Friday, April 13, 2012

A justifiably(?) long prison term for exteme child-care stupidity

It is really hard to have any sympathy for really mean people who hurt children, but this local sentencing story from Illinois, headlined "Rockford man gets 12 years for burning child with iron," leads me to wonder whether we ought to have perhaps a little sympathy for really stupid people who hurt children. Here are the details:

A man who ironed a shirt while it was on the back of an 18-month-old girl pleaded guilty Wednesday to aggravated battery to a child and was sentenced to 12 years in prison. Elliott Moore, 43, of Rockford was sentenced by Judge Rosemary Collins, Winnebago County State’s Attorney Joe Bruscato announced today.

On Feb. 5, 2010, Rockford police officers were sent to Rockford Memorial Hospital to take a report of aggravated battery to a child. Officers learned that the child had a large, open burn mark in the middle of the back.

The child’s mother reported Moore was her live-in care provider who watched her children while she was at school. The mother said on Feb. 4, 2010, she returned home and found Moore standing in the parking lot holding a bag of his clothes, stating he had to go to work. She said he was very agitated and that she knew he did not need to be at work for quite some time. That evening, the mother indicated her daughter was up all night crying. When she changed the child’s clothing, she noticed a large, open burn on her back, Bruscato said.

During an interview with detectives, Moore said he was watching the child and a sibling and was having difficulty ironing because the child was on his lap.  He said that he placed one of his work shirts on the child’s back and ironed.  The defendant said the child woke up crying, and he saw that he had burned her back. He said he then put cold water on her back and put the child in a sleeper....

Aggravated battery to a child is a Class 2 felony with a sentencing range of three to seven years in prison.  Because of the victim’s age, Moore was eligible for an extended term — a range of three to 14 years in prison.

Perhaps I am naive to take at face value the defendant's account of how he burned this toddler, and perhaps deep evil (rather than deep stupidity) is involved here and justifies a decade+ in a cage for this crime.  Still, if the poor child ultimately has no enduring harms and if the defendant truly was just guilty of being huge idiot, I wonder if anyone else questions whether the judge here really needed to nearly max-out the defendant's sentence.

April 13, 2012 in Offense Characteristics, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (5) | TrackBack

Tuesday, February 28, 2012

Is California's prison population reduction going as well as it seems?

The question in the title of this post is prompted by this local article headlined "California prisons clearing out."  Here are excerpts:

Images of California's overcrowded prisons are so striking that the U.S. Supreme Court included two photographs of the problem in last year's landmark opinion that forced the state to address the issue.

On Friday, state corrections leaders will announce they have made an important step toward their goal to ease overcrowding, finally getting rid of the last of thousands of bunks that were crammed into day rooms, gymnasiums and other spaces to hold inmates.

In a news conference scheduled to be held at the Deuel Vocational Institution in Tracy, corrections chief Matthew Cate and other officials are scheduled to announce the end of what the department itself calls "iconic images of (the) overcrowding crisis."...

The use of what the California Department of Corrections and Rehabilitation calls "nontraditional beds" peaked at just under 20,000 in 2007, Callison said.  Their use stemmed from the prison system at one point holding twice as many inmates as the 80,000 it was designed to house.  "The degree of overcrowding in California's prisons is exceptional ..." the Supreme Court concluded in its May 2011 opinion, which described in graphic detail how officials found room to house them....

Following the court's order that the state reduce its prison population by 33,000 inmates to bring it to 137.5 percent of capacity, state officials went to work.  Gov. Jerry Brown's "realignment" plan, which shifts responsibility for some offenders considered low-level, nonviolent and nonserious to county jails, has since helped cut the prison population from about 144,000 inmates to about 127,770.

"The number of nontraditional beds had been falling since '07, but realignment has basically taken us over the finish line," Callison said.  The department hopes to reduce overall population to 137.5 percent of capacity -- about 110,000 inmates -- by June 2013.

It is surely way too early to reach a final judgment (or even a mid-stream judgment) about whether the Plata prison overcrowding litigation and California's prison-population-reduction responses has proven to be a great public policy success.  But I continue to see in the California papers positive stories like the one reported here, while I am yet to see many stories reflecting the parade of horribles sometimes described by those who opposed the various prison reduction orders during the Plata litigation. Thus the question in the title of this post.

