Monday, November 14, 2011

Big (ugly?) NY Times report on felons getting back gun rights

This morning's New York Times has this huge front-page story headlined "Felons Finding It Easy to Get Gun Rights Reinstated." Disappointingly (but not surprisingly), the theme of the article is decidedly not praise for efforts by some states to make it easier for former felons to regain a fundamental constitutional right.  Here are some excerpts from an article that should (and likely will) be the subject of lots of discussion and commentary:

Under federal law, people with felony convictions forfeit their right to bear arms. Yet every year, thousands of felons across the country have those rights reinstated, often with little or no review. In several states, they include people convicted of violent crimes, including first-degree murder and manslaughter, an examination by The New York Times has found.

While previously a small number of felons were able to reclaim their gun rights, the process became commonplace in many states in the late 1980s, after Congress started allowing state laws to dictate these reinstatements — part of an overhaul of federal gun laws orchestrated by the National Rifle Association. The restoration movement has gathered force in recent years, as gun rights advocates have sought to capitalize on the 2008 Supreme Court ruling that the Second Amendment protects an individual’s right to bear arms.

This gradual pulling back of what many Americans have unquestioningly assumed was a blanket prohibition has drawn relatively little public notice. Indeed, state law enforcement agencies have scant information, if any, on which felons are getting their gun rights back, let alone how many have gone on to commit new crimes.

While many states continue to make it very difficult for felons to get their gun rights back — and federal felons are out of luck without a presidential pardon — many other jurisdictions are far more lenient, The Times found. In some, restoration is automatic for nonviolent felons as soon as they complete their sentences. In others, the decision is left up to judges, but the standards are generally vague, the process often perfunctory. In some states, even violent felons face a relatively low bar, with no waiting period before they can apply....

Margaret C. Love, a pardon lawyer based in Washington, D.C., who has researched gun rights restoration laws, estimated that, depending on the type of crime, in more than half the states felons have a reasonable chance of getting back their gun rights.

That universe could well expand, as pro-gun groups shed a historical reluctance to advocate publicly for gun rights for felons. Lawyers litigating Second Amendment issues are also starting to challenge the more restrictive restoration laws. Pro-gun groups have pressed the issue in the last few years in states as diverse as Alaska, Ohio, Oregon and Tennessee.

Ohio’s Legislature confronted the matter when it passed a law this year fixing a technicality that threatened to invalidate the state’s restorations. Ken Hanson, legislative chairman of the Buckeye Firearms Coalition, argued that felons should be able to reclaim their gun rights just as they can other civil rights. “If it’s a constitutional right, you treat it with equal dignity with other rights,” he said.

But Toby Hoover, executive director of the Ohio Coalition Against Gun Violence, contended that the public was safer without guns in the hands of people who have committed serious crimes. “It seems that Ohio legislators have plenty of problems to solve that should be a much higher priority than making sure criminals have guns,” Ms. Hoover said in written testimony.

That question — whether the restorations pose a risk to public safety — has received little study, in part because data can be hard to come by.

The Times analyzed data from Washington State.... Since 1995, more than 3,300 felons and people convicted of domestic violence misdemeanors have regained their gun rights in the state — 430 in 2010 alone — according to the analysis of data provided by the state police and the court system. Of that number, more than 400 — about 13 percent — have subsequently committed new crimes, the analysis found. More than 200 committed felonies, including murder, assault in the first and second degree, child rape and drive-by shooting....

[T]he restoration of civil rights, which is now central to regaining gun rights, is relatively routine, automatic in many states upon completion of a sentence. In some states, felons must also petition for a judicial order specifically restoring firearms rights. Other potential paths include a pardon from the governor or state clemency board or a “set aside”— essentially, an annulment — of the conviction.

Today, in at least 11 states, including Kansas, Ohio, Minnesota and Rhode Island, restoration of firearms rights is automatic, without any review at all, for many nonviolent felons, usually once they finish their sentences, or after a certain amount of time crime-free. Even violent felons may petition to have their firearms rights restored in states like Ohio, Minnesota and Virginia. Some states, including Georgia and Nebraska, award scores of pardons every year that specifically confer gun privileges.

Felons face steep odds, though, in states like California, where the governor’s office gives out only a handful of pardons every year, if that. “It’s a long, drawn-out process,” said Steve Lindley, chief of the State Department of Justice’s firearms bureau. “They were convicted of a felony crime. There are penalties for that.”

Studies on the impact of gun restrictions largely support barring felons from possessing firearms. One study, published in the American Journal of Public Health in 1999, found that denying handgun purchases to felons cut their risk of committing new gun or violent crimes by 20 to 30 percent. A year earlier, a study in the Journal of the American Medical Association found that handgun purchasers with at least one prior misdemeanor — not even a felony — were more than seven times as likely as those with no criminal history to be charged with new offenses over a 15-year period.

Criminologists studying recidivism have found that felons usually have to stay out of trouble for about a decade before their risk of committing a crime equals that of people with no records. According to Alfred Blumstein, a professor at Carnegie Mellon University, for violent offenders, that period is 11 to 15 years; for drug offenders, 10 to 14 years; and for those who have committed property crimes, 8 to 11 years. An important caveat: Professor Blumstein did not look at what happens when felons are given guns....

Washington’s gun rights restoration statute dates to a 1995 statewide initiative, the Hard Times for Armed Crimes Act, that toughened penalties for crimes involving firearms. The initiative was spearheaded, in part, by pro-gun activists, including leaders of the Second Amendment Foundation, an advocacy group, and the N.R.A.

Although it drew little notice at the time, the legislation also included an expansion of what had been very limited eligibility for restoration of firearms rights. “There were a lot of people who we felt should be able to get their gun rights restored who could not,” said Alan M. Gottlieb, founder of the Second Amendment Foundation, who was active in the effort.

Under the legislation, “Class A” felons — who have committed the most serious crimes, like murder and manslaughter — are ineligible, as are sex offenders. Otherwise, judges are required to grant the petitions as long as, essentially, felons have not been convicted of any new crimes in the five years after completing their sentences. Judges have no discretion to deny the requests based upon character, mental health or any other factors. Mr. Gottlieb said they explicitly wrote the statute this way. “We were having problems with judges that weren’t going to restore rights no matter what,” he said.

The statute’s mix of strictness and leniency makes Washington a useful testing ground. The Times’s analysis found that among the more than 400 people who committed crimes after winning back their gun rights under the new law, more than 70 committed Class A or B felonies. Over all, more than 80 were convicted of some sort of assault and more than 100 of drug offenses.

 

November 14, 2011 in Criminal Sentences Alternatives, Gun policy and sentencing, Offender Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, November 03, 2011

"The Right Not to Keep or Bear Arms"

The title of this post is the title of this terrifically-interesting new paper on SSRN by Professor Joseph Blocher.  Here is the abstract:

Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak.  This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have.

The Article concludes -- albeit with some important qualifications -- that a right not to keep or bear arms is implied by what the Supreme Court has called the “core” and “central component” of the Second Amendment: self-defense, especially in the home.  Recognizing such a right might call into question the constitutionality of the growing number of “antigun control” laws that make it difficult or illegal for private individuals to avoid having guns in their actual or constructive possession.

November 3, 2011 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (13) | TrackBack

Wednesday, October 26, 2011

"Record-Low 26% in U.S. Favor Handgun Ban"

N9ggmdee1k60atawqdbprqThe title of this post comes from the headline of this new Gallup report, which includes this explanation of the latest poll data on gun control sentiments:

A record-low 26% of Americans favor a legal ban on the possession of handguns in the United States other than by police and other authorized people. When Gallup first asked Americans this question in 1959, 60% favored banning handguns. But since 1975, the majority of Americans have opposed such a measure, with opposition around 70% in recent years.

The results are based on Gallup's annual Crime poll, conducted Oct. 6-9. This year's poll finds support for a variety of gun-control measures at historical lows, including the ban on handguns, which is Gallup's longest continuing gun-control trend.

For the first time, Gallup finds greater opposition to than support for a ban on semiautomatic guns or assault rifles, 53% to 43%. In the initial asking of this question in 1996, the numbers were nearly reversed, with 57% for and 42% against an assault rifle ban. Congress passed such a ban in 1994, but the law expired when Congress did not act to renew it in 2004. Around the time the law expired, Americans were about evenly divided in their views.

Additionally, support for the broader concept of making gun laws "more strict" is at its lowest by one percentage point (43%). Forty-four percent prefer that gun laws be kept as they are now, while 11% favor less strict laws. As recently as 2007, a majority of Americans still favored stricter laws, which had been the dominant view since Gallup first asked the question in 1990.

Americans' preference regarding gun laws is generally that the government enforce existing laws more strictly and not pass new laws (60%) rather than pass new gun laws in addition to stricter enforcement of existing laws (35%). That has been the public's view since Gallup first asked the question in 2000; the 60% this year who want stricter enforcement but no new laws is tied for the high in the trend.

All key subgroups show less support for stricter gun laws, and for a ban on handguns, than they did 20 years ago. In 1991, 68% of Americans favored stricter gun laws and 43% favored a ban on handguns. Those percentages are 43% and 26%, respectively, today.

Relatively few key subgroups favor stricter gun-control laws today, whereas in 1991, all did. Since then, Democrats' views have shown less change, with a 10-point decline in the percentage favoring stricter laws. Republicans show a much larger decline of 35 points. In addition to Democrats, majorities of Eastern residents and those without guns in their household still favor stricter gun laws....

Americans have shifted to a more pro-gun view on gun laws, particularly in recent years, with record-low support for a ban on handguns, an assault rifle ban, and stricter gun laws in general. This is the case even as high-profile incidents of gun violence continue in the United States, such as the January shootings at a meeting for U.S. Rep. Gabrielle Giffords in Arizona.

The reasons for the shift do not appear related to reactions to the crime situation, as Gallup's Crime poll shows no major shifts in the trends in Americans' perceptions of crime, fear of crime, or reports of being victimized by crime in recent years. Nor does it appear to be tied to an increase in gun ownership, which has been around 40% since 2000, though it is a slightly higher 45% in this year's update. The 2011 updates on these trends will appear on Gallup.com in the coming days.

Perhaps the trends are a reflection of the American public's acceptance of guns. In 2008, Gallup found widespread agreement with the idea that the Second Amendment of the U.S. Constitution guarantees the right of Americans to own guns. Americans may also be moving toward more libertarian views in some areas, one example of which is greater support for legalizing marijuana use. Diminished support for gun-control laws may also be tied to the lack of major gun-control legislation efforts in Congress in recent years.

October 26, 2011 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, October 05, 2011

One of these things is not like the others: Heller, Graham, Kennedy and Booker

250px-CMErnieSortingThe title of this post is inspired by an interesting footnote in the interesting dissent by Judge Kavanaugh in the interesting DC Circuit Second Amendment ruling yesterday (first blogged here).  As readers of any TV generation should know, I am making reference to a classic Sesame Street segment (if you want hum along, go here or here) as a way to set up this interesting insight and discussion from Judge Kavanaugh in footnote 3 near the start of his lengthy dissent:

Heller was similar in its overarching practical and real-world ramifications to recent Supreme Court decisions such as Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011); Graham v. Florida, 130 S. Ct. 2011 (2010); Kennedy v. Louisiana, 554 U.S. 407 (2008); and Romer v. Evans, 517 U.S. 620 (1996).  Those decisions disapproved novel or uncommon state legislative efforts to regulate beyond traditional boundaries in areas that affected enumerated individual constitutional rights — California’s law banning sale of violent video games, Florida’s law permitting life without parole for certain juvenile crimes, Louisiana’s law permitting the death penalty for certain rapes, and Colorado’s law prohibiting gay people from receiving protection from discrimination.  Because those laws were outliers, the decisions invalidating them did not cause major repercussions throughout the Nation.  Heller was a decision in that same vein, in terms of its immediate practical effects in the United States.  By contrast, of course, some Supreme Court decisions interpreting the Constitution’s individual rights provisions not only are significant jurisprudentially but also have substantial practical impacts on common federal or state practices.  See, e.g., Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Arizona v. Gant, 556 U.S. 332 (2009); United States v. Booker, 543 U.S. 220 (2005).  Heller was not a decision of that kind.

As a descriptive matter, Judge Kavanaugh is spot on in noting that many of the most high-profile modern SCOTUS constitutional rulings involved invalidation of a "novel or uncommon" and "outlier" piece of state legislation, while a few others upset more common criminal justice practices.  (Thus, the first answer to the Sesame Street question posed above is Booker, which Judge Kavanaugh rights asserts was more disruptive of traditional and common practices than Heller or Graham or Kennedy.)  Critically, though, Judge Kavanaugh goes on to develop a jurisdictional approach to the Second Amendment based in the idea that the novelty or outlier status of any gun regulation makes it constitutionally suspect. I am tempted to call this a Sesame Street approach to the Second Amendment: if a particular jurisdiction's gun regulation is not like a lot of others, then it is (presumptively?) unconstitutional.

Of course, it make plenty of textual sense to assert that a novel or uncommon punishment is constitutionally suspect given the Eighth Amendment's prohibition on "cruel and unusual punishments."  But it is hard to see just where and how a presumption against novel gun regulation finds expression in the text of the Second Amendment's prohibition on infringements of the right to keep and bear arms.  Moreover, there is a competing constitutional tradition (based in federalism and the decentralization of power) to praise and protect efforts by individual states to try a unique approach to regulation in order to foster a laboratory for legislative innovation.

