Ann (now Mary Carnes), with whom he lived and had a child. As a result of the 1994 State Offense, Hayes was sentenced to a year of probation.

Ten years later, on July 25, 2004, the authorities in Marion County were summoned to Hayes's home in response to a domestic violence 911 call.  When police officers arrived at Hayes's home, he consented to a search thereof, and a Winchester rifle was discovered.  Hayes was arrested and, on January 4, 2005, indicted in federal court on three charges of possessing firearms after having been convicted of an MCDV, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).

This fascinating little case should help everyone understand why Solicitor General Paul Clement is justifiably concerned about a broad pro-gun constitutional ruling in Heller.  If the Second Amendment truly protects an individual right to domestic self protection, prosecuting Randy Edward Hayes for having a Winchester in his home seems very constitutionally troublesome.  And, at the very least, if Heller says anything nice about the constitution and gun possession, the doctrine of constitutional doubt ought to impact how the statutory issue in Hayes plays out.

I wonder if the NRA will file a brief on behalf of Randy Edward Hayes in the Supreme Court.  I wonder if VP Dick Cheney will sign a brief including members of Congress on behalf of Randy Edward Hayes in the Supreme Court.  I wonder if any other bloggers will connect the dots between Heller and Hayes like I do.  I wonder if everyone just thinks I'm just a gun-crazy, latte-sipping blogger.

Some recent related posts:

• Get ready for a Second Amendment rumble, defense attorneys
• Imagining post-Heller federal felon-in-possession litigation
• Criminal mistakes in analysis of Heller hysteria
• Do any Second Amendment amici oppose extreme gun crime sentencing?
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?

An interesting historical perspective on Second Amendment rights

As we await a ruling from the Supreme Court in the Heller Second Amendment case, I hope to showcase articles and commentary that provide a distinct perspective on the issues surrounding individual gun rights.  A great example of such commentary is this Washington Post piece by Chuck Lane, headlined " To Keep and Bear Arms."   Here is how this strong piece starts and ends:

Nearly 135 years ago, the United States experienced what may have been the worst one-day slaughter of blacks by whites in its history.  On April 13, 1873, in the tiny village of Colfax, La., white paramilitaries attacked a lightly armed force of freedmen assembled in a local courthouse.  By the time the Colfax Massacre was over, more than 60 African American men lay shot, burned or stabbed to death.  Most were killed after they had surrendered.

Though it caused a national sensation in post-Civil War America, this horrible incident has been largely overlooked by historians. It deserves fresh study today not only to illuminate the human cost of Reconstruction's defeat but also to enrich our understanding of constitutional history.  Some of the most relevant lessons relate to the issue at the heart of District of Columbia v. Heller, the case on the D.C. gun control law currently before the Supreme Court: whether the Constitution guarantees an individual right to keep and bear arms.

During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction.  Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them to vote.  And, to clarify blacks' newly secured freedom, Congress wrote laws identifying the specific rights of individual U.S. citizens.  One of these was the right to have guns.

Before the Civil War, gun ownership was a prerequisite not only of militia service but also of participation in sheriffs' posses and for personal defense.  But it was a right for whites only. Southern states forbade slaves to own guns, lest they revolt. (Free blacks, in the North and South, could sometimes have guns under tight restrictions.)  After the Civil War, the same Congress that made African Americans citizens through the 14th Amendment considered the antebellum experience and concluded that equal access to arms was a necessary attribute of blacks' new status....

In the D.C. gun case, the Supreme Court should find that local governments may enact reasonable and necessary restrictions on dangerous weapons.  To be sure, if the justices also back an individual right to keep and bear arms, that will be harder for legislators to do. But as a matter of historical interpretation, the court would be correct.

Critically, Lane is a lot more than an armchair historian here: he has just completed this new book, titled "The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction."

Imagining post-Heller federal felon-in-possession litigation

I want to unpack a little more fully the basis for my post-Heller argument post, titled "Get ready for a Second Amendment rumble, defense attorneys."  That post was largely inspired by the fact that, as Lyle Denniston puts it here, expected Heller swing voter "Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense."  As I suggested here yesterday, the impact of Heller on federal felon-in-possession prosecutions could be significant if an enforceable Second Amendment right is conceptually premised on a robust right of domestic self-defense.

