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