That all said, I find myself somewhat drawn to this Sesame Street approach to the Second Amendment, in large part because of its super-majoritarian quality and practical convenience.  However, I suspect others may see more virtues than vices in Judge Kavanaugh's jurisprudential approach.  Gosh knows this approach has proved controversial in the Eighth Amendment context, and there is has considerably more textual support than in the Second Amendment setting.

October 5, 2011 in Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, October 04, 2011

Split DC Circuit panel issues important Second Amendment ruling in via Heller II

The DC Circuit has another big Second Amendment ruling in the Heller case today in Heller v. DC, No. No. 10-703 (DC Cir. Oct. 4, 2011) (available here).   Here is how the majority opinion (per Judge Ginsburg) gets started: 

In June 2008 the Supreme Court held the District of Columbia laws restricting the possession of firearms in one’s home violated the Second Amendment right of individuals to keep and bear arms.   See District of Columbia v. Heller, 554 U.S. 570. In the wake of that decision, the District adopted the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372, which amended the Firearms Control Regulations Act of 1975, D.C. Law 1-85.  The plaintiffs in the present case challenge, both facially and as applied to them, the provisions of the District’s gun laws, new and old, requiring the registration of firearms and prohibiting both the registration of “assault weapons” and the possession of magazines with a capacity of more than ten rounds of ammunition. The plaintiffs argue those provisions (1) are not within the District’s congressionally delegated legislative authority or, if they are, then they (2) violate the Second Amendment.

The district court granted summary judgment for the District and the plaintiffs appealed. We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements.   We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.

Here is part of the start of the very lengthy dissent by Judge Kavanaugh:

In this case, we are called upon to assess those provisions of D.C.’s law under Heller.  In so doing, we are of course aware of the longstanding problem of gun violence in the District of Columbia.  In part for that reason, Heller has engendered substantial controversy.  See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253 (2009); Richard A. Posner, In Defense of Looseness, THE NEW REPUBLIC, Aug. 27, 2008, at 32.  As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction.  Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.

In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.

October 4, 2011 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Thursday, September 29, 2011

What do Second Amendment and states' rights fans think about feds latest gun memo?

As detailed in this new AP piece, which is headlined "ATF: Illegal to sell guns to med marijuana users," a new memo/letter from the feds restates the US Justice Department's view that gun dealers violate federal law if and when they sell a firearm to anyone who uses medical marijuana consistent with state law.  Here are excerpts from the AP report:

Federal law already makes it illegal for someone to possess a gun if he or she is "an unlawful user of, or addicted to" marijuana or other controlled substances. A Sept. 21 letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives, issued in response to numerous inquiries from gun dealers, clarifies that medical marijuana patients are included in that definition....

"There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law," said the letter by Arthur Herbert [available here], the ATF's assistant director for enforcement programs and services....

The clash between state and federal drug laws has led to lawsuits and criminal cases in some of the 16 states that have legalized medical marijuana use. Officials in two Oregon counties have said they'll appeal to the U.S. Supreme Court after state judges said sheriffs couldn't deny concealed handgun licenses for medical marijuana patients.

The Oregon Court of Appeals and the Oregon Supreme Court said the state law that authorizes concealed handgun permits is separate from the federal law that outlaws gun possession by drug users, and the state gun law doesn't address medical marijuana use.

Federal authorities also raided dozens of medical marijuana operations across Montana this spring, chilling a once-booming pot industry and leading to sweeping changes in Montana law. The Department of Justice followed up with a warning letter to political leaders in many states that federal prosecutors will pursue marijuana distributors but not individual patients who are following state law....

Pro-marijuana and gun groups said the policy clarification amounts to rescinding the gun rights for the thousands of people licensed to use medical marijuana laws. And it appears to contradict a 2009 Department of Justice memo that said the Obama administration would not pursue prosecution of individual medical marijuana users who obey state laws.

Besides that, the government is putting an additional burden on gun dealers to police their customers, said Montana Shooting Sports Association Gary Marbut. "Their business is to be merchants, not to be cops. Unfortunately, the federal licensing scheme complicates that," Marbut said. "It sounds as if the (ATF) is expecting them to drift further into the cop role."

I would be very interested to hear what various Republican candidates for president would have to say on this issue, especially Rick Perry and Michele Bachmann given their vocal support for the Second Amendment and for states' rights.

A few related posts:

September 29, 2011 in Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, September 24, 2011

"Should pardoned felons have gun rights?"

41591_37644432732_5613370_n The title of this post is the headline of this front-page article from yesterday's edition of The Tennessean.  Here is how the piece starts:

David Scott Blackwell has repaid his debt to society, by Georgia standards.  He served five years in prison for selling drugs.  He successfully finished his probation.  He was even granted a full pardon by the Georgia Board of Pardons and Paroles, which would allow him to possess a gun in that state.

But should Blackwell, now living in Franklin, be able to own a gun here? Blackwell is suing the state after being denied a gun permit in Tennessee, arguing that the Georgia pardon fully restored his rights — even the right to bear arms.  It’s a battle being played out in other states as well, as lawmakers in places such as Alaska and Oregon have mulled over laws to loosen firearms restrictions on felons who have had some of their rights restored.

It also has brought out unusually vocal support from Second Amendment advocates, who in prior years have been hesitant to support some felons’ rights to possess firearms.  Among those advocates is the Tennessee Firearms Association, which downplays the fact that Blackwell is a convicted felon, instead painting it as a conflict between the constitutional powers of the pardon and Tennessee lawmakers who have written laws to restrict felons’ rights.

This marks the first time in the association’s 16 years that it has filed a brief in any lawsuit.  “Georgia’s pardon system granted him a full pardon, and it specifically says he has the right to purchase and acquire guns,” said John Harris, a Nashville attorney who serves as the volunteer executive director for the Tennessee Firearms Association.  “This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?”

Blackwell failed to convince a Davidson County Chancery Court judge, but has appealed. The Tennessee Court of Appeals recently heard arguments and is considering the case. “The pardon restores constitutional rights — that’s what a pardon does,” said Blackwell’s attorney, David Raybin.  “Therefore, it restores his right to a firearm.  That’s it, in its simplest terms.”

But the state is opposing Blackwell, saying laws passed by the Tennessee legislature prohibiting felons from possessing firearms apply to those whose rights have been restored.  “It is reasonable for the legislature to determine that felony drug offenders, even those who subsequently receive a pardon, are likely to misuse firearms in the future,” wrote the Tennessee Attorney General’s Office.  “This is due to the well-known connection between guns and drugs.”

The newspaper has this accompanying on-line poll asking whether "a pardoned ex-convict who is allowed to own fire arms in Georgia [and] now lives in TN [should] be allowed to own a gun in TN?".   With just under 500 votes cast as of this writing, the vote has YES at 47%, NO at 45%, and a remaining 8% as Undecided.   (I voted YES in part because I suspect a non-violent offender who has secured a pardon is probably less dangerous and less likely to misuse a gun than an average citizen.)

September 24, 2011 in Clemency and Pardons, Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (26) | TrackBack

Tuesday, September 20, 2011

Ninth Circuit rejects Second Amendment attack on criminalizing drug addict gun possession

In US v. Dugan, No. 08-10579 (9th Cir. Sept. 20, 2011) (available here), a Ninth Circuit panel needs only two pages to reject a federal defendant's Second Amendment challenge to a federal statute that makes it a felony for a drug addict to possess a firearm.  Here are excerpts from the brief opinion (with a bit of my emphasis added toward the end):

We consider the constitutionality of 18 U.S.C. § 922(g)(3) ... [and] uphold the statute against this Second Amendment challenge.

Defendant Kevin Dugan illegally grew and sold marijuana.  He also smoked marijuana regularly.  When police officers responded to a report of domestic violence at his home one afternoon, they discovered his marijuana operation and arrested Defendant.  Because Defendant also had a business of dealing in firearms, a jury convicted him of, among other things, shipping and receiving firearms through interstate commerce while using a controlled substance, in violation of § 922(g)(3).

Defendant argues that § 922(g)(3) runs afoul of the Second Amendment because it deprives him of his constitutional right to possess and carry weapons in case of confrontation....  [But the Supreme] Court told us that “nothing in [its Heller] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  Two of our sister circuits have taken that statement to mean that § 922(g)(3), which embodies a longstanding prohibition of conduct similar to the examples mentioned in Heller, permissibly limits the individual right to possess weapons provided by the Second Amendment.  United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010), cert. denied, 131 S. Ct. 1027 (2011).  We agree.

Like our sister circuits, we see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so.  Habitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances.  Moreover, unlike people who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user may regain his right to possess a firearm simply by ending his drug abuse.  The restriction in § 922(g)(3) is far less onerous than those affecting felons and the mentally ill.  Yancey, 621 F.3d at 686-87.  Because Congress may constitutionally deprive felons and mentally ill people of the right to possess and carry weapons, we conclude that Congress may also prohibit illegal drug users from possessing firearms.

I find the logic of this opinion quite suspect, though I fear the usual Second Amendment crowd will not be eager to assail the Ninth Circuit panel's ruling here.  Moreover, I cannot not help but notice that, in the second sentence of the last paragraph, the Ninth Circuit panel jumps from talking about felons to referencing "career criminals" (I have added the emphasis here).  Indeed, the very use of this legally irrelevant and inflamatory term is one of many reasons I find the logic of this opinion suspect.

Obviously, not all felons are "career criminals."  More to the point, perhaps, I find intriguing not only the notion that all criminals and mentally ill and habitual drug users are those "more likely [to] have difficulty exercising self-control," but also the suggestion that all those who are "more likely [to] have difficulty exercising self-control" can, consistent with Second Amendment, be subject to severe criminal punishment for merely possessing a gun for personal self-defense in the home.

Logic aside, this panel opinion is on solid ground when it notes that all persons who have committed any felony (including Martha Stewart and Scooter Libby any many others without any history of violence) are forever subject to stiff federal criminal penalties under current law for possessing a gun even in their homes for self-defense.  Whether that law and others of a similar ilk are so clearly free from serious Second Amendment scrutiny based on Heller's dicta is a question I will continue to raise in this space in response to opinions like the panel work today in Dugan.

September 20, 2011 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (13) | TrackBack

Monday, August 15, 2011

When and how will (or should) SCOTUS next address Second Amendment rights?

The question in the title of this post is prompted by this new article from today's Washington Post, which is headlined "Cases lining up to ask Supreme Court to clarify Second Amendment rights." Here is how the piece starts:

A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court.  They’ve been on a losing streak in the lower courts.

The activists found the holy grail in 2008 when the Supreme Court’s 5 to 4 decision in District of Columbia v. Heller said the Second Amendment guaranteed an individual right to own a firearm unconnected to military service.  The court followed it up with McDonald v. Chicago two years later, holding that the amendment applies not just to gun control laws passed by Congress but to local and state laws as well.

The decisions were seen as a green light to challenge gun restrictions across the country, and the lawsuits have come raining down — more than two a week, according to the anti-gun Brady Center to Prevent Gun Violence.  But it is the Brady Center that is crowing about the results.

“Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence,” the center said in a report optimistically titled “Hollow Victory?”

Even those challenging gun restrictions acknowledge that the courts have been unwilling to expand upon the basic right that most people agree Heller bestowed: the ability to keep a handgun in one’s home for self-defense purposes.

The subsequent rulings “clearly highlight the struggles lower courts are having after receiving the Supreme Court’s guidance in Heller and McDonald,” said Antigone Peyton, an Alexandria lawyer.  “They’re afraid to be out front on the law.” As Maryland’s highest court, the Court of Appeals, put it: “If the Supreme Court . . .meant its holding to extend beyond home possession, it will need to say so more plainly.”

August 15, 2011 in Second Amendment issues, Who Sentences? | Permalink | Comments (13) | TrackBack

Tuesday, July 12, 2011

Does (and should) Casey Anthony now have a Second Amendment right to buy a gun?

The provocative (but still serious) question in the title of this post is inspired by this recent post on Second Amendment jurisprudence and this new ABC News report headlined "Casey Anthony Cops May Provide Her Protection When She Leaves Jail."  Consider first the start of the news report:

The police who investigated Casey Anthony for murder -- and still believe she is guilty -- said today that they are assessing the threat to her safety and may provide police protection for Anthony when she leaves jail this weekend.

Orange County Sheriff Jerry Demings acknowledged the anger over the verdict that found Anthony not guilty of killing her 2-year-old daughter Caylee. The fury has been directed at Anthony, her parents, the judge and the jury.  "Our intelligence section is assessing the threats," said Sgt. John Allen, who helped interrogate Anthony at Universal Studios after she admitted she had lied about working there.

"A lot of people have strong sentiments about the outcome, but no one has the right to take the law into their own hands.... I would hope people step back and, regardless of their feelings, not commit another crime," Allen said at a news conference with other members of the team that investigated Anthony.

Demings said that when Anthony, 25, leaves jail Sunday, "We will assist in her departure from those premises."  If there is an "overriding public safety need," they will escort her to her destination, the sheriff said.  He added, however, "We will not be providing any elaborate protection for Casey once she leaves."

The jury's not guilty verdict has not changed the opinion of the cops who grilled Anthony and investigated Caylee's death.  When asked whether he still believed that Anthony was guilty, Allen replied, "I certainly don't have any doubt."