To explicate my instincts here, consider how this op-ed from Robert Levy, a catalyst for the Heller litigation, concludes:

At root, the Heller case is simple. It's about self-defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary.  The Second Amendment to the Constitution was intended to safeguard that right.  Banning handguns outright is unconstitutional.

As federal criminal law buffs know well, 18 U.S.C. 922(g) categorically prohibits any persons who has ever been "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to ever at any time or for any reason "possess... any firearm or ammunition."  In short, 922(g) makes it a federal crime for any person who has ever been convicted of any felony to ever possess any firearm (insider or outside homes), and this blanket federal ban on all felon gun possession is punishable with up to 10 years of imprisonment.

But when someone is convicted of a single non-violent felony — say someone named Libby convicted of lying under oath or named Snoop convicted on a drug charge or named Martha convicted of obstruction of justice — that person would not seem to completely and forever forfeit the (natural?) right of domestic self-defense.  Thus, if we get a Kennedy-esque self-defense-focused ruling in Heller, at least some felons can and should hope to be covered by whatever individual rights get recognized in Heller. (Indeed, persons with a felony records are probably more likely than non-felons to live in dangerous communities and to get less-than-adequate police protection, and thus felons may genuinely need the protection of a Second Amendment right of domestic self-defense a lot more than non-felons.)

Does this mean that a Kennedy-esque self-defense-focused ruling in Heller will lead to a ruling that 18 U.S.C. 922(g) is categorically unconstitutional?  Absolutely not.  But does this mean that a Kennedy-esque self-defense-focused ruling in Heller will lead to a lot of new Second Amendment litigation in the context of felon-in-possession prosecutions.  Absolutely.  And that is the reason why, in my view, Solicitor General Paul Clement has been so unsolicitous of a broad Second Amendment ruling in Heller.

UPDATE:  Kent writing here at C&C about Heller explains why the CJLF did not file a brief in the case.  Reading between the lines of the post, I surmise that Kent agrees that a very broad Second Amendment ruling could raise new legal questions about "the authority of the government to punish more severely people who use guns to commit crimes and to bar possession of guns by convicted felons."

Get ready for a Second Amendment rumble, defense attorneys

In what I view to be good news for federal criminal defense attorneys, it appears from today's oral argument that the Supreme Court may be headed toward recognizing an individual right to armed self-defense protected by the Second Amendment.  Here is how Lyle Denniston at SCOTUSblog sees matters after the Heller oral argument:

The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home.  But what was not similarly clear was what kind of gun that would entail, and thus what kind of limitations government cut put on access or use of a weapon.  In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense.

As I have highlighted in lots of prior posts (some of which are linked below), if individuals are recognized to have an enforceable right to have a gun for self-defense in their home, I think there could be real constitutional problems with broad federal laws that prohibit all felons from possessing any guns in any settings AND severe sentencing laws that might unduly chill an individual's efforts to keep guns safely in her home.

Some prior posts on Heller and the Second Amendment's potential impact on criminal justice realities:

• Criminal mistakes in analysis of Heller hysteria
• Do any Second Amendment amici oppose extreme gun crime sentencing?
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?
• After 220 years, should the Second Amendment stay minimalist?

Some questions I hope get asked in Heller

Regular readers know I find the Heller Second Amendment case really interesting, though mostly for sentencing reasons few (if any) of the pundits are even aware of.  Specifically, because many link the right to keep and bear arms to a natural right of self-defense (example here), I think serious recognition of enforceable individual Second Amendment rights could impact the application of federal felon-in-possession laws and some severe federal gun sentencing enhancements.  So, with these ideas in mind, here are two questions I would like to see asked in Heller:

• On what textual or conceptual basis can felons be completely excluded from the protections of the Second Amendment?  (Potential follow-up: Do persons lose their natural right to self-defense by virtue of any felony conviction?)