February 28, 2012 in Prisons and prisoners, Second Amendment issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, February 24, 2012

"Second Amendment Penumbras: Some Preliminary Observations"

The title of this post is the title of this new short paper by Glenn Harlan Reynolds, which is now available via SSRN and has this on-sentence abstract: "With the Second Amendment now a working part of the Bill Of Rights in the wake of the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago, this brief Essay examines the likely extent of penumbral rights under the Second Amendment, as well as the possible effect on unenumerated rights in general of an enforceable right to arms."

A quick review of the draft leads me to conclude that Professor Reynolds sees, as do I, how the Second Amendment could now have a potentially profound impact on the application of some criminal gun laws. Consider, for example, this interesting passage from the article:

First Amendment analogies, in fact, suggest another doctrine that might apply: chilling effect.  Traditionally, violation of gun laws was treated as mere malum prohibitum, and penalties for violations were generally light.  During our nation’s interlude of hostility toward guns in the latter half of the twentieth century, penalties for violations of gun laws, especially in states with generally anti-gun philosophies, became much stiffer.  Gun ownership was treated as a suspect (or perhaps “deviant” is a better word) act — one to be engaged in, if at all, at the actor’s peril.

But with gun ownership now recognized as an important constitutional right belonging to all Americans, that deviant characterization cannot be correct.  Regulation of firearms cannot now justifiably proceed on an in terrorem approach, in which the underlying goal is to discourage people from having anything to do with firearms at all.  Laws treating fairly minor or technical violations as felonies must be regarded with the same sort of suspicion as pre–New York Times v. Sullivan laws on criminal libel: as improper burdens on the exercise of a constitutional right.

February 24, 2012 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Monday, January 23, 2012

Doesn't Heller and McDonald impact old precedents concerning federal FIP crimes?

The question in the title of this post is prompted an interesting (and I think incorrect) ruling today by a Tenth Circuit panel in US v. Games-Perez, No. 11-1011 (10th Cir. Jan. 23, 2012) (available here).  The issue and basics of the ruling are explained in the majority opinions's first paragraph:  

Defendant and appellant Miguel Games-Perez was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).  Claiming that he was unaware that he was actually a felon, Mr. Games-Perez filed a motion inlimine, seeking a pre-trial ruling that the government was required to prove that he actually knew he was a felon.   When that motion was denied, Mr. Games-Perez filed a motion to enter a conditional guilty plea under Fed. R. Crim. P. 11(a)(2), asking to reserve the right to appeal the district court’s denial of his motion in limine. The district court granted Mr. Games-Perez’s motion, pursuant to which he entered a conditional guilty plea. The district court sentenced him to fiftyseven months’ imprisonment, followed by three years of supervised release. Mr. Games-Perez appeals his sentence, which we affirm.

The majority opinion affirms the ruling that the defendant need not know he was a felon in order to be guilty of the federal crime of "felon-in-possission" of a firearm by reaffirming a 1996 ruling of the circuit that no mens rea is required as to the "is a felon" element of this federal crime.  Whether that was a sound ruling in 1996 is debatable, but it strikes me that it is a constitutionally problematic ruling in the wake of the SCOTUS Second Amendment rulings in Heller and McDonald that certain persons have a constitutional right to possess a firearm in certain circumstances.

Notably, in a separate lengthy concurrence, Judge Gorsuch assails the soundness of the 1996 precedent stressed by the majority with reference to the Second Amendment:

Following the statutory text would simply require the government to prove that the defendant knew of his prior felony conviction. And there’s nothing particularly strange about that. After all, there is “a long tradition of widespread lawful gun ownership by private individuals in this country,” and the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly. Staples v. United States, 511 U.S. 600, 610 (1994); District of Columbia v. Heller, 554 U.S. 570 (2008). At the same time, of course, the Court has expressly indicated that laws dispossessing felons are consistent with the Constitution. Heller, 554 U.S. at 626; but see United States v. McCane, 573 F.3d 1037, 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (questioning the Court’s analysis on this score). And given all this, it is hardly crazy to think that in a § 922(g)(1) prosecution Congress might require the government to prove that the defendant had knowledge of the only fact (his felony status) separating criminal behavior from not just permissible, but constitutionally protected, conduct.