Consider also the interesting reality that federal gun laws (and apparently also Florida gun laws) only prohibit gun possession by persons convicted of a felony or a misdemeanor involving domestic violence.  Anthony's acquittal on all felony charges and convictions only for lying to the police would apparently not prohibit her, as a matter of state and federal statutory law, from now buying a gun upon her release from jail in a few days.

But if state or federal statutory laws (or related permitting regulations) were somehow read to prevent Anthony from buying a gun, am I wrong to suggest she might still have a fundamental constitutional right to buy a gun for self protection after Heller and McDonald?  Though not precise on the Second Amendment's contours, Heller and McDonald and subsequent lower court rulings all suggest the right of personal self-defense is closely linked and related to the core of the Second Amendment right to keep and bear arms.  The ABC News story reinforces that few persons in the US may be facing personal threats comparable to Anthony (and the same story may give her reason to worry that local police are now not likely eager to take a bullet for her).

Then again, the Seventh Circuit's recent Ezell ruling (discussed here) strongly suggests that it is only "law-abiding, responsible citizens" who get the full protection of the fundamental rights safeguarded by the Second Amendment.  Notwithstanding her jury acquittal on all felony counts, the evidence presented at Anthony's trial surely established that Anthony is not a prime example of a "law-abiding, responsible citizen."  Thus, I return to the serious question in the title of this post: Does (and should) Casey Anthony now have a Second Amendment right to buy a gun?

A few related Second Amendment posts:

July 12, 2011 in Celebrity sentencings, Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (11) | TrackBack

Saturday, July 09, 2011

Why the Second Amendment is not (and should never be?) "part of normal constitutional law"

Earlier this week, the Seventh Circuit issued a lengthy and detailed ruling in Ezell v. Chicago (available here), which issued a preliminary injunction against Chicago gun range ban based on the Second Amendment.  The Ezell ruling is both interesting and intricate; in this extended new post over at The Volokh Conspiracy, Second Amendment scholar and fan David Kopel astutely explains how and why "Ezell v. Chicago is a tremendously important case for Second Amendment doctrine."

I share Kopel's view about the importance of the Ezell opinion, and I recommend highly his summary and assessment of Ezell in his astute post.  However, as evidenced by the title of my post here, I want to take issue with a key assertion Kopel makes at the start of the (otherwise astute) concluding paragraph of his post.  Kopel finishes with these summary observation about what Ezell tells us:

In short, the Second Amendment is part of normal constitutional law.  The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights.  Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times.  As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

The problem I have is with the claim that Ezell demostratrates that the Second Amendment is "part of normal constitutional law," principally because Ezell distinguishes the Seventh Circuit's approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only "law-abiding, responsible citizens" get full Second Amendment protection.  If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a "law-abiding, responsible citizen," then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects "law-abiding, responsible citizens."

Of course, a citizen's constitutional rights can and often are diminished or extinguished as a result of conviction and sentencing for a crime.  Incarcerated prisoners, in addition to obviously losing many liberty rights, also generally have no Fourth Amendment rights and have very limited First Amendment rights.  Similarly, duly imposed conditions of probation and/or parole that are part of a formal criminal sentence can lawfully result in restrictions on otherwise constitutional activities and liberties.

However, as I have explained in some prior posts, I am not aware of any other fundamental rights expressly protected by the Bill of Rights which are forever lost or forfeited whenever a person has ever once previously broken the law or been less than "responsible" in their behavior.  Indeed, I think we would be deeply troubled by a constitutional jurisprudence that held that once a citizen was ever convicted of any crime, even just a misdemeanor (e.g., speeding, littering), then that person never again has any First Amendment right to free speech or to attend church or any Fifth Amendment right to prevent the taking of their property or any Sixth Amendment to confront witnesses or to counsel in a criminal trial. 

In posts in the wake of Heller, I had predicted and feared that Second Amendment doctrine would start distinguishing between good "law-abiding, responsible citizens" people who get protected by this fundamental constitutional right and bad "other citizens" who get little or no constitutional protection.  The important Ezell opinion suggests the doctrine is developing in just this way, and that reality leads me to balk when Kopel asserts that "the Second Amendment is part of normal constitutional law." 

Or, to cast my concerns in a different light, I suggest we all should be very concerned if and when "normal constitutional law" starts to embrace and enforce significant distinctions between good "law-abiding, responsible citizens" people who get protected by constitutional rights and bad "other citizens" who get little or no constitutional protection.  I genuinely fear that this kind of "normal" constitutional doctrine, which is now emerging in the Second Amendment setting, very well could start a path toward the significant formal and/or functional reduction of many fundamental constitutional rights and liberties.

A few related Second Amendment posts:

July 9, 2011 in Offender Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (31) | TrackBack

Friday, July 08, 2011

"Burress says he met two-year prison sentence with disbelief"

The title of this post is the headline of this piece from NFL News, which reports on a recent revealing interview with recently released Plaxico Burress.   Here are excerpts:

Plaxico Burress has seen the view from the top of life, so when he suddenly found himself behind bars, he couldn't believe how low he had sunk so quickly.

Little over a year after his touchdown catch in Super Bowl XLII capped the Giants' 17-14 upset of the previously undefeated New England Patriots in February 2008, Burress was imprisoned on a felony weapons charge, the result of him accidentally discharging an unlicensed handgun in a Manhattan nightclub.

"To go on the other side of that wall, to be on the inside of that fence, knowing what your world and life is supposed to be on the other side, when they close that door behind you, you say to yourself, 'Is this really serious?' " Burress told Fran Charles in an exclusive interview on NFL Network's "NFL Total Access" on Thursday. "I actually said to myself a couple times when I first went in, 'You know what? Somebody's going to come and get me tomorrow.' "...

The wide receiver said he originally expected to serve at most a four- to six-month sentence for reckless endangerment and that it took some time for him to accept the reality of his situation -- a two-year prison sentence.  Burress was released in June, three months early for good behavior....

Burress described his prison time as "an out-of-body experience" that changed him for the better.  He said his approach to life now is about patience, something he'll have to show plenty of as he attempts to return to the NFL.

This interview confirms and continues my concern that Plaxico's legal team failed to fight against his criminal charges as effectively as it might have give the plausible Second Amendment defense that I still think he could and should have mounted.

Some related posts on the Burress cases:

July 8, 2011 in Celebrity sentencings, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Sunday, June 19, 2011

Notable Fifth Circuit ruling about who isn't covered by the Second Amendment

Thanks to the US Open, it has taken me a while to get the time to read the interesting recent Fifth Circuit ruling about the scope of the Second Amendment in US v. Portillo-Munoz, No. 11-10086 (5th Cir. June 13, 2011) (available here).  Here is a key passage from the panel majority's discussion:

The individual laying claim to the Second Amendment’s protections in Heller was a United States citizen, so the question of whether an alien, illegal or legal, has a right to bear arms was not presented, and the Court took care to note that it was not purporting to “clarify the entire field” of the Second Amendment. Id. at 2821.  However, the Court’s language does provide some guidance as to the meaning of the term “the people” as it is used in the Second Amendment.  The Court held the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. Furthermore, the Court noted that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset” before going on to say that “[w]e start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”  Id. at 2790-91.  The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens.  Illegal aliens are not “law-abiding citizens” or “members of the political community,” and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.

In a lengthy partial dissent, Judge Dennis expresses concern about the majority's ruling that raises questions about "whether aliens such as Portillo-Munoz are part of 'the people,' and have any rights at all, under the First, Second, and Fourth Amendments."  Regular readers of this blog know that what really interests me about the majority's ruling is whether and how it might impact application of the Second Amendment to another large class of persons, namely felons who are indisputably Americans, but have often are deemed excluded from the Second Amendment's protection because they were not always "law-abiding citizens" (even though they would generally seem to be "members of the political community"). 

June 19, 2011 in Race, Class, and Gender, Second Amendment issues | Permalink | Comments (1) | TrackBack

Sunday, June 12, 2011

Might concerns about porn prosecutions and gun rights be impacting SCOTUS decision-making int he violent video game case?

As many SCOTUS watchers know, the Supreme Court has been taking a long time to hand down its ruling in Brown v. Entertainment Merchants Association, the California case concerning whether restrictions on the sale of violent video games to minors violates the First Amendment (the SCOTUSblog case page here provides lots of legal background).  Because I am not a free speech maven, I have not been focused too much on the case.  But, excerpts from this new effective UPI piece on EMA prompted for me the question in the title of this post:

California should find out any day now whether its law forbidding the sale of sometimes grotesquely violent video games to minors has survived a constitutional challenge in the U.S. Supreme Court. The central issues in the case, even on the surface, are pretty meaty.

  • Whether the First Amendment allows restrictions on "offensive" content in violent video games sold to minors, and
  • Whether the state law banning the sale of games with offensive images to children falls if it fails to pass "strict scrutiny," the toughest standard of review by the courts.

Beyond those core questions, however, the case raises issues about the type of society we are building.  There would be no question about the constitutionality of the law if it restricted the sale of sexual images to minors, as opposed to violent ones.  California asks, why the difference?

Do violent, sometimes outlandishly violent games viewed by children contribute to the growing coarseness and danger in American society?  Some medical specialists believe that it does.  But when government imposes censorship, no matter how valid the reasons, does it clamp a "chill" on types of expression far beyond the targeted speech?   Media groups supporting the challenge say that it does....

California told the Supreme Court in a brief that in enacting the law the "Legislature sought to reinforce the right of parents to restrict children's ability to purchase offensively violent video games.  In doing so, the Legislature considered numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between playing violent video games and an increase in aggressive thoughts and behavior, anti-social behavior and desensitization to violence in both minors and adults."...

A federal judge, citing the First Amendment and using "strict scrutiny," declared the state law unconstitutional and issued a permanent injunction barring its implementation.  Violence cannot be considered unprotected speech under the First Amendment without the element of sex, the judge said, even when the restriction is applied to minors....

Rather than strict scrutiny, California wants the Supreme Court to review the law under the standard set by 1968's Ginsberg vs. New York: "Under the Ginsberg standard, the act must be upheld so long as it was not irrational for the California Legislature to determine that exposure to the material regulated by the statute is harmful to minors."  In addition, "The First Amendment does not require states to demonstrate proof of a direct causal link between violent video game play and harm to minors," California said in its brief.  Instead, even under strict scrutiny, "a proper application of this level of review requires that the state Legislature draw reasonable inferences based on substantial evidence."

The linkages (and/or jurisprudential lines of demarcation) within the First Amendment regarding violence and sexuality are clearly raised by this case:  what SCOTUS says about the regulation of minors and images of violence surely could impact regulations concerning minors and images of sexuality.  Throw in the impact of modern technology and new forms of communication (e.g., sexting involving minors and/or Weiners), and it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact porn regulations and prosecutions.

The issue of gun rights and nascent Second Amendment jurisprudence may not seem directly in play in  Brown v. EMA, but the arguments being made by California to support regulations on violent video games appear quite parallel to arguments often made to justify gun restrictions of all sorts.  Supporters of gun control often point to "numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between [access to firearms] and an increase in aggressive thoughts and behavior [and violent and] anti-social behavior."  If this kind of "substanital evidence" of potential harms to kids enables a speech regulation to survive strict scrutiny under the First Amendment in EMA, advocates of gun control will surely be quick cite similar "substantial evidence" in support gun myriad regulations despite Second Amendment limits.  In the wake of Heller and McDonald, it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact gun rights and regulations.

June 12, 2011 in Offense Characteristics, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Saturday, June 11, 2011

Are severe mandatory minimums for certain gun crimes especially problematic after Heller?

The question in the title of this post is inspired by this Washington Times commentary from FAMM president Julie Stewart headlined " Second Amendment injustice Mandatory minimums for self-defense must end."  Here are excerpts:

In June 2008, the U.S. Supreme Court ruled that the Second Amendment to the Constitution protects an individual’s right to possess a firearm “and to use that arm for traditionally lawful purposes, such as self-defense within the home.”...   This [ruling] must ring awfully hollow to Orville Lee Wollard who, two years ago tomorrow was sentenced to two decades in a Florida prison for protecting his family with a firearm.

On a spring morning in 2008, Wollard got a panicked call from his wife.  The teenage boyfriend who had been beating up his 15-year old daughter was back at their house causing trouble.  Wollard rushed home and found the boy on the porch and his daughter with a black eye.  Wollard told the boy to leave, but instead, the boy attacked him, ripping out stitches from Wollard’s recent surgery, and then ran off with Wollard’s daughter.  When the two returned several hours later, the boyfriend began shoving Orville’s daughter around the Wollards’ home.  Wollard’s wife and eldest daughter screamed for him to do something. Wollard was frightened for his daughter’s and his family’s safety.

He grabbed his legally registered pistol and confronted the boy, again asking him to leave.  The boy stopped assaulting Wollard’s daughter.  He smiled, punched a hole in the wall, and began moving toward Wollard. Wollard, who had had firearms training as a former member of the auxiliary police force, aimed a bullet into the wall next to the boyfriend to scare him. No one was hurt, and the boy finally left.  That is where this story should have ended, but it didn’t. 

Several weeks later, the abusive boy called the police to report Wollard for aggravated assault, and Wollard was arrested.  Orville Wollard did not think he had committed a crime by protecting his family. He rejected a plea deal that would have given him probation and a felony record and instead took his case to court.  Prosecutors charged Wollard with various crimes, including shooting into a dwelling (his own house), child abuse (because the boy was under 18) and aggravated assault with a weapon.  A jury convicted Wollard of possessing and discharging a firearm, which triggered Florida’s mandatory minimum sentence for aggravated assault with a weapon.  Wollard was sentenced to the mandatory prison term of 20 years without parole.