• Given that the Third and Fourth Amendments make special mention of houses as a place where people have a special right to feel secure, should Second Amendment rights be considered more forceful when the keeping arms in the home is at issue?  (Potential follow-up: Should the standard of review be different for gun laws that impact keeping guns in the home?)

Readers are, of course, highly encouraged to add other suggested Heller questions as we gear up for tomorrow's big argument.

UPDATE:  How Appealing has links to lots and lots more Heller discussions here, and SCOTUSblog has more gun goodies here.

Another round of lawyers, guns and money

I cannot help thinking about the late great Warren Zevon and his great homage to the Cold War as I see all the media buzz over the Heller Second Amendment case to be argued in the Supreme Court tomorrow (lots of links thanks to How Appealing here and here). 

It is especially interesting to think about the Heller case against the backdrop of yesterday's interesting NY Times article titled "Supreme Court Inc," which documents how the Justices' recent work has been "exceptionally good for American business."  What sort of Second Amendment ruling would be good for business.  Perhaps counter-intuitively, I actually think that a rejection of broad individual Second Amendment rights will be good for business because I suspect a broad individual rights ruling could (and likely would) increase pressure on gun manufacturers to accept regulation of their products and a greater number of tort suits brought against gun sellers.

Some of my prior posts on Heller and the Second Amendment:

• Criminal mistakes in analysis of Heller hysteria
• Do any Second Amendment amici oppose extreme gun crime sentencing?
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?
• After 220 years, should the Second Amendment stay minimalist?

Criminal mistakes in analysis of Heller hysteria

With the Supreme Court's oral argument in the Second Amendment Heller case now only a few days away, the lawyer talk about the case is heating up.  Of particular note is this new column from Robert Novak suggesting that the Bush Administration is unsupportive of SG Paul Clement position in Heller.  That column has, in turn, produced additional analysis over at SCOTUSblog and at Volokh.

Sadly, as is all too common in all the buzz to date over Heller and the Second Amendment, none of the analysis considers the criminal justice litigation that the Justice Department justifiably fears if the Supreme Court were to recognize a robust individual right to keep and bear arms.  As I have suggested in a number of prior posts, a major pro-gun-rights ruling in Heller could mean a new (and viable?) constitutional claim raised in every felon-in-possession prosecution and also could mean additional challenges to gun-possession-based sentencing enhancements. 

I believe that fear of defense litigation in federal gun prosecutions best explains why the SG has taken such a tepid position in Heller.  It is also why I really, really, really hope the Justices ask counsel in Heller whether severe felon-in-possession criminal laws could be upheld if the Second Amendment is to be understood to secure an enforceable individual "right of the people to keep and bear Arms."

Some related recent Second Amendment posts:

• Do any Second Amendment amici oppose extreme gun crime sentencing?
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?
• After 220 years, should the Second Amendment stay minimalist?

After 220 years, should the Second Amendment stay minimalist?

Larry Tribe has this op-ed today about the Heller Second Amendment case in the Wall Street Journal, headlined "Sanity and the Second Amendment: Individuals have a right to bear arms -- but not any arms, anywhere."  I found the closing sentiments of the piece a bit curious:

Chief Justice John Roberts, ever since his days as a judge on the court of appeals, has virtually defined judicial modesty by opining that if it is not necessary for the court to decide an issue, then it is necessary for the court not to decide that issue.  For this reason, and for the further reason that the scholarship on the reach of the Second Amendment and its implementation is still in its infancy, the court should take the smallest feasible step in resolving the case before it. 

Issuing a narrow decision would disappoint partisans on both sides and leave many questions unresolved. But to do anything else would ill-suit a court that flies the flag of judicial restraint.

First, though Chief Justice Roberts has talked about "judicial modesty," my sense is that most court-watchers think he has not really pursued a "modest" judicial philosophy during his first few Terms on the Court.  Is Tribe now validating the notion that the new Chief is in fact a paragon of "judicial modesty"?