But, despite this astute analysis, Judge Gorsuch feel compelled to follow the circuit's 1996 precedent rather than to conclude (as his own reasoning suggests) that Heller and McDonald makes this old precedent constitutionally suspect.  Curious -- and worrisome for anyone seriously committed to gun right and/or concerned about broad application of vague laws limiting gun possession.

January 23, 2012 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (13) | TrackBack

Wednesday, January 04, 2012

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

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

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

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

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

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

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

January 4, 2012 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (17) | TrackBack

Tuesday, November 29, 2011

Noting some notable denials of cert by SCOTUS on gun rights and CP restitution

As regular readers know, I was giddy yesterday concerning two cert grants by the Supreme Court on sentencing issues (background here): the Justices took up Apprendi's applicability to fines in Southern Union (basics here) and the application of the Fair Sentencing Act in two "pipeline" crack cases (basics here).  However, as well reported in a pair of articles by Warren Richey of the Christian Science Monitor, the Justices denied cert on a couple of notable criminal justices issues as well:

Given that the current SCOTUS Term is already chock full of hot-button issues, I am not very surprised nor very troubled that the Justices decided not to take up new gun and kiddie porn cases.  Still, on both fronts, the only real question seems to be when and how, not whether, these matters will garner Supreme Court review.

November 29, 2011 in Criminal Sentences Alternatives, Gun policy and sentencing, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 14, 2011

Might restoration of felon gun rights actually reduce recidivism?

As first blogged here, today's New York Times has a lengthy front-page article on state restoration of gun rights to former felons.  The piece is (misleadingly?) headlined "Felons Finding It Easy to Get Gun Rights Reinstated," and the suggestion throughout the article is that the public should be very concerned and quite fearful that some states now make it too easy for some felons to get their gun rights restored after having completed their sentence.  But, because recidivism rates for many offenders are often very high, some of the statistics appearing in the Times piece led me to wonder whether resoration of felon gun rights might actually reduce recidivism and enhance public safety.

The Times article rightly noted that sound data on these matters are had to assemble and assess, but the Times was able to run some notable numbers for Washington state.  Here is some of what the Times found and reported:

That [crime] 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....

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.

So the Times here reports a 13% recidvism rate for Washington state offenders with restored gun rights, but apparenently the recidivism rate is this high only due to counting of minor (i.e., misdemeanor) crimes.  As I understand these numbers, the Times found that only about 200 of the 3,300 prior offenders with restored gun rights since 1995 went on to commit a felony — roughly a 6% felony recidivism rate — and only 70 went on to commit Class A of B felonies — roughly a 2% serious felony recidivism rate.  That strikes me as an impressively low felony and serious felony recidivism rate for these offenders, especially given that states often report that half or more persons with a felony record end up committing a future offense.

Seeking general recidivism data for comparison purposes, I found this April 2008 report from the Washington State Sentencing Guidelines Commission, titled "Recidivism of Adult Felons, 2007," which reports that in Washington state the "overall rate of recidivism for men was 65.9% compared to 53.6% among women."  (I think it is fair to assume that the majority of felons seeking restoration of gun rights are men.)  Based on this data, is it fair to suggest that offenders with restored gun rights in Washington state are roughly than five times less likely to recidivate that other offenders?  (I also found this January 2011 report from the Washington State Institute for Public Policy which reports that "recidivism rates have declined" in Washington in the period from 1990 to 2006 and that "the largest reductions have been for higher risk offenders.")

This comparative data would seem to at least support a plausible working hypothesis that restoring gun rights to felons might actually reduce recidivism and enhance public safety.  Of course, there is a huge apples/oranges problem in trying to compare these recidivism rates.  I certainly hope and expect that Washington aspires to restore gun rights to former felons who appear to pose the least risk to public safety, and thus we should hope and expect recidivism rates to be generally lower for these folks than for others with a felony record.  Still, given that recidivism rates are appear to be so much lower for those who get their gun rights restored, there is a reasonable basis for at least speculating that the process and grant of restoration of rights works to provide additional encouragement for these former felons to stay crime-free in the future.

Some related Second Amendment and gun policy posts:

November 14, 2011 in Data on sentencing, Gun policy and sentencing, Offender Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (23) | TrackBack

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