At sentencing, the judge said, “This [sentence] is obviously excessive … if it weren’t for the mandatory minimum … I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of the event.”  For his part, Wollard told the court, “I’m amazed. I’m stunned. I have spent my life pursuing education [and] helped the community. [T]hen one day this person breaks into my house … he continues to do this, he assaults my daughter, he threatens me, I protect myself.  [N]o one is injured in this whole thing, and I’m going to prison. … And again, with all respect to [the court], I would expect this from the former Soviet Union, not the United States.”

Wollard is right.... To be clear, a jury found Wollard guilty.  Jurors apparently did not believe he acted in self-defense..... Whether this jury reached the correct conclusion is open to debate.  Whether prosecutors should have charged a crime that carried such a harsh mandatory minimum sentence bears scrutiny.

What is beyond debate is that when judges are prevented from applying sentences that are appropriate to the unique circumstances of each case, injustice is inevitable.  And when the constitutional right to bear arms is at stake, violations of the bedrock tenet of American justice -- that the punishment should fit the crime and the offender -- are all the more intolerable.

June 11, 2011 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (19) | TrackBack

Monday, June 06, 2011

"Plaxico Burress released from prison"

The title of this post is the headline of this news piece at ESPN, which gets started this way:

Plaxico Burress was released from prison Monday after serving nearly two years on a gun charge.  As he left Oneida Correctional Facility in central New York Monday morning, he hugged agent Drew Rosenhaus and shook hands.  He was wearing a black sweatshirt, black shorts, black sneakers and a Philadelphia Phillies hat.

"I just want to thank God for bringing me through one of the most trying times in my life," he said to reporters outside the prison.  "It's a beautiful day.  It's a beautiful day to be reunited with my family. I want to go home and spend some quality time with them."

"I'd like to thank everybody for their prayers and words of encouragement," he said. "I'd like to thank all my fans all around the world for the thousands of letters, for their unwavering support.  As far as football is concerned, if and when everything gets settled, when they get back on the field, I'll be ready."

I remain disappointed that Plaxico opted to serve two years in prison rather than pursue a Second Amendment defense to his gun possession charges.  However, now that PLax has done his time, he surely will be in a position to try to follow Michael Vick's NFL prison-to-star redemption path.

June 6, 2011 in Celebrity sentencings, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Thursday, May 19, 2011

Oregon Supreme Court says federal law does not allow denial of local gun permits for state marijuana users

As detailed in this AP report, today the "Oregon Supreme Court unanimously ruled Thursday that a retired school bus driver can have her medical marijuana and a concealed handgun, too." Here are the basics:

The ruling upheld previous decisions by the Oregon Court of Appeals and circuit court that determined a federal law barring criminals and drug addicts from buying firearms does not excuse sheriffs from issuing concealed weapons permits to people who hold medical marijuana cards and otherwise qualify. "We hold that the Federal Gun Control Act does not pre-empt the state's concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses," Chief Justice Paul De Muniz wrote in the ruling issued in Salem.

Cynthia Willis, one of four plaintiffs, welcomed the ruling. "I feel like a big girl now," Willis said. "I feel like a real human being now, not just a source of revenue to the county."

Leland Berger, the attorney representing Willis and other medical marijuana patients in the state, said the ruling was important in the continuing national debate over making marijuana legal to treat medical conditions. "I am hopeful we will end cannabis prohibition the same way we ended alcohol prohibition, which was by refusing to enforce federal laws within the state," Berger said....

Willis, 54, has carried a Walther .22-caliber automatic pistol for personal protection since a messy divorce several years ago. She volunteers at a Medford smoke shop that helps medical marijuana patients find growers, and teaches how to get the most medical benefit from the pound-and-a-half of pot that card carriers are allowed to possess. She uses marijuana cookies, joints and salves to treat arthritis pain and muscle spasms.

Elmer Dickens, a lawyer representing the sheriffs of Washington and Jackson counties, said the ruling provided needed clarification on whether the defendants should follow federal or state law on what has been a cloudy issue. Dickens did not anticipate an appeal to the U.S. Supreme Court, because the ruling focused so tightly on state law. "Every sheriff knows now what the rules are, and we got what we needed," he said.

The ruling also said Congress has no constitutional authority to require states to use gun licensing statues to enforce a federal law like the prohibition on handguns for marijuana users....

Oregon Attorney General John Kroger had argued in favor of the medical marijuana patients and against the sheriffs of Jackson and Washington counties who withheld handgun permits....

Nearly 40,000 Oregonians hold medical marijuana patient cards, with more than 36,000 of them for severe pain, according to Oregon Medical Marijuana Program statistics. Another 22,000 are registered as growers, and 21,000 as caregivers.

The unanimous ruling from the Oregon Supreme Court is available at this link.  It will be interesting to see if any federal officials either at the Justice Department or in Congress have any official reaction to this ruling or the broader issues or "lawful" possessors of pot and guns.  Because the pot use issue skews left and the gun possession issue skews right politically, I suspect that most federal folks and politicians will just seek to avoid having to discuss this ruling and the intersection of drug policy and gun policy in states like Oregon that tend to favor individuals on both fronts over government control.

May 19, 2011 in Drug Offense Sentencing, Graham and Sullivan Eighth Amendment cases, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, April 04, 2011

"Medical marijuana users fight for gun rights"

The title of this post is the headline of this AP article, which warms my libertarian heart. (Hat tip: How Appealing.)  Here are parts of the report:

Cynthia Willis calls up and down the firing range to be sure everyone knows she is shooting, squares up in a two-handed stance with her Walther P-22 automatic pistol and fires off a clip in rapid succession. Willis is not only packing a concealed handgun permit in her wallet, she also has a medical marijuana card. That combination has led the local sheriff to try to take her gun permit away.

She is part of what is considered the first major court case in the country to consider whether guns and marijuana can legally mix. The sheriffs of Washington and Jackson counties say no. But Willis and three co-plaintiffs have won in state court twice, with the state's rights to regulate concealed weapons trumping federal gun control law in each decision.

With briefs filed and arguments made, they are now waiting for the Oregon Supreme Court to rule. When it's over, the diminutive 54-year-old plans to still be eating marijuana cookies to deal with her arthritis pain and muscle spasms, and carrying her pistol. "Under the medical marijuana law, I am supposed to be treated as any other citizen in this state," she said. "If people don't stand up for their little rights, all their big rights will be gone."...

Oregon sheriffs are not happy about the state's medical marijuana law. "The whole medical marijuana issue is a concern to sheriffs across the country who are involved in it mainly because there is so much potential for abuse or for misuse and as a cover for organized criminal activity," said Washington County Sheriff Rob Gordon, who became part of the Willis case because his office turned down three medical marijuana patients in the Portland suburbs for concealed handgun permits. "You can't argue that people aren't misusing that statute in Oregon. Not everybody, of course. Some have real medical reasons. But ...the larger group happens be people who are very clearly abusing it."

The sheriffs argue that the 1968 U.S. Gun Control Act prohibits selling firearms to drug addicts, and they say that includes medical marijuana card holders. Their briefs state that they cannot give a permit to carry a gun to someone prohibited from buying or owning a gun. But the cardholders have won so far arguing this is one situation where federal law does not trump state law, because the concealed handgun license just gives a person a legal defense if they are arrested, not a right.

Oregon's attorney general has sided with the marijuana cardholders, arguing that the concealed handgun license cannot be used to buy a gun, so sheriffs who issue one to a marijuana card holder are not in violation of the federal law....

Sixteen states now have medical marijuana laws, according to NORML, an advocacy group. There is no way to determine how many medical marijuana cardholders also have gun permits. Patient lists are confidential, and an Oregon court ruled the sheriffs can't look at them.

NORML executive director Allen St. Pierre said Oregon courts have not been entirely medical marijuana friendly. While they have upheld the right to pack a pistol, they have also ruled that employers can fire people who use medical marijuana. "A person who uses medical cannabis should not have to give up their fundamental rights as enumerated by the Constitution,"' St. Pierre said. Gordon said he expects the gun issue to come up in other states with medical marijuana laws.

April 4, 2011 in Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (7) | TrackBack

Friday, March 04, 2011

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

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

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

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

March 4, 2011 in Second Amendment issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 24, 2011

Two notable case notes in latest Harvard Law Review

The February 2011 issue of the Harvard Law Review includes brief notes on two significant federal circuit court rulings that have both gotten considerable attention on this blog:

Second Circuit Holds Within-Guidelines Child Pornography Sentence Procedurally and Substantively Unreasonable. — United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)

En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to Be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc)

February 24, 2011 in Booker in the Circuits, Recommended reading, Second Amendment issues, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, December 30, 2010

Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)

The Fourth Circuit has added a final bit of Second Amendment fireworks to close out 2010 through a long decision today in US v. Chester, No. 09-4084 (4th Cir. Dec. 30, 2010) (available here).  Here is how the majority opinion by Chief Judge Traxler starts and ends in Chester:

The sole issue presented in this appeal is whether William Samuel Chester’s conviction for illegal possession of a firearm under 18 U.S.C. § 922(g)(9) abridges his right to keep and bear arms under the Second Amendment in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). We vacate the decision below and remand for further proceedings....

We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants.  The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal.  Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond.  Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.

Here is how Judge Davis starts and ends a quite lengthy concurrence:

In light of the highly persuasive decision of the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc), pet. for cert. pending, sustaining the constitutionality of 18 U.S.C. § 922(g)(9), the district court should have no difficulty in concluding that the application of § 922(g)(9) to offenders such as Chester passes Second Amendment scrutiny, exactly as district courts have already concluded. See United States v. Smith, 2010 WL 3743842 (S.D.W. Va. Sept. 20, 2010) (applying Skoien and sustaining statute); United States v. Staten, 2010 WL 3476110 (S.D.W. Va. Sept. 2, 2010) (same)....

I can foresee no difficulty for the district court in sustaining the constitutional validity of the application of § 922(g)(9) in this case.  Nevertheless, under the circumstances of the law’s understandably slow evolutionary course of development, I am content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.

A few related Second Amendment posts:

UPDATE:  Eugene Volokh has this effective new post discussing the Chester opinion, which has prompted an interesting comment dialogue about whether and how often minor matters get turned into domestic violence misdemeanor.  And, like the thoughtful comments below, folks at Volokh are discussing whether William Samuel Chester’s makes an effective poster-child for Second Amendment rights.

December 30, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (8) | TrackBack

Wednesday, December 15, 2010

Notable Cato review of modern Bill of Rights on their day

Tim Lynch has a this notable post (with losts and lots of links) at the Cato@Liberty blog under the simple heading "Bill of Rights Day."  The whole post is worth checking out, and here are parts that highlight some criminal justice stories:

Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter.   Let’s consider each amendment in turn....

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, insist that they can make it a crime to keep and bear arms....

The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  Government officials, however, insist that they can treat airline travelers like prison inmates by conducting virtual strip searches and crotch inspections....

The Sixth Amendment says that in criminal prosecutions, the person accused shall enjoy a speedy trial, a public trial, and an impartial jury trial. Government officials, however, insist that they can punish people who want to have a trial.  That is why 95% of the criminal cases never go to trial....

The Eighth Amendment prohibits cruel and unusual punishments.  Government officials, however, insist that jailing people who try in ingest a life-saving drug is not cruel....

It’s a depressing snapshot, to be sure, but I submit that the Framers of the Constitution would not have been surprised by the relentless attempts by government to expand its sphere of control.  The Framers themselves would often refer to written constitutions as mere “parchment barriers” or what we would describe as “paper tigers.” They nevertheless concluded that putting safeguards down on paper was better than having nothing at all. And lest we forget, that’s what millions of people around the world have — nothing at all.

December 15, 2010 in Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (4) | TrackBack

Tuesday, December 14, 2010

Another star going to NY prison for years for gun possession... and prompting more Second Amendment wondering

As detailed in this news report, "Ja Rule became the latest US rapper to face jail on a gun charge, after pleading guilty Monday in New York to attempted possession of a weapon, prosecutors said." Here are the basics:

Ja Rule, whose real name is Jeffrey Atkins, is expected to be sentenced to two years behind bars and 18 months of supervised release after pleading guilty to attempted criminal possession of a .40 caliber handgun.

Sentencing is on February 9, a spokeswoman for the Manhattan District Attorney's office said. A more severe punishment could have been expected had Ja Rule gone to trial and been convicted.

Manhattan District Attorney Cyrus Vance said that the city, which has some of the strongest anti-gun laws in the nation, is still working to stem gun violence. "Gun crimes are serious offenses and today's guilty plea should send a serious message to anyone thinking of illegally bringing a gun into New York City," he said.

The rapper was caught with the pistol in his sports car after a 2007 concert in Manhattan. He had been performing alongside rapper Lil Wayne who was also charged with gun possession in a separate arrest and spent much of 2010 in prison.

Though I do not know all the details surrounding Ja Rule's gun possession and the plea deal his attorney's worked out here, I do know that I continue to be disappointed and somewhat surprised that high-profile celebrity defendants facing serious prison time for mere gun possession are not trying to actively litigate a Second Amendment defense to their prosecution.  Assuming all that the Ja Rule did wrong was to possess a handgun and that he could reasonably claim that he possessed this handgun for personal self-defense, I do not fully understand why Ja Rule and his lawyers (and his agents) would not want to try to litigate a Second Amendment claim based on Heller and McDonald through the New York state courts.