Second, is "the scholarship on the reach of the Second Amendment and its implementation" really "still in its infancy"?  If Tribe was discussing the Third Amendment, I would agree.  But Second Amendment scholarship has been pretty robust in modern times, and this scholarship is certainly a lot more advanced than scholarship about the reach and implementation of the Fifth, Sixth and Eighth Amendments at sentencing. 

Third, is it really a good idea to "leave many questions unresolved" in Heller?  Such an approach likely achieves nothing except lots and lots of lower-court litigation and political grand-standing about gun rights.  Is this really what we should hope the Supreme Court "achieves" through its ruling in Heller?

Fourth, do current court-watchers seriously think that the Roberts Court "flies the flag of judicial restraint"?  Perhaps Tribe and others are hoping that the Roberts Court will run this flag up its flagpole, but I do not think too many of the current Justices have shown a real affinity for pledging allegiance to that flag.

Some related recent Second Amendment posts:

• Different rhetoric about individual gun rights
• More thoughts about the scope of Second Amendment rights
• Do any Second Amendment amici oppose extreme gun crime sentencing?
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Hunting, pardons and a Second Amendment claim?
• Why true liberals ought to embrace Parker
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?

More on smart guns, dumb technologies and market realities

Following up my earlier post on smart guns, Eugene Volokh asks his readers why they think there has not been any progress on smart gun technology in recent years.  The comments make for very interesting reading, though there seems to be a collective view that an effective smart gun presents almost insurmountable technological challenges.

Though I accept the basic premise that an effective smart gun would present technological challenges, I have a hard time believing that gun technology could not improve.  In a modern world in which phones, cameras, cars, computers, TVs and appliances get more technologically sophisticated seemingly every month, I have a really hard time believing that it is technologically impossible to build a smarter gun.

My suspicion is that the marketplace does not support gun technology improvements, perhaps because most gun buyers and users do not want or need a smarter gun.  As Grits astutely noted, a smarter gun might hurt the "gray market" gun trade, and most lawful gun users likely feel they can ensure safe gun use through self-help and old technology.  These realities, in turn, suggest that smart gun advances may require government or private funding that creates incentives outside the traditional market for tech innovation in this arena.  As I suggested in my prior post, a good Second Amendment decision in Heller from the Supreme Court might jump start a gun-tech movement.

State amici shut out, SG gets extra time: is the fix in in Heller?

For anyone (like me) eager to see a robust Second Amendment right protected by the courts, today's Supreme Court order list concerning argument time in Heller provides an ominous tea leaf to read.  Tony Mauro in this post provides the story:

In a brief order on today's order list the Supreme Court dashed the hopes of gun rights advocates who hoped to have two lawyers and additional time arguing their cause before the Supreme Court when it hears arguments in the historic case D.C. v. Heller March 18.

Without explanation, the Court denied the motion of Texas Solicitor General R. Ted Cruz for argument time on the side of Alan Gura of Gura & Possessky, who has argued the pro-Second Amendment position from the start of the case. But the Court did agree to give Solicitor General Paul Clement 15 minutes to argue, in addition to the 30 minutes for each side in the case.

The Court's action can be read as a small but not insignificant victory for supporters of D.C.'s handgun control ordinance at issue in the case.... Walter Dellinger of O'Melveny & Myers, who will argue in defense of the D.C. handgun ban, had opposed the Texas motion, but supported Clement's request for added argument time....  [E]ven though Clement's brief lends support to both sides, the net effect of today's Court action is that the justices will hear 45 minutes of advocacy from those who want the lower court ruling eliminated, and 30 minutes from those who want it upheld.

Some recent related posts on the Heller case and the Second Amendment:

• Technology, smart guns, GPS tracking and a better Second Amendment
• Different rhetoric about individual gun rights
• More thoughts about the scope of Second Amendment rights
• Do any Second Amendment amici oppose extreme gun crime sentencing?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?