For low-profile and not-wealthy defendants, I can understand how the notoriety and economic costs of a Second Amendment challenge may make such a defense to gun possession charges not worth pursuing.  But for a rapper like Ja Rule, the notoriety could be a benefit to his career and the economic costs should not be a show-stopper.  (Indeed, I suspect some public interest lawyers might even take on a high-profile constitutional case like this at a discount.)   Moreover, Ja Rule would likely be able to stay out on bail while this kind of claim was litigated, and the prospects for a good plea deal would not seem to get much worse from the decision to litigate a constitutional challenge to the very law with which the defendant is charged.

If Ja Rule has a long criminal history of other offenses or if there are other factors preventing him from being a sympathetic Second Amendment litigator, then I guess I understand why he might accept two-years in prison for simple gun possession.  But lots of defendants get much less prison time for crimes that seem much worse and do not have even the patina of the exercise of a fundamental constitutional right.  Thus, I never quite understand why defendants like Ja Rule and Plaxico Burress and Lil Wayne accept deals that mean long stretches in prison for doing something that a majority of the Supreme Court might well say is constitutionally protected to do. 

December 14, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (8) | TrackBack

Sunday, October 17, 2010

Media reports on public support for Atkins, Graham, Heller and Roper

As detailed in this new press story, which is headlined "Public backs most high court rulings," a recent report suggests that the general public is generally supportive of the Supreme Court's recent pro-defendant Eighth Amendment rulings and pro-gun Second Amendment ruling.  Here are snippets from the press story:

The Supreme Court shifted to the right four years ago when conservative Justice Samuel A. Alito Jr. succeeded moderate Sandra Day O’Connor.  And if American public opinion is the measure, the Roberts court has made the right call in most of its major decisions since then, according to a recent study that asked respondents about cases.

A strong majority favored conservative rulings that prohibited “partial-birth” abortions, upheld a homeowner’s right to have a gun, and required voters to show photo identification.

The majority also supported liberal rulings that said environmental regulators could restrict the carbon pollution linked to global warming and that struck down state laws that put juvenile criminals in prison for life without hope for parole....

Columbia University law professor Nathaniel Persily said the court historically has been “to the left of the public” on issues that attract attention, such as crime, religion and affirmative action. Along with Harvard political science professor Stephen Ansolabehere, he set out to survey the public’s view of actual cases.  Their Constitutional Attitudes Survey asked more than 1,600 respondents in 2009 and 2010 about issues that were before the Supreme Court....

Overall, the court’s current and nuanced position on the death penalty and abortion is in line with public opinion, the survey found.

A majority supports the death penalty for murder, and the court has upheld capital punishment.  The public also agreed with the rulings that ended the death penalty for those who are mentally handicapped (in 2002) and for those under age 18 at the time of their crimes (in 2005).

On abortion, the public supports –- by a 61 percent to 38 percent majority –- the Roe v. Wade ruling that set forth the right to an abortion, but it also supports regulations and restrictions, including limits on late-term abortions.

At Nathaniel Persily's webpage, I found what appears to be the July 2010 report on the Constitutional Attitudes Survey upon which this press article is based.  This 113-page "Constitutional Attitudes Field Report" (which is available for download below) is a bit hard to sort through, and I was not able to find the results showing public agreement with the 2010 Graham LWOP decision.  Also, though not reported by the press, it appears that the survey also revealed strong disagreement with the Supreme Court's 2008 Kennedy decision prohibiting the death penalty for child rapists.

Download Constitutional Attitudes Field Report_Client-1

UPDATE:  Via a helpful e-mail, Professor Persily has clarified where the Graham results can be found and what they showed:

We asked the following question (page 99 of the codebook):

In general do you agree or disagree with the following statements: A state should be allowed to sentence for life in prison a person under 18 years of age for armed burglary.

Stongly agree 10.9%

Agree Somewhat 24.6%

Disagree Somewhat 38.0%

Strongly disagree 23.4%

Refused to answer 3.1%

October 17, 2010 in Graham and Sullivan Eighth Amendment cases, Kennedy child rape case, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, October 13, 2010

"The Standardless Second Amendment"

The title of this post is the title of this new Issue Brief authored by Tina Mehr and Adam Winkler coming from the American Constitution Society. At this link, here is how ACS describes the piece:

ACS is pleased to distribute “The Standardless Second Amendment,” by Tina Mehr, an Attorney Fellow at the Los Angeles County District Attorney’s Office, and Adam Winkler, a Professor of Law at the University of California Los Angeles.  In their issue brief, Ms. Mehr and Professor Winkler discuss the state of Second Amendment law following the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago.  The authors observe that “[i]t is often said that there are 20,000 gun control laws in the United States,” and these two decisions, which “held that the Second Amendment guaranteed individuals a right to possess firearms for personal protection,” raise questions about the constitutionality of these laws.  Despite the Court’s two recent decisions, Ms. Mehr and Mr. Winkler argue that “Second Amendment doctrine is profoundly unsettled” and that “the Supreme Court failed to give [lower courts] adequate guidance on how to resolve gun control controversies.”  The authors discuss how courts have been resolving these disputes and the implications for future cases.  They conclude by contending that, “even in the absence of sufficient guidance about how to analyze Second Amendment controversies, the lower courts have consistently read Heller and McDonald to permit lawmakers wide latitude to protect public safety through gun laws.”

October 13, 2010 in Second Amendment issues | Permalink | Comments (6) | TrackBack

Saturday, September 18, 2010

Can dismissed domestic violence complaint justify revoking gun permit?

This local story from Massachusetts provides an interesting spin on both "sentencing" based on dismissed charges and the Second Amendment rights of those accused of violent behavior.  The piece is headlined "Man challenges state gun law: Constitutionality of 2005 permit revocation questioned," and here are the details:

Citing a recent U.S. Supreme Court decision, a Shrewsbury man is challenging the constitutionality of a state law under which his license to carry a firearm was revoked five years ago by Police Chief Gary J. Gemme.  Lawyer Mel L. Greenberg, who represents Raymond J. Holden, filed an amended petition in Central District Court Sept. 10 appealing Chief Gemme’s 2005 revocation of Mr. Holden’s firearms license based on a determination that Mr. Holden was not a “suitable person” to carry a gun.

In a memorandum of law accompanying his amended petition, Mr. Greenberg said the term “suitable person,” as it appears in the law, is unconstitutionally vague given the Supreme Court’s June 28 ruling in the case of McDonald v. Chicago.  The nation’s highest court ruled in a 5-4 decision in that case that the Second Amendment grants citizens a fundamental right to bear arms that cannot be infringed upon by state and local governments.

Mr. Holden, who has a place of business in Worcester, had been granted a license to carry a firearm in 2001, but the license was suspended by Chief Gemme on Sept. 14, 2005, four days after Mr. Holden was arraigned in Westboro District Court for an alleged assault on his wife. The assault and battery complaint was dismissed Oct. 3, 2005, after Mr. Holden’s wife recanted a statement in a Shrewsbury Police Department incident report.

Judge Dennis J. Brennan, since retired, then ordered the reinstatement of Mr. Holden’s license in light of the dismissal of the assault charge. Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed....

“The McDonald ruling adds the Second Amendment right to bear arms to the list of fundamental rights guaranteed to all citizens.  Consequently, any state statute or regulation which restricts or regulates such a right is subject to the strictest judicial scrutiny to insure that it reasonably regulates without infringement of that right and that its application does not result in a denial of due process rights,” Mr. Greenberg wrote.

Vague laws violate due process “because citizens do not receive fair notice of the conduct proscribed by the statute and because they do not limit the exercise of discretion by officials, creating the possibility of arbitrary and discriminatory enforcement,” the lawyer said in his memorandum.

As regular readers know, the Supreme Court and lower courts have repeatedly upheld the constitutionality of enhancing an offender's criminal sentence based on acquitted and dismissed conduct.  But, of course, in those cases the offender has been duly found guilty of some other offense. 

Here, Mr. Holden has not been convicted of anything at all.  But, of course, he also is not being sentenced, just having his gun permit revoked.  And if Police Chief Gary Gemme has a sound basis for concluding that Mr. Holden did in fact beat his wife, his permit revocation decision would seem to accord with Congress's basic view (which finds expression in federal criminal law) that a person who commits even a minor form of domestic violence should never be allowed to possess a firearm under any circumstances.

September 18, 2010 in Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, September 08, 2010

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

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

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

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

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

September 8, 2010 in Second Amendment issues | Permalink | Comments (11) | TrackBack

Friday, September 03, 2010

Seventh Circuit rejects Second Amendment arguments against § 922(g)(3)

Today through its decision in US v. Yancey, No. 09-1138 (7th Cir. Sept. 3, 2010) (available here), a Seventh Circuit panel provides yet another example of the disinclination of lower courts to extend the reach or applicability of the Supreme Court's Second Amendment work in Heller. Here is the start and end of the per curiam Yancey opinion:

Matthew Yancey pleaded guilty to possessing a firearm as an unlawful user of marijuana but reserved the right to argue on appeal that the offense of conviction, 18 U.S.C. § 922(g)(3), violates the Second Amendment as interpreted in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).  We conclude that the statute is constitutional and affirm Yancey’s conviction....

In sum, we find that Congress acted within constitutional bounds by prohibiting illegal drug users from firearm possession because it is substantially related to the important governmental interest in preventing violent crime.

September 3, 2010 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Wednesday, August 25, 2010

Another notable Second Amendment claim rebuffed by another federal judge

As detailed in this local report, which is headlined "Federal judge orders BB-gun toting woman to serve sentence," the now-familiar pattern of lower federal courts refusing to give broad application to the Supreme Court's recognizition of individual Second Amendment rights is continuing.  Here are the specifics this time around:

A federal judge Tuesday refused to delay a jail sentence any longer for a Santa Cruz Mountains woman who has been fighting to overturn her misdemeanor gun-brandishing conviction with an argument that her Second Amendment rights have been violated.

In a nine-page order, U.S. District Judge Phyllis Hamilton found that Stanford-educated medical doctor Barbara Saldinger is unlikely to prevail in her legal battle and that she should begin serving her 60-day jail sentence immediately....

A Santa Cruz jury convicted Saldinger more than four years ago of brandishing a weapon after she was arrested during a dispute with neighbors in which she displayed a BB gun as she chased them away from her horse farm.  Saldinger and her husband had been feuding with the neighbors for months over the location of the boundary between their two properties.

In appealing her case in the state and federal courts, Saldinger's lawyers maintain that her conviction should be overturned because her conduct is covered by a constitutional right to bear arms to protect property.  Among other things, Saldinger's appeal argues that recent U.S. Supreme Court rulings extending the Second Amendment to state and local regulations entitles her to a new trial.

Hamilton did not rule on Saldinger's federal claims, but did reject her bid to stay the sentence until her case is fully resolved.  The judge called her Second Amendment argument "misplaced," and indicated she does not believe, based on the facts of the case, that Saldinger's appeals will succeed.

Dennis Riordan, Saldinger's high-profile defense lawyer, said the appeal will continue.  Even if she serves her sentence, Saldinger has vowed to try to clear her name....

Deputy Attorney General Gregory Ott, who represented the state, said Hamilton's assessment of Saldinger's chance of prevailing is correct. "The Second Amendment was being thrown out there to make a merits claim," he said. "The Second Amendment doesn't have any application to brandishing."

August 25, 2010 in Second Amendment issues | Permalink | Comments (12) | TrackBack

Thursday, August 05, 2010

Seventh Circuit rejects as-applied Second Amendment challenge to § 922(g)(1), but suggests a non-violent felon might prevail

The Seventh Circuit handed down today another intriguing Second Amendment opinion in which it finds unavailing an as-applied challenge to 18 U.S.C. § 922(g)(1), the federal felon-in-possession criminal prohibition.  There are lots of interesting aspects of the panel's ruling in US v. Williams, No. 09-3174 (7th Cir. Aug. 5, 2010) (available here) -- including the fact that retired Justice Sandra Day O'Connor was one of the members of the Seventh Circuit panel (though she was not the author of the unaninous panel opinion).

But Williams strikes me as especially notable because the panel's emphasizes on the fact that the defendant challenging § 922(g)(1) had previously been convicted of a violent felony. And then the panel opinion throws in this very noteworthy paragraph:

And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams.  Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him.  See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”).  Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

It seems that the panel here in Williams may be essentially urging that a better candidate in the form of a non-violent felon, take a Second Amendment run at § 922(g)(1).

A few related Second Amendment posts on related issues:

August 5, 2010 in Offender Characteristics, Second Amendment issues | Permalink | Comments (7) | TrackBack

Thursday, July 29, 2010

Third Circuit rejects Second Amendment attack on federal crime of possessing gun with obliterated serial number

The Third Circuit has a very detailed and interesting discussion of Heller and the Second Amendment's impact on gun possession prohibitions and regulation today in US v. Marzzarella, No. 09-3185 (3d Cir. July 29, 2010) (available here). Here is how the lengthy opinion gets started and ends:

This appeal presents a single issue, whether Defendant Michael Marzzarella’s conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms.  We hold it does not and accordingly will affirm the conviction....

Second Amendment doctrine remains in its nascency, and lower courts must proceed deliberately when addressing regulations unmentioned by Heller.  Accordingly, we hesitate to say Marzzarella’s possession of an unmarked firearm in his home is unprotected conduct. But because § 922(k) would pass muster under either intermediate scrutiny or strict scrutiny, Marzzarella’s conviction must stand.

For the foregoing reasons, we will affirm the District Court’s denial of Marzzarella’s motion to dismiss the indictment and affirm his judgment of conviction and sentence [which was 9 months imprisonment].

As the opinion's penultimate paragraph suggests, the Marzzarella opinion proceeds deliberately and in so doing cover more Second Amendment ground than any other opinion I can recall from the last two years.  (I am tempted here to make a bad pun on the defendant's name by saying that the Marzzarella opinion comes with extra Heller cheese and lots of dicta toppings.) 

In short, the Third Circuit's work in Marzzarella is a must-read for anyone following the development of Second Amendment jurisprudence.  It also provides another notable data point for those hoping (or fearing) that Heller would not seriously impact the vast majority of gun control laws.

UPDATE: The Legal Intelligencer now has this report on the Marzzarella decision, which is headlined "In Wake of 'Heller,' 3rd Circuit OKs Ban on Unnumbered Guns."

July 29, 2010 in Second Amendment issues | Permalink | Comments (5) | TrackBack

Friday, July 23, 2010

Tenth Circuit dodges Second Amendment issue in gun possession prosecution involving self-defense claim

The Tenth Circuit handed down a notable decision today in US v. Pope, No. 09-4150 (10th Cir. July 23, 2010) (available here), in which the panel dodges a potentially challenging Second Amendment issue on procedural grounds.  Here is how the opinion starts:

This case began when a grand jury indicted Mark Pope for violating 18 U.S.C. § 922(g)(9). That statute makes it a federal felony for a person previously convicted of a misdemeanor crime of domestic violence to possess a gun.  In response to the indictment, Mr. Pope filed a motion to dismiss.  While he admitted to being previously convicted of a domestic violence crime, and to possessing a gun, Mr. Pope pressed an affirmative defense that, he said, precluded his conviction.  Because he possessed the gun in question only on the property where he was living and only to protect himself, others, or his property, he argued that the application of § 922(g)(9) to him would violate the Second Amendment.  While the statute may be constitutional as applied to other situations, it is, he submitted, unconstitutional as applied to the facts of his case.

The district court denied Mr. Pope’s motion to dismiss and today we affirm that decision.  We do so without passing, one way or the other, on Mr. Pope’s Second Amendment defense because an antecedent procedural problem lurks here.  All the material facts on which Mr. Pope’s motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence.  Under these circumstances, Fed. R. Crim. P. 12(b)(2) and our precedent preclude the resolution of Mr. Pope’s asapplied constitutional challenge before trial.

Notably, as the Pope opinion explains, after the district court denied the defendant's motion to dismiss, "Mr. Pope opted to plead guilty and was sentenced. In agreeing to plead guilty, however, he reserved his right to appeal the district court’s denial of his pre-plea motion to dismiss." In light of that plea decision, and now the Tenth Circuit's procedural ruling, it is unclear whether or how Pope's Second Amendment claim will ever be adjudicated on the merits.

A few related Second Amendment posts on related issues:

July 23, 2010 in Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (2) | TrackBack

Friday, July 16, 2010

Brady Center VP already making much of Seventh Circuit's ruling in Skoein

In a week full of eventful circuit opinion, the Seventh Circuit significant Second Amendment ruling in Skoien from earlier this week (basics here, commentary here) still seems to me to be the most noteworthy.  Conforming my view is this new piece at The Huffington Post from Dennis A. Henigan, the Brady Center's Vice President, which is headlined, "New Court Ruling Throws Cold Water on 'Gun Rights' Celebration." Here is how the piece starts and ends:

For those in the extremist gun lobby and the libertarian right who view the Supreme Court's recent Second Amendment rulings as assault weapons ready to blow holes in America's gun laws, the Seventh Circuit's ruling this week in U.S. v. Skoien must be a bitter pill.

Skoien is no doubt the most significant lower court ruling on the Second Amendment since the Supreme Court's decision in District of Columbia v. Heller two years ago recognizing the right of individuals to have guns in the home for self-defense.  The Seventh Circuit heard the case en banc (i.e. with all eleven judges sitting) and, by a vote of 10-1, upheld the conviction of Steven Skoien for violating the federal law barring possession of guns by individuals with misdemeanor convictions for domestic violence.  Skoien, like many other convicted gun criminals, saw Heller as a way to avoid punishment by seeking to strike down as unconstitutional the law he had violated.

The Skoien ruling is a bucket of cold water thrown on the "gun rights" celebration following the Supreme Court's decision last month in McDonald v. City of Chicago striking down Chicago's handgun ban....

It is easy to understand why libertarian bloggers like Josh Blackman are upset about the Skoien ruling, which he cites as evidence of the "epic failure" of both Heller and McDonald to truly establish a constitutional basis for the gutting of America's gun laws.  Blackman frets that Judge Easterbrook's opinion in Skoien sets forth "a framework that will likely be relied upon by most courts."  If he's right, and I think he is, strong gun control laws have little to fear from the Second Amendment.

A few related Second Amendment posts on Skoien and related issues:

July 16, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, July 15, 2010

NBA's Delonte West sentenced (lightly? harshly?) for weapons offenses in Maryland

The fact that the Supeme Court has now made clear that the Second Amendment applies to the states apparently did not prompt NBA player Delonte West or his lawyer to think he ought to try to fight his prosecution for keeping and bearing arms on a Maryland highway last year.  As detailed in this Washington Post article, West today pleaded guilty and was sentenced for his arms possession:

NBA player Delonte West pleaded guilty Thursday to two weapons charges and was sentenced by a Prince George's County judge to eight months of home detention, two months of probation and 40 hours of community service.

West had been charged with six weapons offenses and two traffic violations. He pleaded guilty to carrying a dangerous weapon -- an eight-inch bowie knife -- and illegally transporting a handgun.

At a court hearing in Upper Marlboro, West's attorney, C. Todd M. Steuart, said his client was taking the weapons from his mother's home in Brandywine to his house in Fort Washington when he was stopped by a Prince George's police officer on the Capital Beltway in the Landover area, miles away from either home. West was carrying two handguns, a shotgun, the knife and more than 100 shotgun rounds.

West told Circuit County Judge Graydon S. McKee III that he felt remorse for the incident. "I want you to know how apologetic I am to you and all the other professionals in here who do the right thing," he said. West said he often speaks to Washington area youth who have been in trouble. "I'm able to share my experiences with them," he said. "I'm able to relate to them. If I never dribble a basketball again, I think I found my calling."

Following the hearing, State's Attorney Glenn F. Ivey said the sentence will allow West to go to Cleveland for his job as a player with the Cleveland Cavaliers. West will be allowed to attend practices, home games and away games, Ivey said.

Prince George's prosecutors typically ask for a year in jail for defendants convicted of a weapons offense. Judges usually sentence defendants with no prior convictions -- like West -- to probation or home detention, Ivey said. The terms of West's plea bargain ensure he is being treated no differently than any other defendant in similar circumstances, Ivey said.

As the title to this post suggests, I am unsure whether it is fair to view West's sentence as light, harsh, or perhaps just right.  As I suggested in this post right after West's arrest, a person with a robust view of the Second Amendment might be greatly concerned that West is subject to a significant sanction for merely keeping and bearing arms.  And yet, in light of the significant prison sentences given to Plaxico Burress and Lil Wayne for gun possession in New York City, West likely should consider himself lucky to avoid any serious jail time.

July 15, 2010 in Celebrity sentencings, Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack

Notable press account of Skoein Second Amendment ruling with partisan perspectives

The AP has this notable new piece, headlined "Court's decision offers some clarity on gun laws," discussing the Seventh Circuit significant Second Amendment ruling in Skoien from earlier this week.  Here are some highlights:

A federal appeals court upheld a ban on gun possession for a domestic violence offender in a ruling that several anti-violence advocates applauded Wednesday for providing some clarity after the U.S. Supreme Court's recent landmark decision on gun restrictions....

"Even with the new definition of the Second Amendment, it (Tuesday's ruling) shows that you can still have reasonable gun restrictions," said Paul Helmke, president of the Brady Center to Prevent Gun Violence said of the appellate ruling. "This case really reaffirms that you can have limits."

But Herbert Titus, an attorney for the Virginia-based Gun Owners of America, which filed an amicus brief for the Wisconsin man called the decision outrageous. He said the Supreme Court's ruling put the Second Amendment on par with the First Amendment, which can't be taken from someone.

"No one has said you lose your First Amendment rights if you violate some law," he said. "Why should we assume just because you violated some law, the government can take away your Second Amendment rights?"

The Wisconsin case involved Steven Skoien who was convicted twice of misdemeanor domestic violence involving two different women. While on probation, the Janesville, Wis., man was arrested in 2007 for gun possession, pleaded guilty the following year and was sentenced to two years in prison....

Some experts said Tuesday's ruling at least provided some clarity for what gun restrictions might be acceptable -- if only for narrowly defined terms. "This decision clarifies for the moment that people who are situated in that same situation as the plaintiff don't have an immediate Second Amendment claim," said Nicholas Johnson, professor at Fordham University School of Law in New York.

But the ruling left much in doubt, including whether a person convicted of misdemeanor domestic violence could earn back the right to carry guns. "There will be time to consider that subject when it arises," Easterbrook wrote in his opinion.

I am pleased to see that a gun-rights group like Gun Owners of America is not backing away from its forceful views on constitutional gun rights in a case like this.  I wonder if other like-minded groups, and especially the National Rifle Association, will express a similar view. 

Especially if Steven Skoien seek Supreme Court review of his loss in the Seventh Circuit, which I expect he will, the amicus support of groups like Gun Owners of America and the NRA could play a critical role in whether the Justices feel a need to take up this issue now or only after they have deal with other post-Heller issues.

A few related Second Amendment posts on Skoien and related issues:

July 15, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, July 14, 2010

Skoien and the many challenges of Second Amendment jurisprudence

The Seventh Circuit's Skoien en banc ruling yesterday, which via this opinion by Chief Judge Easterbrook, rejects a Second Amendment challenge to the federal law criminalizing gun possession by anyone previously convicted of a domestic violence misdemeanor, reinforces my sense that Second Amendment jurisprudence is going to be very messy and very challenging in the months and years ahead.  Here are just some of the ways the Skoien majority opinion highlights these realities:

1.  Uncertainty about the standard of reviewThe Skoien opinion properly cites Heller to reject a "rational-basis test" for the Second Amendment, but then avoids giving any more content to the proper standard of review through this passage:

The United States concedes that some form of strong showing (“intermediate scrutiny,” many opinions say) is essential, and that § 922(g)(9) is valid only if substantially related to an important governmental objective.... The concession is prudent, and we need not get more deeply into the “levels of scrutiny” quagmire, for no one doubts that the goal of § 922(g)(9), preventing armed mayhem, is an important governmental objective.  Both logic and data establish a substantial relation between § 922(g)(9) and this objective.

Skoien foreshadows a "quagmire" if (and when?) Second Amendment jurisprudence has to start sorting through levels of scrutiny, and its seeks to avoid this quagmire by positing that (any and all?) gun regulations are substantially related to an important governmental objective.  But given that gun regulations are always aimed at improving public safety and that the creators of such regulations surely see their restrictions as substantially related to this goal, it is unclear how much more real bite is being given to a standard of review here in Skoien.

2.  Too ready justification for gun restrictionAs hinted above, the real problem with Skoien may not be how it avoid a clear legal test for the Second Amendment, but how readily it concludes that such a test is satisfied by the criminal law being challenged.  If preventing gun violence (i.e., "armed mayhem") is always going to qualify as an important governmental objective, and if "logic and data" of the sort set out in Skoien is adequate to justify a very broad criminal prohibition on gun possession by a large class of persons, it seem very unlikely that many (or really any) partial gun bans will be struck down.  Gun control advocates always can and often do seek to make logical and statistical arguments that a specific gun ban will reduce access to guns and thus reduce the potential for gun violence.

3.  Questionable analogies to the First Amendment and sex offender restrictions:  The majority opinion in Skoien justifies its ruling by developing or referencing analogies to First Amendment jurisprudence and sex offender restrictions, but the analogies are suspect in many respects.  As the dissent notes, there are no categories of persons who are subject to criminal prosecution just for seeking to exercise a freedom to speak.  (There are categories of speech not subject to constitutional protection, but this is analgouos to arms like bazookas and bombs that I assume are categorically excluded from coverage by the Second Amendment.)  Similarly questionable is the suggestion in Skoien that allowing registration and zoning rules for convicted sex offenders makes "generally proper" a categorical exclusion of certain misdemeanant from a fundamental right expressly protected by the Bill of Rights.

As my comments above suggest, I am unimpressed by the constitutional method in Skoien.  For this reason (and others), I also find the ultimate ruling not so convincing.  But the point of this post is not merely to dicker with the outcome; rather, I principally wanted to highlight how hard it is going to be for courts to sort through all the challenging constitutional issues implicated by modern gun restrictions and the new constitutional gun rights set out in Heller and McDonald.

A few related Second Amendment posts on Skoien and related issues:

July 14, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (28) | TrackBack

Tuesday, July 13, 2010

Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment

Regular readers and Second Amendment junkies may recall the Skoien case in which a Seventh Circuit panel suggested that the Second Amendment may not permit the federal categorical prohibition on the possession of guns by persons previously convicted of a domestic violence misdemeanor.  The full Seventh Circuit took the case up en banc, and today it reverses course via this opinion by Chief Judge Easterbrook.