Technology, smart guns, GPS tracking and a better Second Amendment

I just noticed on SSRN this effective short article about the modern Second Amendment debated headlined "Public Safety and the Right to Bear Arms."  I found the final paragraph of the piece especially insightful:

[A better Second Amendment debate would not focus on whether the Amendment protects an individual right, but rather] would involve examining how best to recognize and protect the right while also allowing legislatures leeway to develop criminologically sound measures designed to limit, in so far as possible, access to weapons on the part of career criminals and those who are mentally unstable.  Such a debate would involve recognizing that the right to have arms has been and remains part of the American Constitutional tradition, that it is valued by large segments of society and that the right sets real limits on governmental regulation.  It also involves recognizing that measures designed to keep weapons out of undesirable hands are not necessarily inconsistent with this right.  In the second half of the twentieth century, we were unable to develop this kind of debate on the national level precisely because of the effort to redefine the Second Amendment into meaninglessness, perhaps in the first half of the twenty-first century a greater willingness to recognize the Second Amendment will allow the dialogue to begin.

I am eager to begin this dialogue, in part because technological advances are a potential "magic bullet" solution here.  (Sorry for the bad pun.)  Society is moving swiftly toward using technology like GPS tracking to deal with the risks associated with sex offenders, and I am troubled that we are not also moving swiftly toward using technology to deal with the risks associated with the misuse of guns.

Interestingly, though apparently there was a lot of "smart gun" talk and research going on years ago, I have had a very hard time finding any up-to-date materials on modern smart gun technology research.  For example, the NRA has this fact sheet and this article by David Kopel assailing smart gun technologies, but the NRA fact sheet was last updated in January 2000, and the Kopel piece is from January 2003.  Disappointingly, this page from the Brady Center to Prevent Gun Violence has over a dozen research reports, but none appear to discuss concepts of a "smart gun" or other technology-driven research seeking to reduce gun violence.

Meanwhile, I found this interesting piece in Science Daily providing a positive view of smart gun technology, but it was written in 2005.  Of course, 2005 does not seem that long ago, but it certainly is in the fast-moving world of technology.  (Consider again the swift pace of GPS technology advances: in 2005, a car-friendly GPS device cost thousands of dollars, now such devices are available for under $100 and are becoming a standard feature in many vehicles.)

Notably, I discovered that, in June 2001, the Bush Administration put out this very interesting document an "NIJ 'Smart Gun' Solicitation," which included this assertion: "NIJ is interested in bringing 'smart gun' technology to the law enforcement community as rapidly as possible, but in a manner that develops confidence in the technology through a clearly defined development, evaluation and demonstration process."  So, apparently seven years ago there was a serious commitment by the Bush administration to bring "smart gun technology to the law enforcement community as rapidly as possible."  Does anyone know how that's coming along these days?

In my view, techonology could and should provide a much more refined and effective way to regulate an individual right to bear arms than, say, completely prohibiting all felons from having guns.  An effective smart gun technology could and should be able to keep guns out of the hands of those who are unlikely to be able use guns safely — e.g., kids, illegal purchasers, those with a history of violence or mental illness, abusive spouses under an active restraining order — while ensuring that police officers and lawful gun owners have little reason to worry about their own gun rights and usage.

Maybe I need a catchy slogan to get smart gun talk going again.  So here goes: "Smart guns don't kill people, dumb people using dumb guns kill people!"

Some related recent Second Amendment posts:

• Different rhetoric about individual gun rights
• More thoughts about the scope of Second Amendment rights
• Do any Second Amendment amici oppose extreme gun crime sentencing?
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Hunting, pardons and a Second Amendment claim?
• Why true liberals ought to embrace Parker
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?

Different rhetoric about individual gun rights

This AP reports that "Barack Obama said Friday that the country must do 'whatever it takes' to eradicate gun violence following a campus shooting in his home state, but he believes in an individual's right to bear arms":  "I think there is an individual right to bear arms, but it's subject to commonsense regulation" like background checks, he said during a news conference.

Meanwhile, I am pleased to report that at least one lawyer has built on some of my musings about the potential for Second Amendment arguments in felon-in-possession cases.  This lawyer's motion to dismiss such a case based on the Second Amendment can be downloaded below, and here are snippets:

The rights contained in the Second Amendment are “preferred rights” because, first and foremost, they are inextricably intertwined with the right of self-defense....