Both Chief Judge Easterbrook's majority opinion and Judge Sykes' lengthy dissent have lots and lots of very interesting and important passages concerning the natures, scope and future of Second Amendment jurisprudence.  Also, both opinions include lots and lots of cites to leading post-Heller scholarship.  In short, this is a must-read and a case that is definitely worth continuing to watch not only if/when the defendant seeks SCOTUS cert review, but also to see if the usual gun right groups will express concerns with some of the pro-gun-restriction language that Chief Judge Easterbrook's opinion now makes the law of the Seventh Circuit. 

Indeed, given the on-going debate over the state and fate of Chicago's new gun regulations after McDonald, I think Skoien (the opinion, not the defendant) is now going to be Chicago Mayor Richard Daley's best friend.

A few related Second Amendment posts on Skoien and Chicago gun laws:

July 13, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (7) | TrackBack

"Beyond Guns: N.R.A. Expands Agenda"

The title of this post is the headline of this interesting article in today's New York Times concerning how the National Rifle Association is planning to continue pushing for broader gun rights in the wake of the Second Amendment rulings in Heller and McDonald.  Here are snippets:

Fresh off a string of victories in the courts and Congress, the National Rifle Association is flexing political muscle outside its normal domain, with both Democrats and Republicans courting its favor and avoiding its wrath on issues that sometimes seem to have little to do with guns....

The N.R.A.’s expanding portfolio is an outgrowth of its success in the courts, Congressional officials and political analysts said. With the Supreme Court ruling last month for the second time since 2008 that the Second Amendment guarantees an individual the right to have a gun, the N.R.A. now finds that its defining battle is a matter of settled law, and it has the resources to expand into other areas.

When the N.R.A. had a narrower range of targets, it relied on a core group of political figures and met with stiffer resistance from vocal gun control advocates in Congress and outside groups. It now has freer rein to leave its mark politically on issues that once seemed out of its reach....

N.R.A. officials say they are determined to protect gun rights even if it means using the group’s $307 million budget and membership of more than four million gun owners to influence ancillary issues. “What you’re seeing is a recognition that support for the Second Amendment is not only a very powerful voting bloc, but a very powerful political force.” Chris W. Cox, the N.R.A.’s chief lobbyist, said in an interview last week at the group’s Washington office, a few blocks from the Capitol....

But the group’s muscle has generated tensions with some gun owners themselves, who do not like the idea of the N.R.A. straying into areas outside its core base and aligning itself with Democrats as it broadens its agenda.

The headline on a recent blog post from a rival faction, the Gun Owners of America, singling out the N.R.A.’s exemption from the campaign finance bill, captured the sentiment: “The N.R.A. Sells out Freedom to the Democrats.”

A point of contention on both the left and the right is the N.R.A.’s close working relationship with Mr. Reid, the Senate leader who helped get a number of pro-gun rights measures included in broader bills.

That relationship has led some gun rights supporters to lobby against the idea that the N.R.A. might endorse Mr. Reid in his tough re-election campaign this November in Nevada. The N.R.A. is not tamping down speculation. While Mr. Cox said the group had not decided on any endorsements, he pointed to what he considered an unattractive alternative if Mr. Reid loses and the Democrats hold power. “I’ll give you four words: Majority Leader Chuck Schumer,” he said.

July 13, 2010 in Elections and sentencing issues in political debates, Second Amendment issues | Permalink | Comments (1) | TrackBack

Wednesday, July 07, 2010

Second Amendment lawsuit already filed against new Chicago gun regulations

As detailed in this brief report, a lawsuit has already been brought challenging the new gun regulations that were adopted in Chicago last week. Here are the basics:

As trader on the Chicago Mercantile Exchange who owns a farm is among a handful of people suing the city of Chicago and Mayor Richard Daley, claiming the new gun control ordinance infringes on their constitutional rights.

Chicago aldermen passed the ordinance last week, just four days after the U.S. Supreme Court struck down Chicago's longtime handgun ban on June 28.  The suit, filed Tuesday, asks the U.S. District Court to declare the ordinance "null and void" and prohibit the city from enforcing it.

The ordinance requires anyone who wants to keep a handgun at home to obtain a Chicago firearm permit, take firearms training and have no convictions for a violent crime, unlawful use of a firearm or two or more charges of driving under the influence of drugs or alcohol. Each weapon must be registered, and owners can only register one weapon each month, according to the ordinance.

The National Rifle Association immediately threw its support behind the lawsuit.  And the Illinois Association of Firearms Retailers is among those named as a plaintiff in the suit.

Thanks to David Kopel via The Volokh Conspiracy, I see that the complaint in this suit is available at this link.

Some old and new related posts on state litigation and McDonald

July 7, 2010 in Second Amendment issues, Weblogs, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 03, 2010

Should local Wisconsin DA be lauded or lambasted for his broad reading of Heller and McDonald?

Thanks to this post by Eugene Volokh, I see that at least one law enforcement official thinks that Heller and McDonald should be interpretted quite broadly.  Here are snippets from this press release issued last week issued by the DA of Wisconsin's Jackson County:

Yesterday, ... the [Supreme] Court declared that the right to keep and bear arms is a fundamental right, and that self-defense is at the core of the freedoms protected by the amendment.

This Supreme Court ruling is binding on all states and local governments, and immediately renders some of Wisconsin’s current laws unconstitutional. Therefore, in keeping with my oath to uphold and defend the Constitution, I hereby declare that this office will no longer accept law enforcement referrals for violations of the following statutes:

  • Section 167.31, prohibiting uncased or loaded firearms in vehicles;
  • Section 941.23, prohibiting the carrying of concealed weapons, including firearms;
  • Section 941.235, prohibiting the possession of firearms in public buildings;
  • Section 941.237, prohibiting the possession of firearms in establishments where alcohol may be sold or served; and,
  • Section 941.24, prohibiting the possession of knives that open with a button, or by gravity, or thrust, or movement.

All of these statutes constitute unjustifiable infringements on the fundamental right of every law-abiding American to arm themselves for self-defense and the defense of their loved ones, co-workers, homes and communities. This change also invalidates Jackson County Ordinance Sections 9.01 (firearms in public buildings) and 9.29 (CCW)....

As with the other fundamental rights, such as the freedom of speech, of religion, of association, or of security in our homes, persons, and effects, government limitations on fundamental rights are lawful only in the rare case that the state can show a compelling governmental need that can be accomplished only by enacting a narrowly-tailored restriction, in terms of time, place and manner.  Clearly, a blanket prohibition against carrying your loaded firearm in your personal vehicle does not pass that test....

The fact is, criminals don’t pay attention to gun laws, only we good folks do.  After 15 years of criminal law practice, I can state positively that when criminals resolve to harm someone, no law will stop them. These so-called “public safety” laws only put decent law-abiding citizens at a dangerous disadvantage when it comes to their personal safety, and I for one am glad that this decades-long era of defective thinking on gun issues is over.

I will watch for the legislature to make needed corrections in these areas. In the meantime, while I am happy to declare that we will follow the Supreme Court’s ruling, I want to emphasize that with fundamental rights come grave responsibilities, and I will continue to vigorously enforce the laws against unlawfully using firearms, such as the prohibition against felons being armed; going armed while intoxicated; using a firearm to commit a crime; and endangering safety by negligent handling of a weapon, to name just a few.

In his post on this press release, Eugene Volokh adds these comments:

This strikes me as an overreading of McDonald and Heller, which made clear (whether or not correctly) that concealed carry bans and bans on carrying into public buildings are constitutional. But a D.A. is entitled, given his prosecutorial discretion, to refuse to enforce laws that he believes to be unconstitutional, even if the courts think the laws are constitutional.

As the title to mt post indicates, I am very interested in reader reactions to the express statement by a local DA saying he will, on questionable constitutional grounds, refuse to enfore a duly enacted state law.  Do folks think this is an appropriate way to respect fundamental right or a dangerous example of an executive official taking too much of the law into his own hands?

July 3, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, July 01, 2010

Chicago's gun control response to the McDonald ruling

This AP story, which is headlined "Mayor Daley lays out strict gun rules for Chicago," provides the new sure-to-be-challenged gun regulations that Chicago has in the works now that the Supreme Court has made clear that it has to comply with the Second Amendment:

With the city's gun ban certain to be overturned, Mayor Richard Daley on Thursday introduced what city officials say is the strictest handgun ordinance in the United States.

The measure, which draws from ordinances around the country, would ban gun shops in Chicago and prohibit gun owners from stepping outside their homes, even onto their porches or garages, with a handgun....

"As long as I'm mayor, we will never give up or give in to gun violence that continues to threaten every part of our nation, including Chicago," said Daley, who was flanked by activists, city officials and the parents of a teenager whose son was shot and killed on a city bus while shielding a friend.

The ordinance, which Daley urged the City Council to pass, also would:

  • Limit the number of handguns residents can register to one per month and prohibit residents from having more than one handgun in operating order at any given time.
  • Require residents in homes with children to keep them in lock boxes or equipped with trigger locks.
  • Require prospective gun owners to take a four-hour class and one-hour training at a gun range. They would have to leave the city for training because Chicago prohibits new gun ranges and limits the use of existing ranges to police officers. Those restrictions were similar to those in an ordinance passed in Washington, D.C., after the high court struck down its ban two years ago.
  • Prohibit people from owning a gun if they were convicted of a violent crime, domestic violence or two or more convictions for driving under the influence of alcohol or drugs. Residents convicted of a gun offense would have to register with the police department.
  • Calls for the police department to maintain a registry of every handgun owner in the city, with the names and addresses to be made available to police officers, firefighters and other emergency responders.

Those who already have handguns in the city — which has been illegal since the city's ban was approved 28 years ago — would have 90 days to register those weapons, according to the proposed ordinance.

Residents convicted of violating the city's ordinance can face a fine up to $5,000 and be locked up for as long as 90 days for a first offense and a fine of up to $10,000 and as long as six months behind bars for subsequent convictions.

Perhaps readers can share their views as to which of these proposed regulations seem most likely to withstand or wither under a Second Amendment attack based on Heller and McDonald.

July 1, 2010 in Second Amendment issues | Permalink | Comments (12) | TrackBack

Wednesday, June 30, 2010

Interesting details about the first(?) post-McDonald suit brought in North Carolina

This local story out of North Carolina provides some of the interesting details surrounding the first high-profile challenge to a state gun law in the wake of the McDonald Second Amendment ruling earlier this week:

The same day the U.S. Supreme Court issued a ruling that gun rights advocates saw as an open door to challenge the constitutionality of firearms restrictions, a lawsuit was filed in federal court in North Carolina seeking an injunction against the governor and others from declaring states of emergency that restrict who can carry guns in public.

The suit was filed Monday by Second Amendment Foundation, Grass Roots North Carolina and three individuals against Gov. Bev Perdue, Reuben F. Young, secretary of the state Department of Crime Control and Public Safety, Stokes County and the City of King....

The North Carolina case, filed in the state's eastern federal district, questions whether state laws limiting who can carry guns in states of emergency are overreaching.  The suit also contends that government officials, under the state of emergency law, are allowed to prohibit the purchase, sale and possession of firearms and ammunition — actions the plaintiffs describe as violations of their Second Amendment rights.

Paul Valone, president of Grass Roots North Carolina, a gun rights advocacy group, said the suit was filed, in part, to test whether the state can impose such restrictions in times of emergency. "Not only will it get to that," Valone said Tuesday. "It will set binding precedent."

Under North Carolina law, the governor can declare states of emergency as can municipalities and counties.  Since Sept. 1, 2004, according to the lawsuit, at least a dozen states of emergency have been declared by a North Carolina governor.  All but one were weather-related — for hurricanes, tropical storms, snow and ice.  One was for the 2008 wildfire that swept through Hyde, Tyrell and Washington counties.

In some towns and cities, though, states of emergency are declared when large crowds are expected to gather in small places.  In such circumstances, law enforcement officers are able to confiscate weapons.

King, a Stokes County town of about 4,700 people nearly seven miles north of Winston-Salem, was named in the suit because in February, the mayor declared a state of emergency after a fierce winter snow and ice storm felled trees and damaged properties.  The mayor did so, according to city administrators, so that King could be a candidate for federal funds to help with the cleanup after the storm....

State law enforcement advocacy groups and North Carolinians Against Gun Violence, an advocate for gun controls, declined to comment about the specifics of the case.  "We want to wait for more input from law enforcement," said Roxane Kolar, executive director of North Carolinians Against Gun Violence.

Some old and new recent related posts on state litigation and McDonald

June 30, 2010 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Effective review of state gun laws likely to be challenged after McDonald

The AP has this effective new piece, headlined "Gun law challenges likely after high court ruling," which reviews the state gun restrictions that might soon be subject to post-McDonald litigation. Here is the article's list:

Among other laws already facing lawsuits or expected to be challenged:

  • Age limits that bar people younger than 21 from buying or owning guns
  • Lockbox and trigger-lock requirements to keep guns away from children
  • One-gun-a-month purchase limits in California, Maryland, New Jersey and Virginia
  • Georgia's prohibition on carrying guns into churches
  • Bans on guns in bars
  • California's outlawing of certain handguns
  • Assault weapons and ammunition bans
  • Federal and state prohibitions aimed at keeping domestic violence offenders from having guns.

I would be interested in hearing reader views on which of these laws seem most likely and least likely to survive Second Amendment challenges.