The statute, under which the Defendant is now charged, is 18 U.S.C. Sec. 922(g)(1) is a broad and sweeping statute. Arguably, it punishes the status of being a felon; see, Robinson v. California, 370 U.S. 660 (1962)(held, it is a denial of due process to criminalize a person’s status). Inarguably, the statute makes no distinction between violent crimes and non-violent crimes or street crimes and white collar crimes. The Defendant, in the case at bar, finds himself precisely in the same classification as Michael Millikin, Michael Vick, Martha Stewart, I. Lewis “Scooter” Libby, Jr., Gregory Reyes, William Lerach, and a whole host of others...

Measured by Second Amendment principles grounded in a fundamental, individual right to keep and bear arms, in the sanctity of one’s own home, for purposes of self-defense, the statute under which the Defendant has been charged is overbroad and fatally flawed. Count IV of the Indictment should be dismissed.

Download us_v_khami.pdf

More thoughts about the scope of Second Amendment rights

My post this morning about the potential scope of Second Amendment rights and the prospect of felon gun right has led to some great comments, and now I want to fill out my (half-baked?) ideas in this arena.  Specifically, I want to highlight how far courts often go to protect important provisions of the Bill of Rights, and then question whether other Second Amendment fans really have the courage of their convictions.

Specifically, consider that in the Fifth Amendment context, the right not to "be compelled in any criminal case to be a witness against himself" has been interpreted to require Miranda warnings.  Or consider that in the Sixth Amendment context, the right "to have the assistance of counsel" has been interpreted to require the state at its expense to provide an effective lawyer.   

In other words, whether seen as living or dead, provisions in the Bill of Rights have often been dynamically interpretted to safeguard rights against the government that courts consider important (and I am not even talking about any penumbral emanations).  And, lets play out the Sixth Amendment analogy in light of current federal law barring all felons from gun ownership:  Would anyone find constitutional a federal law that made it a felony offense — and one subject to a 10-year federal prison sentence — for any and all previously convicted felon to hire a lawyer?

Again, lets keep the context in mind as I play out these ideas: I fully understand why people who do not support individual gun rights are eager to deny gun rights for felons and to support long sentences for gun crimes.  But this returns me to the tough question for genuine supporters of individual Second Amendment rights: if a person really, truly, deeply believes in an individual and fundamental right to keep and bear arms, why should this person (other than for reasons of political expediency) be willing and eager to concede that such a fundamental right is always forfeited by anyone who has ever committed a felony?

Do any Second Amendment amici oppose extreme gun crime sentencing?

I am impressed, though not especially surprised, that nearly 50 amicus briefs have been filed in the Supreme Court in support of an individual right to keep and bear arms under the Second Amendment.  SCOTUSblog here links to all these friendly briefs.

I wonder if any of these groups will help in my planned efforts to attack severe gun sentences under the Second Amendment if (when?) the Supreme Court recognizes that the this amendment provides an individual and enforceable right.  As I have noted in a number of prior posts, I think laws prohibiting all felon from ever keeping a firearm and lengthy mandatory sentencing terms for simply keeping a gun under certain circumstances can (and should) be subject to a constitutional attack if the Supreme Court takes an individual view of the Second Amendment in Heller.

Some related posts on the Heller Second Amendment case:

• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• Thoughtful analysis of the realities of Second Amendment litigation
• Hunting, pardons and a Second Amendment claim?
• Why true liberals ought to embrace Parker
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?

Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights

SCOTUSblog here has links to a large bunch of amicus briefs filed in the Supreme Court's Heller Second Amendment case.  Though perhaps other supporters of gun rights do not sell out felons, I was especially interested to see that the National Rifle Association's brief, which describes the NRA as "America’s foremost defender of Second Amendment rights" readily concedes that "laws barring [any gun] ownership by convicted felons" would pass its proposed Second Amendment test.

As I have highlighted in prior posts, there are lots and lots of folks with felony convictions — such as Martha Stewart and Lewis Libby — who might want and need to have a gun for self-protection.  Nevertheless, while the NRA claims to be the foremost defender of the "human, civil, and constitutional rights of the individual to keep and bear arms in a free society," the NRA is still content (and even seems eager) to concede that once convicted of any kind of felony, any and every person loses forever these "human, civil, and constitutional rights."

Some related posts on the Heller Second Amendment case:

• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Thoughtful analysis of the realities of Second Amendment litigation
• Hunting, pardons and a Second Amendment claim?
• Why true liberals ought to embrace Parker
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?
• What might Second Amendment strict scrutiny mean for strict gun laws?

What might Second Amendment strict scrutiny mean for strict gun laws?

As detailed in this article in today's Washington Post and this post at SCOTUSblog, attorneys for respondent Dick Heller filed this brief in the Supreme Court assailing the constitutionality of DC's gun restrictions under the Second Amendment.  Among many interesting aspect of the brief is a section calling for the "highest level of scrutiny for regulations implicating Second Amendment rights."  Here are some intriguing (and puzzling) excerpts from this part of the brief:

The Second Amendment has the distinction of securing the most fundamental rights of all — enabling the preservation of one’s life and guaranteeing our liberty. These are not second-class concerns. .... If a gun law is to be upheld, it should be upheld precisely because the government has a compelling interest in its regulatory impact.  Because the governmental interest is so strong in this arena, applying the ordinary level of strict scrutiny for enumerated rights to gun regulations will not result in wholesale abandonment of the country’s basic firearm safety laws.... The prohibition on possession of guns by felons, 18 U.S.C. § 922(g), and the requirement that gun buyers undergo a background check for history of criminal activity or mental illness, 18 U.S.C. § 922(t), would easily survive strict scrutiny.

So, according to the respondent in Heller, the Second Amendment secures "the most fundamental rights of all," namely "preservation of one’s life."  And yet, only a few sentences later, the respondent in Heller asserts that any and all felons — including Martha Stewart and Lewis Libby and Lil Kim and Michael Vick (but not Wesley Snipes) — can be entirely prohibited from securing this fundamental right to the preservation of their lives.  Hmmm.

Some related posts on jurisprudential challenges in the Heller Second Amendment case:

• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Thoughtful analysis of the realities of Second Amendment litigation
• Hunting, pardons and a Second Amendment claim?
• Why true liberals ought to embrace Parker
• Concerns about concerns about the recognition of serious gun rights
• Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?

Isn't the SG just too smart about the criminal justice fall-out from broad Second Amendment rights?

This Wall Street Journal editorial, titled "Misfire at Justice," continues the bashing of the Bush Administration's amicus brief in the Heller Second Amendment case.  Here are excerpts:

The Second Amendment's right to bear arms has rarely been considered by the Supreme Court, but this year the Court is hearing a case that could become a Constitutional landmark.  So it is nothing short of astonishing, and dispiriting, that the Bush Justice Department has now weighed in with an amicus brief that is far too clever by half....

The D.C. Circuit's opinion in Heller is forceful, clearly reasoned and Constitutionally sound.  By supporting that decision and urging the Supreme Court to validate it, the Bush Administration had the opportunity to help the Court see its way to a historic judgment.  Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated.  It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration.

The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case.  Is anybody still awake at the White House?

As I have suggested in prior posts, the problem is not a slumbering Administration that is "too clever by half," but rather a Justice Department that may be far too alert concerning the potential criminal justice fall-out from a broad Second Amendment ruling in Heller.  The "legal Katrina" may not be the SG's brief in Heller, but rather the 2255 petitions from federal prisoners and other challenges to severe federal gun sentences that could flood lower courts if the Supreme Court issues a broad Second Amendment ruling.

As detailed in the latest USSG statistics, over 8,000 offenders were sentenced to an average of over six years' imprisonment for federal firearm offenses in just the last fiscal year, and thousands of other offenders got severe sentence enhancements for firearm possession in a drug offense.  Though a broad Second Amendment ruling may not ultimately help any of the tens of thousands of offenders serving time for federal gun offenses