June 30, 2010 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Tuesday, June 29, 2010

The "Silent Six" states worth watching for post-McDonald Second Amendment litigation

Back in October 2009 the Supreme Court accepted cert in the McDonald case, I asked in this post "What state and local issues will be litigated the most if (when?) Heller is incorporated?".  Though that post did not generate many responses, I suspect this question is now on the minds of many government lawyers who may be tasked with having to defend state and local gun regulations against new Second Amendment attacks in the wake of McDonald.

Though a diverse array of gun regulations will likely be subject to a diverse array of post-McDonald Second Amendment attacks in lower courts, I will be watching most closely how Second Amendment litigation unfolds in the six states that lack any state constitutional provisions concerning arms or gun rights: California, Iowa, Maryland, Minnesota, New Jersey and New York.  (Professor Eugene Volokh long ago created on-line this terrific list of state constitutional provisions concerning arms.)  Here are at least three reasons why these states — which I will call the "Silent Six" (or should it be Silencer Six) —  seem worth watching extra closely after McDonald:

1.  Lack of any controlling state constitutional law precedents.  In states with constitutional provisions concerning arms, there will be some judicial precedents that state judges can consider and reference when sorting through new Second Amendment claims.  But in the "Silent Six," state judges will be working on a mostly blank jurisprudential slate.  These state judges can and surely will look for guidance from gun rulings from other jurisdictions.  Still, the state judges in the "Silent Six" states will have a unique freedom (and unique necessity) to develop Second Amendment jurisprudence without any existing law to restrict or guide them.

2.  Large, diverse states with urban and rural settings.  Most of the "Silent Six" states are, relatively speaking, pretty big with big populations spread diversely around the state.   There are many rural parts of New York and California, for example, that are likely to be favorable to gun rights and to have local judges sympathetic to an expansive view of gun rights.  But there are also many urban centers in these states that tend to be hostile to gun rights and likely have local judges who reflect local attitudes.  Especially if and when early Second Amendment challenges are brought in these "Silent Six" states, early outcomes may turn on just where in the state a challenge is initially brought (and on which local judges are most eager to rule quickly on these claims).

3.  Mostly blue and politically important, dynamic states.  Most of the "Silent Six" tend to vote for Democrats, though Minnesota and New Jersey right now have high-profile Republican Governors.  Meanwhile, California, Maryland and New York have important state-wide elections taking place this November, and Iowa is where all Presidential campaigns get started.  These realities could make early constitutional litigation over state's gun regulations a hot political topic in the months (and years) ahead in the "Silent Six."  Against the backdrop of developing Second Amendment litigation, I wonder if former federal prosecutor and now Republican NJ Governor Chris Christie will continue to defend strict NJ gun control as he seemed to do in this interview with Sean Hannity back in October.  Similarly, as California laws get challenged, I wonder if Republican candidate Meg Whitman will stick with this reported statement last year that she "believes tough gun laws like assault weapon bans and handgun control are appropriate for California."

Some old and new recent related posts on state litigation and McDonald

June 29, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, June 28, 2010

Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

As regular readers know, I have always had a hard time squaring the Heller opinion's doctrinal embrace of an individual Second Amendment right to keep and bear arms for self-defense with its dicta suggesting that former felons can still be criminally punished (sometimes severely) for gun possession.  The Supreme Court's explanation today in its McDonald opinion as to why and how Heller now applies to the states continues to puzzle me concerning the linkage of Second Amendment doctrine and dicta.

As for doctrine, Justice Alito's chief opinion calls self-defense "a basic right" and explains that "in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right. Slip op.at 19 (emphasis in original).  In addition, Justice Alito's opinion repeatedly describes Second Amendment rights as "fundamental," and it expressly rejects the Respondents' arguments that "in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause."  Slip op. at 33.  In short, individual gun rights are "fundamental," they help safeguard another "basic right,"  and they must not be treated as "second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees." 

But can anyone think of any other "fundamental" right, which fosters another "basic" right and is a "Bill of Rights guarantee," that legislatures can categorically and forever prohibit former felons from exercising?  Consider the First Amendment: would it be constitutional to prohibit former felons from writing a newspaper op-ed or from attending a church after they have fully completed their lawfully imposed punishment?  Or consider the Fifth Amendment: would it be constitutional to prohibit former felons from receiving just compensation when their property is taken?   (Of course, allowing former felons to retain some Second Amendment rights could pose a threat to public safety, but Justice Alito rightly notes that many constitutional rights have "controversial public safety implications."  Slip op. at 35-36.)

And yet, toward the end of his opinion, Justice Alito in dicta "repeats [Heller's] assurances" that the Court's Second Amendment rulings do "not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons'."  Slip op. at 39-40.  But doesn't this dicta essentially connote that the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees"?

Some older posts on the Heller and felon gun rights:

June 28, 2010 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (44) | TrackBack

The likely state criminal litigation impact of McDonald and state applications of the Second Amendment

Even before having a chance to skim the Supreme Court's important McDonald ruling concerning the application of the Second Amendment to the states, I can already predict one of its likely (and most consequential?) impacts:  lots of state court litigation over state criminal laws concerning the possession and use of firearms. 

As regular readers of this blog know, the vast majority of persons who have sought to expand and extend the Supreme Court’s landmark Second Amendment ruling in Heller in the last two years have not been folks like Otis McDonald, the lead plaintiff in the case decided by the Supreme Court today.  Rather, the most common Second Amendment litigant has been a federal defendant charged with some form of gun possession crime. Though these litigants have not yet had much success when pressing claims that Heller precludes or impacts federal efforts to criminalize certain problematic uses and possession of firearms, they have forced lower federal courts to grapple with the reach and limits of Second Amendment rights in a variety of criminal justice settings. 

Now that the Supreme Court has clarified that the Second Amendment applies to the states, there are likely a significant number state criminal defendants who will now start urging state courts to decide that the Second Amendment should block some state prosecutions based on gun possession and use.  And the many divisions in the McDonald opinion probably ensures that lower courts will be divided when ruling on these issues.

June 28, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (5) | TrackBack

SCOTUS decides Second Amendment applies to the states in 5-4 opinion

Here is the early report from SCOTUSblog on the long-anticipated McDonald Second Amendment incorporation decision:

Alito announces McDonald v. Chicago: reversed and remanded. Gun rights prevail.

The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense.

Stevens dissents for himself. Breyer dissents, joined by Ginsburg and Sotomayor.

Here is more from the SCOTUSblog folks:

The majority seems divided, presumably on the precise standard.

The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.

Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause. 

Thomas thinks the Amendment is incorporated, but not under Due Process. He appears to base incorporation on Privileges or Immunities.

The full opinion, which runs a full 214 pages, is available here.

June 28, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, June 24, 2010

Mark your calenders for Monday, June 28, Second Amendment fans

With the release of a ruling in Skilling and the other honest services cases (basics here) and also a fascinating AEDPA habeas ruling in Magwood (basics here), criminal justice fans now only await one final decision from the Justices this Term.  But it is a doozy: the McDonaldSecond Amendment incorporation case concerning state and local restrictions on gun rights.  And according to the Court, that opinion will be handed down on Monday, June 28, which will be the last day of the SCOTUS Term.

Based on the authorship of the opinions that have been handed down, the folks at SCOTUSblog predict that Justice Alito is the main author of the main opinion in McDonald.  That prediction should make criminal justice fans especially eager and excited to learn on Monday what the Court says about the Second Amendment and the impact of Heller on the states.  As the only former prosecutor in the Heller majority, I suspect Justice Alito may be more attentive than some other Justices to the potential echoes of Heller and now McDonald for state criminal justices systems.

Anyone dare to predict the outcome and voting patterns in McDonald?  Anyone think I am foolish to hope (and/or fear) that McDonald will turn out to be the biggest and most consequential criminal justice decision of the Term?  Anyone think there is a chance that selective incorporation (an idea I pitched in this McDonald amicus brief could carry the day).

June 24, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 10, 2010

An (amusing and telling) attack on Elena Kagan's potential to be "activist judge" who "will undermine Americans' gun rights"

One reason I have been a fan of the Supreme Court's Second Amendment work in Heller is because the ruling should help bring an end to simplistic (and, in my view, misguided) attacks on "activist judges" from the right.  Because it was the so-called conservative wing of the Supreme Court that cast all the votes to strike down DC's handgun ban as unconstitutional, Heller seemed to make it impossible for those on the right to hurl the "activist" invective against any and every jurist who ever declared unconstitutional a duly-enacted piece of legislation.

Of course, I was wrong to assume that Heller itself would serve as an epitaph for the use of "judicial activist" as a vituperative accusation.  And, as evidenced by these sections of this amusing Washington Times editorial attacking Elena Kagan's approach to the Second Amendment, it seems that the activist label can still be hurled at someone inclined to uphold gun regulations:

[Ms. Kagan's] memos to Justice Marshall foreshadow an activist judge who wouldn't hesitate to fall back on her own personal views to override policy decisions made by elected officials. She clearly counseled Justice Marshall on how he should rule based upon whether she thought policies made "sense."...

Ms. Kagan is Justice Sonia Sotomayor's soul sister when it comes to gun control.  Last year, during her confirmation hearings, Ms. Sotomayor insisted the Supreme Court had never found that an individual right to self-defense exists.  Two of Justice Sotomayor's own appeals court decisions came to the same conclusion.  One ruling denied there is an individual right to self-defense.  In another case, even after the Supreme Court struck down the District's gun ban, Judge Sotomayor opined that any restrictions on self-defense would pass constitutional muster so long as politicians who passed it said they had a good reason.

According to the Washington Times, Kagan is to be faulted as a potential "activist" judge because she apparently would "fall back on her own personal views to override policy decisions made by elected officials."  And yet Justice Sonia Sotomayor, Kagan's "soul sister" is to be faulted for not being willing to override duly enacted laws just because "politicians who passed it said they had a good reason."  Huh?

June 10, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, May 17, 2010

Interesting data and discussion about guns in DC roughly two years after Heller

With Graham and Comstock now decided, I think the biggest constitutional law case still pending for con law and criminal justice fans is probably the McDonald Second Amendment incorporation case.  (There are a bunch of other significant SCOTUS sentencing cases still pending --- BarberCarr, Dillon, Dolan to name a few --- but I suspect most of these will be decided on relatively narrow grounds.)   And with McDonald on the horizon, I found these data and discussions from this Wall Street Journal article about DC's post-Heller gun regulations quite interesting:

The U.S. Supreme Court overturned the District of Columbia's 32-year ban on handguns in 2008, a victory for the gun-rights lobby that seemed to promise a more permissive era in America's long tussle over gun ownership. Since then, the city has crafted rules that are proving a new, powerful deterrent to residents who want to buy firearms....

Eleanor Holmes Norton, the District of Columbia's non-voting representative in Congress, is blunt about the point of the city's laws: discouraging gun ownership. "To get them you have to go through a bureaucracy that makes it difficult," she said in an interview. Her constituents tend to oppose firearms because of gun violence, she said. "Nobody thinks we would have fewer shootings and fewer homicides if we had more relaxed gun laws."

Kenneth Barnes, 65, became a D.C. gun-law activist after his son was shot to death in his clothing store in 2001. He supports the city's current gun law. "I have no issue with the right to bear arms," but the Supreme Court's decision gave the city the right to set gun laws for its citizens, he said. "What we're talking about is self determination."

In 2009, the first full year the law was in effect, homicides in the city dropped to 143 from 186 in 2008. The 2009 total was the lowest since 1966....

Gun-control supporters say the District is acting within the Constitution, in that Heller didn't outlaw all gun control. "From our perspective, there's a broad range of gun-control steps that can be taken that would be constitutional post-Heller," said Chad Ramsey of the Brady Campaign to Prevent Gun Violence.

Wayne LaPierre, executive vice president of the National Rifle Association, said the city's new rules strike against the spirit of the Supreme Court's decision. "Can you go out and buy guns in D.C. and defend yourself as the Supreme Court said you should be able to? No. The citizens can't experience the freedom from a practical level. What good is winning it philosophically?"

In the months since the Heller decision through April, the city has registered 1,071 guns, including 756 handguns and 315 "long" guns, such as rifles. That's a rate of about 181 guns per 100,000 residents. Before the Supreme Court decision, the rate of registered guns in Washington was close to zero.

Across the U.S., federal law-enforcement agencies estimate the total number of guns is between 200 million and 350 million, which results in a rate between 65,000 to 114,000 guns per 100,000 people nationally.  A 2006 survey by the University of Chicago's National Opinion Research Center found gun ownership in 34% of all homes.

Right now, the legal advantage lies with the District. In a federal District Court ruling in March, Judge Ricardo Urbina upheld the city's gun law, writing that the Supreme Court didn't rule gun registration "unconstitutional as a general matter."  The judge concluded the city had the power to limit the kinds of firearms permissible and the size of ammunition magazines.

As regular readers know, I think many of the federal and state laws that categorically prohibit and threaten to severely punish any non-violent felon who takes possession of any kind of gun "strike[s] against the spirit of the Supreme Court's decision."  But, because dicta in Heller suggests that these laws were not unconstitutional as a general matter, those federal laws continue to operate to prevent millions of persons from keeping and bearing arms.  If (and when) the McDonald Second Amendment incorporation case opens up constitutional attacks on these laws at the state level, a cottage industry of gun regulation litigation is sure to ensue.

May 17, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack