Wednesday, July 14, 2010

Skoien and the many challenges of Second Amendment jurisprudence

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

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

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

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

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

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

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

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

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

Tuesday, July 13, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, July 07, 2010

Second Amendment lawsuit already filed against new Chicago gun regulations

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

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

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

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

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

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

Some old and new related posts on state litigation and McDonald

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

Saturday, July 03, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, July 01, 2010

Chicago's gun control response to the McDonald ruling

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

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

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

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

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

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

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

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

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

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

Wednesday, June 30, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 29, 2010

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

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

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

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

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

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

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

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

Monday, June 28, 2010

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

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

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

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

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

Some older posts on the Heller and felon gun rights:

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

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

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

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

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

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

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

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

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

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

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

Here is more from the SCOTUSblog folks:

The majority seems divided, presumably on the precise standard.

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

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

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

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

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

Thursday, June 24, 2010

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

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

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

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

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

Thursday, June 10, 2010

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

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

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

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

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

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

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

Monday, May 17, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, May 15, 2010

"Heller, McDonald and Murder: Testing the More Guns, More Murder Thesis"

The title of this post is the title of this piece on SSRN that is especially timely while we all await the Supreme Court's next ruling in the Second Amendment.  Here is the abstract:

We examine several aspects of the more guns, more murder hypothesis.  We find that ordinary people typically do not kill in a moment of rage, so that preventing them from owning guns will not save lives.  Societies without guns are not typically peaceful and safe.  Historically, more guns are associated with less murder.  Modern Europe nations with very high gun ownership rates have much lower murder rates than low gun ownership nations.  In the United States: the colonial period of universal gun ownership saw few murders and few of those were gun murders. More guns do not mean more murder.

May 15, 2010 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (2) | TrackBack

Tuesday, May 04, 2010

"State Court Standards of Review for the Right to Keep and Bear Arms"

The title of this post is the title of this lengthy (and newly revised) piecefrom David Kopel and Clayton Cramer available via SSRN. Here is the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues.  Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means.  Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms).

Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation.  This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

As regular readers know from a variety of prior posts, I think a lot of tough federal sentencing laws for felon-in-possession crimes might be subject to successful constitutional attack if (and when?) lower courts get serious about applying a rigorous standard of review in Second Amendment cases.

A few related Second Amendment posts:

May 4, 2010 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Friday, April 30, 2010

"Convicted Felon Sues State Over Right To Bear Arms"

The title of this post is the headline of this notable press story sent to me by a helpful reader.  Here is how the piece starts:

A Franklin man is suing the state of Tennessee for not honoring a pardon allowing him the right to bear arms. David Scott Blackwell received a felony charge for drug possession in 1988, when he was 20 years old.

"I was young and dumb and moved from a small town in Mississippi and got involved with the wrong crowd in Atlanta," said Blackwell. "I'd sold some cocaine to an undercover officer. Boom - I went to prison, went to jail."

After serving his sentence and earning a bachelor's degree in nursing, the father said he petitioned the state of Georgia for a pardon, including the restoration of the right to bear arms, which was granted on August 11, 2003.

Blackwell ran into a problem in Tennessee. "Wanted to go hunting about two years ago and went to purchase a little .22 rifle for my son, and was denied," said Blackwell.

After two years of going back and forth with the Tennessee Bureau of Investigation and the Attorney General's office, Blackwell decided to file a declaratory relief lawsuit against the State of Tennessee, Governor Phil Bredesen and Attorney General Bob Cooper.

The lawsuit was filed in Davidson County Chancery Court on Thursday morning, and served to the state later that afternoon. Cooper's office had no comment on the lawsuit, but said they are in the process of reviewing it.

"It is just amazing to me that if you have a pardon, a full pardon that specifically gives you restoration of rights that the attorney general can say 'no, you're not a person. You have no rights. You don't have the same rights as anyone else,'" said Blackwell's attorney David Raybin.

"According to the attorney general, even if the governor of Tennessee pardoned a person in Tennessee, that wouldn't help them," continued Raybin. "Under the attorney general's opinion, there's no power on the planet that can restore his right to have a firearm and I reject that. I think that's wrong."

"We call it a Department of Corrections, not a Department of Punishment," said Blackwell. "We all want people to be corrected in their behavior, but there has to be that touchdown, that goal line that somebody can attain to become a citizen again."

A few related Second Amendment posts:

UPDATE:  Thand to Blackwell's attorney David Raybin, I have a copy of the complaint filed in Blackwell v. Bredesen, which can now be downloaded here:

Download Blackwell_v_Bredesen_FILE_STAMP_copy

April 30, 2010 in Clemency and Pardons, Second Amendment issues | Permalink | Comments (10) | TrackBack

Monday, April 19, 2010

Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit

The Sixth Circuit has a fascinating little ruling today concerning expungement and gun rights today in US v. Carey, No. 09-3399 (6th Cir. Apr. 19, 2010) (available here).  Here is the heart of the defendant's argument in Carey as explained by the panel:

Carey argues that the Second Amendment to the United States Constitution gives him a fundamental right to possess or carry a firearm, and that the denial of his expungement motion for his valid conviction denied him this fundamental right, resulting in a violation of his Equal Protection and Due Process rights under the Fifth Amendment.  Essentially, Carey contends that, because expungement of his conviction would allow him to regain his Second Amendment rights, a court’s denial of expungement infringes upon his fundamental right.

The panel ruling quotes the well-worn dicta from Heller about laws prohibiting felons from possessing guns, and then rejects Carey's claim this way:

After Heller, this Court affirmed that prohibitions on felon possession of firearms do not violate the Second Amendment.  United States v. Frazier, 314 F. App’x 801 (6th Cir. Nov. 19, 2008).  In short, Heller states that the Second Amendment right is not unlimited, and, in fact, it is specifically limited in the case of felon prohibitions.  Heller, 128 S. Ct. at 2816-17.  Because Congress’s prohibition on felon possession of firearms is constitutional, it follows that the burdens associated with the congressionally-created expungement exception in 18 U.S.C. § 921(a)(20) do not violate the Second Amendment.  Accordingly, the district court did not abuse its discretion in denying Carey’s motion for expungement.

Because of both the posture of the case and the nature of the panel's ruling, the Carey decision arguably raises more questions than it answers.  Specifically, in the course of concluding merely that the district court did not abuse its discretion by denying the motion to expunge, the panel implicitly suggests that the district had discretion to grant the motion within its equitable jurisdiction.  Moreover, it is unclear if the defendant here contended that he needed and wanted to be able to possess guns in conjunction with self-defense of his home; such an assertion would implicate the core of Heller and would perhaps satisfy the Sixth Circuit standard of "compelling and extraordinary circumstances for a Court to grant" a motion for expungement. 

In other words, though affirming the denial of the expungement motion in Carey, the Sixth Circuit has perhaps indicated that the right defendant making the right showing might be able to get the right judge to grant such a motion.  Whether such a defendant will find such a judge in the Sixth Circuit remains to be seen.

April 19, 2010 in Criminal Sentences Alternatives, Second Amendment issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, April 15, 2010

Do all felons even forfeit their property rights when guns are involved?

Regular readers know that I am intrigued by the post-Heller jurisprudence which suggests that all felons (and even some misdemeanants) forfeit forever their Second Amendment right to armed self-defense in the home simply by virtue of a conviction.  Now I see from this intriguing new post at Volokh, which is headlined "The Second Amendment and the Takings Clause," that the feds and some courts seem to believe that felons (and presumably also some misdemeanants) forfeit forever their property rights in any gun simply by virtue of a conviction.  Here is the start of the Eugene Volokh's post noting a recent ruling on this topic:

Felons can’t lawfully possess guns — does it mean they can’t even arrange for their sale, and that the court may just order them destroyed? That seems to have been the government’s view in United States v. Brown (D.N.H. Apr. 9, 2010), and at least one court has apparently taken this view, but the court in this case disagreed (some paragraph breaks added):

Before he was indicted, Edward L. Brown, a defendant in the underlying criminal tax-fraud and money-laundering case, owned a number of firearms.  As a condition of his release on bail, Brown voluntarily surrendered those firearms and agreed both that the firearms would be held by Riley’s Sport Shop, Inc., pending resolution of the charges, and that he would pay all storage charges incurred. Brown was subsequently convicted of several felonies, all unrelated to the surrendered firearms....

The government relies on several decisions from other circuits and districts that seem to adopt the proposition that a convicted felon cannot lawfully divest himself of mere legal title to firearms that he can no longer lawfully possess, without thereby “constructively possessing” those firearms. Those decisions stretch the concept of “constructive possession,” as the term is used in the criminal statute prohibiting possession by felons (18 U.S.C. § 922(g)), much too far, in my view, essentially equating criminal constructive possession with even the most minimal exercise of an indicia of ownership-transferring legal title (and, ironically, thereby divesting title to personal property that the owner may not lawfully possess).

The government’s main point ... is this: A person who lawfully owns, say, a valuable gun collection just before a jury returns an unrelated felony guilty verdict (e.g., for mail fraud) can, thereafter, no longer sell, give away, or transfer legal title to that collection.  But, strictly speaking, the decisions relied upon by the government are not so clear — they do generally accept that a defendant in such a predicament cannot unilaterally direct or “dictate” the specific disposition of owned firearms, but they do not, for example, hold that title to the firearms cannot be conveyed, or that a court cannot order an appropriate disposition of such firearms, for the benefit of the defendant.

April 15, 2010 in Criminal Sentences Alternatives, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 31, 2010

"The Second Amendment and People with Medical Marijuana User Cards"

The title of this post come from the title of this Eugene Volokh post over at his Conspiracy. The post combines two of my favorite hot topics, and here is how it starts:

The AP reports that Steve Sarich — who “runs CannaCare, an organization that claims 7,000 members in the state,” which among other things “provides patients with marijuana clones or starter plants and delivers about 50 patients a week with usable marijuana” — has been told by the King County Sheriff’s Office that he may not buy a gun.

The federal law underlying the prohibition is 18 U.S.C. § 922, which bars possession of guns by (among others) anyone “who is an unlawful user of or addicted to any controlled substance,” and bars transfers of guns to such people. The sheriff’s office reported that the FBI’s National Instant Criminal Background Check System “informed us that possession of a medical drug card is sufficient to establish an inference of current use,” and that therefore the sheriff’s office can’t approve the transfer of a gun to Sarich.

March 31, 2010 in Drug Offense Sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack

Friday, March 26, 2010

Lots of gun news from DC: Gilbert Arenas gets probation for gun possession, while Dick Heller loses latest Second Amendment case

Proponents of gun rights in DC might be inclined this afternoon to remember the old saying "ya' win some, ya' lose some," after gun possessor Gilbert Arenas had a pretty good day in a DC court, while gun possessor Dick Heller had a not-so-good day in a DC court.  Here are the basic headlines and leads from coverage from the Washington Post:

Washington Wizards star guard Gilbert Arenas was spared a jail sentence Friday when a judge sentenced him to probation for bringing guns into the Verizon Center, ending a high-profile locker room confrontation with a teammate that changed the makeup of the team and Washington-area sports.

D.C. Superior Court Judge Robert B. Morin issued the sentence after a 100-minute hearing before a packed courtroom. Morin sentenced Arenas to 18 months in jail, but suspended that part of the sentence. He ordered the star to serve two years probation to begin with 30 days in a halfway house. He also ordered Arenas to serve 400 hours of community service and pay a $5,000 contribution to a crime victim's fund.

Corrections officials will determine in the next few days what halfway house he will be assigned to. Once there, Arenas will stay overnight, but be allowed to leave during the day to serve his community service.

A federal judge on Friday upheld limitations on gun ownership that the District of Columbia put in place following a 2008 Supreme Court decision overturning the city's outright ban on handguns.

Dick Heller, the plaintiff in the landmark Supreme Court case, had challenged the new regulations, claiming the registration procedures, a ban on most semiautomatic weapons and other limitations violated the intent of the high court's decision.

U.S. District Judge Ricardo M. Urbina sided with the city, saying the Supreme Court decision did not ban reasonable limits on gun ownership designed to promote public safety. 

March 26, 2010 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 25, 2010

"Jail or no jail? Fateful day arrives for Arenas"

The title of this post is the headline of this new AP piece focused on the high-profile sentencing question that will be answered at a court proceeding in DC on Friday.  Here is some background to help readers opine on the question:

The Washington Wizards three-time All-Star point guard will be sentenced Friday in D.C. Superior Court on one felony count of violating the District of Columbia's strict gun laws. Judge Robert E. Morin will decide whether Arenas does jail time or gets probation. The prosecution and defense teams stated their cases earlier this week in voluminous filings. It's all far beyond anything Arenas imagined on that December morning when he says he brought four guns to the locker room to play a prank on a teammate.

Prosecutors want Arenas to go to jail for at least three months. They point out that he lied repeatedly about why the guns were in the locker room, that he tried to cover up what happened, that he displayed a cavalier attitude about the whole affair, that he knew bringing guns into D.C. was illegal, and that he has a prior gun conviction....

Arenas' lawyers are asking for probation and community service, arguing that he was playing a misguided joke with no intention to harm anybody. They point out that the guns were unloaded, that Arenas' lighthearted comments about the incident were misinterpreted, and that he's a good role model who goes beyond the call of duty when it comes to community service. They add that he was confused about D.C.'s gun laws, and that he's already been severely punished through humiliation and the loss of tens of millions of dollars from canceled endorsements and his suspension without pay for the rest of the NBA season....

The maximum term for Arenas' crime is five years. The sentencing guidelines for someone with his record call for 6-24 months, although those guidelines also allow for probation.

A general survey of similar cases over the last two years in the city indicate that about half of the defendants convicted of Arenas' crime receive some jail time, but the mitigating circumstances vary widely.  Arenas' prior conviction — a no contest plea to carrying a concealed weapon in California in 2003 — was already a major strike against him, and the evidence revealed this week that he appeared to instigate a cover-up — as shown in a text message produced by prosecutors — has further damaged his case....

Gun control advocates will be monitoring Friday's developments closely. Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, said he thinks jail time is appropriate in Arenas' case.

I am not at all surprised that gun control advocates are eager to have a prominent person imprisoned merely for possessing a gun and are vocally calling for jail time for Arenas.  I am also not surprised, though I am a but disappointed, that gun rights advocates are not providing any support for Arenas or urging that mere gun possess should not be the basis for a term of imprisonment.  Arenas, like Delonte West and Lil Wayne and Plaxico Buress and other similar celebrities who get in trouble for problematic gun possession in urban areas with strict gun control laws do not seem to be the type of gun owners that many gun rights advocates are eager to make their "test case" in either the media or the courts.

So, dear readers, you be the judge: what would you give Arenas?

Some related posts on the Arenas case and other celebrity gun possession cases:

March 25, 2010 in Celebrity sentencings, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (3) | TrackBack

Sunday, March 07, 2010

"Supreme Court should uphold local, state regulation of guns"

The title of this post is the headline of this editorial from my hometown Columbus Dispatch in this morning's paper.  Because the Dispatch has a relatively conservative editorial board (it endorsed McCain and Bush in the last two presidential elections), I found both the position and the rhetoric of this editorial notable.  Here are snippets:

A highly restrictive law such as Chicago's and Oak Park's would be unnecessary in many other locales, such as small towns, rural areas and anyplace where gun violence is a rare occurrence. But Oak Park sits next door to Chicago's highly urbanized suburbs and neighborhoods and absorbs their spillover criminal activity.  Chicago is engaged in a major campaign to reduce the violence and, in high-crime areas, has installed sophisticated cameras that can detect gunshots, turn rapidly to capture the scene at that site and alert police.

Neither Chicago nor Oak Park bans possession of shotguns and other recreational firearms that are not handguns; these cities are not engaged in a plot to take all guns away from law-abiding citizens.

Unfortunately, the Supreme Court's conservative majority appears unlikely to step away from its activist interpretation of the Second Amendment as an individual right to own guns for self-defense and hunting....

The Supreme Court's 2008 decision also overturned Washington's requirement that firearms have trigger locks or be kept disassembled.  This is particularly disturbing, because many cities and states have similar laws to prevent accidental firing and misuse of guns, especially by children.

Anyone who says conservative justices are not activists should look carefully at this earlier decision and consider the impending ruling in the Chicago and Oak Park cases.  How do the justices of the nation's highest court presume to know what local ordinances are best for maintaining law and order on the streets of America's highly diverse cities?

Some recent related posts on McDonald Second Amendment incorporation case:

March 7, 2010 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Thursday, March 04, 2010

Eleventh Circuit rejects Second Amendment right of felon to possess a gun for any purpose

Though many circuits have already rejected Second Amendment claims brought by felons prosecuted and sentenced under the federal felon-in-possession criminal statute, the Eleventh Circuit's opinions today in US v. Rozier, No. 08-17061 (11th Cir. Mar. 4, 2010) (available here), has the broadest language in any of these rulings that I can recall.  Here are snippets:
One of the major thrusts of the [Heller] Court’s ruling was “the inherent right of self-defense ... central to the Second Amendment right.” Id.at 2817.  Rozier argues that his case parallels the facts in Heller, in that his possession of a handgun was in the home and for the purposes of self-defense. For the purposes of this appeal, we accept Rozier’s assertion that he possessed the handgun for self-defense; however, the motive behind Rozier’s possession of the handgun is irrelevant.  We find 18 U.S.C. § 922(g)(1) to be constitutional, even if a felon possesses a firearm purely for self-defense....

Prior to taking into account Rozier’s purpose for possessing the handgun, we must determine whether he is qualified to possess a handgun.  Rozier’s Second Amendment right to bear arms is not weighed in the same manner as that of a law-abiding citizen, such as the appellant in Heller. While felons do not forfeit their constitutional rights upon being convicted, their status as felons substantially affects the level of protection those rights are accorded...

Thus, statutory restrictions of firearm possession, such as § 922(g)(1), are a constitutional avenue to restrict the Second Amendment right of certain classes of people.  Rozier, by virtue of his felony conviction, falls within such a class.  Therefore, the fact that Rozier may have possessed the handgun for purposes of self-defense (in his home), is irrelevant.

I cannot think of any other enumerated right in the Bill of Rights which has no application whatsoever to "certain classes of people" who are adult Americans.  But, of course, it has been obvious for quite some time that Second Amendment rights are special --- and now after Heller it seems proper to say that what makes the Second Amendment so special is that the rights it affords are available only to those "classes of people" whom judges and Justices decide are special enough to be trusted with the right of self defense in the home.

March 4, 2010 in Second Amendment issues | Permalink | Comments (35) | TrackBack

Tuesday, March 02, 2010

Could there be five votes for only "partial" incorporation of the Second Amendment?

I have only so far had a chance to skim part of the oral argument transcript from today's McDonald Second Amendment case (which is available here).  But I have already been intrigued and pleased to see that, during the arguments, Justice Stevens discussed at some length the idea that the Second Amendment might only be partially incorporated against the states. 

I find this idea especially intriguing and pleasing because I filed this McDonald amicus brief (together with two terrific students from my Second Amendment seminar) which developed a partial incorporation argument with a special emphasis on the special challenges facing localities in the arena of gun regulation.  Here is the opening substantive paragraph from this amicus brief:

District of Columbia v. Heller clarified that the Second Amendment protects an individual right “to keep and bear arms,” and this case presents this Court’s first opportunity to consider not just whether, but also how, this right is to be incorporated against states and localities.  Though “jot for jot” incorporation became the modern norm for how most constitutional rights will be applied to states and localities, the Court has sometimes taken an alternative approach to the incorporation of certain Bill of Rights provisions.  For example, though the Sixth Amendment jury trial right has been incorporated against the states, the unanimity requirement applied in federal court does not apply to state criminal justice systems. Similarly, First Amendment doctrines are in various ways expressly attentive to distinctive state and local standards and to distinctive state and local concerns.  The modern development of Second Amendment jurisprudence in the wake of Heller should likewise include a formal and express recognition of distinct state concerns and it should be especially attentive to the unique public-safety interests and distinctive structural dynamics surrounding the regulation of firearms by localities.

Though I doubt that Justice Stevens will succeed in getting five votes for a partial incorporation approach to the Second Amendment, I am excited that these ideas are getting some serious play.

March 2, 2010 in Second Amendment issues | Permalink | Comments (4) | TrackBack

Big day for guns (and other fun?) at SCOTUS

As detailed in a bunch of major press piece linked here at How Appealing, the Supreme Court today will hear oral argument in McDonald v. Chicago, another potential landmark Second Amendment case that will determine if the Court's 2008 ruling in Heller extends to the states.  In addition, I think the Court is likely to release some opinions this morning, and before long they will have to start handing down rulings in the bigger criminal justice cases that were argued last Fall.

Though there so many aspects of the McDonald oral argument to follow, I will be especially interested to see if gun rights for the disfavored (e.g., anyone with a criminal record) gets any mention at all.  I also will be interested to see how the Heller dissenters engage (or seek to disengage) with the individual constitutional right recognized in Heller.

What, dear readers, are you going to be looking for in the McDonald argument?

A few related Second Amendment posts:

March 2, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, February 23, 2010

Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it

As both a Second Amendment believer a fed courts geek, a notable ruling today from the the Fourth Circuit today has me excited and annoyed and amused all at the same time. The ruling is in US v. Chester, No. 09-4084 (4th Cir. Feb. 23, 2010) (available here), and it begins this way:

A grand jury sitting in the Southern District of West Virginia indicted William Samuel Chester, Jr., for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).  Chester moved to dismiss the indictment, arguing that application of the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).  The district court denied the motion.  Thereafter, Chester pled guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. He now reiterates his Second Amendment challenge to § 922(g)(9).

In the proceedings below, the district court did not address whether Heller required the Government to justify individual laws that restrict Second Amendment rights.  Instead, it dismissed Chester's claim in reliance on Heller’s much-noted language as to “presumptively lawful” gun regulations—notably, the felon-dispossession laws.  JA 60-61.  Following the pattern of other lower federal courts, it drew an analogy between felons and domestic violence misdemeanants, concluding that the Hellerlanguage should be read to include both because the potential violent acts of those found guilty of domestic violence is often far greater than that of those who commit non-violent felonies. JA 61.

We find that the district court erred when it failed to scrutinize § 922(g)(9) apart from the language in Heller.  We agree with the Seventh Circuit decision in United States v. Skoien, 587 F.3d 803, 808 (7th Cir. 2009), insofar as it held that challenges to firearms regulations under the Second Amendment must be individually analyzed because such regulations restrict the exercise of a constitutional entitlement.  In this case, the district court neither determined the most appropriate level of scrutiny of § 922(g)(9), nor did it substantively apply that level of scrutiny to an analysis of § 922(g)(9), and therefore, we vacate and remand this case for further proceedings.

This Chester ruling by the Fourth Circuit excites me because, as regular readers know, I think the criminal prohibition on gun possession by misdemeanants in § 922(g)(9) is constitutionally questionable in the wake of Heller, and I believe lower courts have been too ready and eager to dismiss Second Amendment attacks on  § 922(g)(9).

But... this Chester ruling by the Fourth Circuit annoys me because, apparently in order to try to keep this important ruling below the radar screen, the panel decided to denominate this opinion "unpublished" so that it is "not binding precedent in this circuit."  Because this Chesterruling breaks new ground and provides important guidance on a frequently arising issue, I cannot fathom a valid reason why it should be "unpublished."

And... this Chester ruling by the Fourth Circuit amuses me because, as noted above, the panel declares that it "agree[s] with the Seventh Circuit [panel] decision in United States v. Skoien, 587 F.3d 803, 808 (7th Cir. 2009)," exactly one day after the Seventh Circuit itself decided to take the Skoien case en banc (which I believe has the effect of vacating the panel decision).  Thus, the Chester panel not only intentionally gave its own opinion a shadow quality by making it "unpublished," but it also unintentionally gave its an opinion a ghostly quality by relying heavily on a now gone case.

A few related Second Amendment posts:

February 23, 2010 in Second Amendment issues | Permalink | Comments (8) | TrackBack

Thursday, February 18, 2010

"State Court Standards of Review for the Right to Keep and Bear Arms"

The title of this post is the title of this timely piece now on SSRN from David Kopel and Clayton Cramer. For those of us thinking about how the Second Amendment should be applied after Heller (and especially if/when the big upcoming incorporation case brings Heller to the states), this piece looks like a must-read. Here is the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues.  Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means.  Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms).  Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review.  District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

February 18, 2010 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Tuesday, February 09, 2010

Ninth Circuit panel rejects Second Amendment challenge to federal felon-in-possession crime

The Ninth Circuit has a little ruling today that rejects a Second Amendment challenge to the federal felon-in-possession prohibition in light of Heller. The ruling in US v. Vongxay, No. 09-10072 (9th Cir. Feb. 9, 2010) (available here), gets started this way:

Defendant-Appellant Peter Vongxay appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He challenges his conviction on three grounds. First, he argues that § 922(g)(1) violates the Second Amendment.  Next, he asserts that § 922(g)(1) violates his right to equal protection under the Due Process Clause of the Fifth Amendment.  Finally, he claims that the arresting officer’s search violated his Fourth Amendment right to be free from unreasonable searches and seizures. We affirm the judgment of the district court on all Vongxay’s claims.

And here is the heart of the panel's analysis of the Second Amendment issue (with some cites, footnotes and quotes omitted):

[T]o date no court that has examined Heller has found 18 U.S.C. § 922(g) constitutionally suspect ... [and thus] there appears to be a consensus that, even given the Second Amendment’s individual right to bear arms, felons’ Second Amendment rights can be reasonably restricted.

Denying felons the right to bear arms is also consistent with the explicit purpose of the Second Amendment to maintain “the security of a free State.” U.S. Const. amend. II.  Felons are often, and historically have been, explicitly prohibited from militia duty....

Finally, we observe that most scholars of the Second Amendment agree that the right to bear arms was “inextricably . . . tied to” the concept of a “virtuous citizen[ry]” that would protect society through “defensive use of arms against criminals, oppressive officials, and foreign enemies alike,” and that “the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. criminals) . . . .”  Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986); see also Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (noting that felons “were excluded from the right to arms” because they were “deemed incapable of virtue”).  We recognize, however, that the historical question has not been definitively resolved.  See C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J. L. & Pub. Pol’y 695, 714-28 (2009) (maintaining that bans on felon gun possession are neither long-standing nor supported by common law in the founding era).

Though I am inclined to praise this Ninth Circuit panel for giving a little more attention to this Second Amendment issue than most other circuit courts, I cannot help but be a little put off by the fancy footwork in this opinion. 

Specifically, though it is surely reasonable to suggest that "felons’ Second Amendment rights can be reasonably restricted," the federal law being challenged here essentially declares that any and every person ever convicted of a felony, no matter how long ago and no matter what the nature of the felon, no longer has any right to even possess any kind of firearm for any purpose.  This law is not a restriction on felons’ Second Amendment rights, it is essentially a declaration that felons do not have these rights.  Also, it seems as though the Ninth Circuit panel is here endorsing the notion that only the virtuous have Second Amendment rights.  Are we really confortable with starting a doctrine of enumerated rights that hinges on notions of who is or is not virtuous?

February 9, 2010 in Second Amendment issues | Permalink | Comments (11) | TrackBack

Monday, January 25, 2010

Shouldn't Javaris Crittenton be a Second Amendment hero rather than a sentenced zero?

Perhaps because I taught a Second Amendment seminar last semester, I keep noticing cases in which a person gets in big criminal justice trouble for keeping or bearing arms in a manner that would seem to be within the spirit (if not the letter) of the Supreme Court's blockbuster ruling in Heller.  For example, I have previously suggested that celebrity defendants such as Plaxico Burress and rapper Lil Wayne and Delonte West might have viable Second Amendment defenses after facing gun possession charges.

Today, I think I've really found a potential celebrity Hellerposter-child in light of the facts brought forth in the prosecution and sentencing of the NBA's Javaris Crittenton (basics here).  According to this press release from the US Justice Department, Gilbert Arenas threatened to "shoot Crittenton in the face" and Crittenton believed that Arenas intended to harm him."  In reponse, Crittenton placed a "lawfully owned, unloaded handgun into his backpack" in Virginia and brought it into the Wizards' locker-room in DC on the day that "he believed that Arenas would carry out his threat to shoot him."   In addition, Crittenton never loaded this gun nor otherwise brandished the firearm in a threatening manner when he had an encounter with Arenas in the Wizards locker room, and he return this unloaded gun to his backpack upon "deciding that Arenas did not intend to shoot him."

Because I take the the right of armed self-defense discussed in Hellerquite seriously, I want to commend Javaris Crittenton for exercising what would seem to be his Second Amendment rights in a terrifically responsible manner.  But, problematically, the federal criminal justice system has just declared Javaris Crittenton a criminal, rather than a constitutional hero.  I suspect that adamant opponents of the Second Amendment and the Hellerruling have no concerns about how Crittenton is being treated, but I am wondering if others who are not categorically opposed to gun rights share my sense that he has gotten a pretty raw deal.

Some related posts on other celebrity gun possession cases:

January 25, 2010 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (22) | TrackBack

NBA player Javaris Crittenton quickly charged and sentenced for role in Wizards "gun fun"

This press release provides the details concerning the swift (and sound?) form of justice administered to the other player involved in gun play with Gilbert Arenas last month in the locker room of the NBA's Washington Wizards.  Here are the basics:

Javaris Crittenton, a 22-year-old member of the NBA's Washington Wizards, has pleaded guilty to a misdemeanor charge of possession of an unregistered firearm, U.S. Attorney Channing D. Phillips and Metropolitan Police Department Chief Cathy L. Lanier announced today.  The guilty plea follows an investigation in which it was determined that Javaris Crittenton had brought a firearm to the Verizon Center in December 2009.  This incident followed an argument Crittenton and teammate Gilbert Arenas had on a plane two days earlier.

Crittenton entered his plea this afternoon before Senior Judge Bruce Beaudin in the Superior Court for the District of Columbia.  Following the guilty plea, Senior Judge Beaudin sentenced Crittenton to one year of unsupervised probation, and required Crittenton to perform community service through the NBA's Haiti project, and to further perform community service with a children's organization in Washington, DC.

"Possessing a firearm unlawfully in the District of Columbia can lead to nothing but trouble and can have serious consequences" said U.S. Attorney Phillips.  "We commend Mr. Crittenton for accepting responsibility and hope he fully appreciates the gravity of his actions."

According to the factual proffer presented at the plea hearing, on Dec. 19, 2009, into the early morning hours of Dec. 20, 2009, Crittenton and Arenas became involved in a verbal exchange following a card game. In a heated exchange, Arenas stated he was too old to fistfight and threatened to shoot Crittenton in the face.  Crittenton responded that he would shoot Arenas in his surgically-repaired knee.  On the shuttle bus from the airplane to the terminal, Arenas further stated that he was going to burn or blow up Crittenton's car when they came to practice the following Monday.  According to Crittenton, he believed that Arenas intended to harm him.

On Dec. 21, 2009, at approximately 9:00 a.m., Crittenton arrived at the Verizon Center, 601 F Street N.W., Washington, D.C., to receive medical treatment and attend Wizards' practice. According to Crittenton, before he left his home in Virginia for practice that day, Crittenton had placed a lawfully owned, unloaded handgun into his backpack because he believed that Arenas would carry out his threat to shoot him that day....

There is no evidence that Crittenton's firearm was loaded when he pulled it out of his backpack or that Crittenton ever loaded the firearm with ammunition.  There also is no evidence that Crittenton ever chambered a round, pulled back the hammer, raised or pointed the firearm, or otherwise brandished the firearm in a threatening manner at any time during this incident.  After deciding that Arenas did not intend to shoot Crittenton at that time, Crittenton placed his firearm back in his backpack and went from the locker room to the trainer's room.

Based on these "offense facts" as set forth in this press release, it sounds as though Crittenton could and should be a poster child for asserting a Second Amendment defense to his criminal charges in light of the Supreme Court's recognition of an armed self-defense right in Heller.  Of course, the ruling in Helleris formally limited to the home.  Yet its logic and principles would seem to support a claim that Crittenton's behavior in this incident was constitutionally protected.

In a subsequent post, I will pose the question of whether Crittenton's actions should be constitutionally protected ni light of Heller.  In this post, I just wish to note how this case provides a great example of why many criminal defendants, even those with money to hire the best lawyers, will not often be eager to pursue all their potential constitutional defenses.  Like many criminal defendants, Crittenton obviously wants to put this matter behind him ASAP.  Consequently, rather than invest time and expenses raising a (very plausible?) Second Amendment defense to the charges (or even to enter a conditional plea), Crittenton apparently was eager just to get a deal done and try to move on.

Moving on, it will be interesting to see how this plea deal and the facts set out in this press release might impact Gilbert Arenas's fate at his scheduled March sentencing.  Professor Michael McCann is already commenting thoughtfully on this front in this new SI column, which is headlined "Crittenton's plea agreement on gun charges could affect Arenas' future."

January 25, 2010 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (2) | TrackBack

Saturday, January 16, 2010

You be the judge: what sentence would you give to Gilbert Arenas following his plea?

The question in the title of this post is prompted by this Washington Post article which is headlined "Arenas awaits sentence on gun charge, fate in NBA."  The piece provides the latest legal update on the state and possible fate of NBA star Gilbert Arenas, as well as details about his criminal behavior:

Washington Wizards star Gilbert Arenas will have to wait until March to learn if he will be sent to prison for a felony gun conviction, while his future with the NBA sits in limbo. The charismatic player known as "Agent Zero" was straight-faced and subdued when he pleaded guilty Friday to the charge connected to a locker-room argument with a teammate last month.

Arenas won't know whether he must serve jail time until his March 26 sentencing and remains free until then. The government indicated it will not seek more than six months, although the judge can give Arenas anywhere from probation to the charge's maximum term of five years. Guidelines call for six to 12 months....

The NBA didn't comment Friday, while the players' union offered support, with executive director Billy Hunter saying: "The Players Association will continue to make all of its resources available to Gilbert."...

Possession of a gun at an NBA arena is a violation of the league's collective bargaining agreement. Last week, commissioner David Stern suspended the 28-year-old Arenas indefinitely, without pay, pending the outcome of the investigation, a move supported by the Wizards. Arenas is in the second season of a six-year, $111 million contract.

Arenas' NBA future could hinge on the league's own ongoing investigation, and it's possible Stern will wait until the sentence is issued before deciding how to punish the three-time All-Star. Arenas' lawyer, Kenneth Wainstein, asked Judge Robert E. Morin for an earlier sentencing date but was denied.

This article provides these details about the events leading up to Arenas's criminal troubles:

Assistant U.S. Attorney Chris Kavanaugh said the charge stemmed from a Dec. 19 dispute between Arenas and another Wizards player over a card game on a team flight back from a game in Phoenix. Kavanaugh did not identify the other player, but authorities searched the home of Wizards guard Javaris Crittenton for a gun on Thursday.  Crittenton has not been charged, and his agent denied wrongdoing.

Kavanaugh said "the other player" offered to settle matters with a fist fight, but Arenas said he was too old for that and would instead burn the other player's car or shoot him in the face.  The teammate replied he would shoot Arenas in the knee. Arenas missed most of the past two seasons after having a series of operations on his left knee.

Two days later, Kavanaugh said, Arenas brought at least one gun — a .500 Magnum revolver — to the Wizards' arena in a black backpack, then put four guns on a chair in front of the teammate's locker with a sign saying, "Pick 1."  Court documents do not specify when Arenas brought the other three guns to the locker room, including a gold-plated Desert Eagle .50-caliber semi-automatic.

According to Kavanaugh, when the other player asked something along the lines of, "What is this?," Arenas responded with words to the effect of: "You said you were going to shoot me, so pick one." The other player said he had his own gun, threw one of Arenas' weapons across the room and then displayed his own firearm, Kavanaugh said.

Arenas had acknowledged keeping guns in his locker — but claimed he wasn't aware of the law and meant no harm in what he viewed as a "misguided effort to play a joke."  Stern suspended him the day after Arenas pretended to "shoot" teammates by pointing his index fingers at them during a pregame huddle.

As folks consider what they might do as Arenas's sentencing judge, I would appreciate comments on two topic: (1) should the fact that Arenas is suffering a multi-million dollar "punishment" from the NBA influence his sentencing outcome, and (2) should the fact that the Second Amendment provides a constitutional right to "keep and bear arms" influence his sentencing outcome?

Some related posts on Gilbert Arenas' situation and other celebrity gun possession cases:

January 16, 2010 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (10) | TrackBack

Thursday, January 14, 2010

NBA star Arenas charged with felony gun possession and already talking about a plea

As detailed in this new CNN story, "Washington Wizards point guard Gilbert Arenas has been charged with a felony gun violation after admitting he drew guns in the team locker room in a highly publicized December 21 incident." Here's more:

Arenas was charged with one count of carrying a pistol without a license, according to court documents filed Thursday.

There was no immediate comment from his attorney, Kenneth L. Wainstein. It wasn't immediately clear when Arenas, who has been indefinitely suspended from the NBA, would be arraigned on the charge. The document that describes the charge is called an "information," which is filed when a plea agreement has been reached....

Arenas, a three-time NBA All-Star, spent January 15 in a voluntary meeting with federal prosecutors at the U.S. Attorney's Office in Washington and with District of Columbia metropolitan police, according to his attorney.

Arenas said he told authorities he stored four unloaded guns in his locker at the Verizon Center to keep them away from his children. "I brought them without any ammunition into the District of Columbia, mistakenly believing that the recent change in the D.C. gun laws allowed a person to store unloaded guns in the District," he said.

This story from the Washington Examiner says that a plea deal is already in place:

A top law enforcement source familiar with the case told The Examiner that Arenas has agreed to plead guilty to one felony count of carrying a pistol without a license and four misdemeanor counts of unauthorized use of a weapon.

The papers were filed "by information," an indication that a plea agreement has been reached because prosecutors can only file charges by information when a defendant agrees to waive his right to appear before a grand jury.  Through a spokeswoman, Arenas' lawyer declined comment.

It's not clear whether Arenas will face prison time.  Prosecutors will await a pre-sentencing report before making a recommendation, the source said.

As regular readers know, I think that a Second Amendment with some real bite might provide some constitutional protection from the kind of criminal prosecution that Arenas is facing.  But like Plaxico Burress and Lil Wayne before him, it seems like Arenas just wants to cut a deal and try to move on rather than turn this matter into a Second Amendment test case.  I guess I just have to keep my fingers crossed that Delonte West will be the one rich and powerful celebrity willing to seek to assert his modern Second Amendment rights when charged with a gun possession crime.

Some related posts on Gilber Arenas' situation and other celebrity gun possession cases:

January 14, 2010 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (14) | TrackBack

Monday, January 11, 2010

Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession

The Eleventh Circuit today in US v. White, No. 08-16010 (11th Cir. Jan. 11, 2010) (available here), rejects a defendant's claim that Heller creates constitutional problems for the federal crime of gun possession by a domestic violence misdemeanant.  Here is part of the legal fancy footwork used by the Eleventh Circuit to get to its desired outcome:

We are called upon to decide whether the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence, § 922(g)(9), warrants inclusion on Heller’s list of presumptively lawful longstanding prohibitions.  As the Supreme Court recently noted, § 922(g)(9) was passed in 1996 in response to Congress’s concern that “existing felon-in-possession laws were not keeping firearms out of the hands of domestic abusers, because ‘many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.’” Hayes, 129 S. Ct. at 1087 (quoting 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg)).  Section 922(g)(9) was designed to “‘close this dangerous loophole.’” Id. By way of example, the federal ban on felons-in-possession in § 922(g)(1) — a statute characterized in the Heller dictum as a presumptively lawful longstanding prohibition — does not distinguish between the violent and non-violent offender.  Thus, both an armed robber and tax evader lose their right to bear arms on conviction under § 922(g)(1). In contrast, a person convicted under § 922(g)(9) must have first acted violently toward a family member or domestic partner, a predicate demonstrated by his conviction for a misdemeanor crime of violence.  Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by “longstanding” felon-in-possession laws.  We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt....

We now explicitly hold that § 922(g)(9) is a presumptively lawful “longstanding prohibition[] on the possession of firearms.”  Heller, 128 S. Ct. at 2816-17.  Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White’s conviction.

Law students and the revisers of legal dictionaries should be sure to take note that, at least in the Eleventh Circuit, even a gun possession ban that was "passed relatively recently" apparently can and does come within the definition of a "longstanding prohibition."

A few related Second Amendment posts:

UPDATE:  Eugene Volokh questions the Eleventh Circuit's efforts in White in this new post at The Volokh Conspiracy.

January 11, 2010 in Second Amendment issues | Permalink | Comments (4) | TrackBack

Wednesday, January 06, 2010

Will any Second Amendment fans come to the defense of Gilbert Arenas?

Though I doubt the NRA is likely eager to make Gilbert Arenas its celebrity spokesman, the latest news concerning the treatment of the NBA star has me wondering if and when fans of guns rights and the Second Amendment might start speaking out on Arenas' behalf.  Here is what's new via NBA.com:

The NBA on Wednesday suspended Washington Wizards guard Gilbert Arenas indefinitely, without pay, in the wake of both a Dec. 21 incident at Verizon Center --when Arenas brought four guns into the team's locker room, in a supposed joke gone badly with teammate Javaris Crittenton following an argument between the two on the team's plane two days earlier -- and Arenas' subsequent conduct, including a pregame routine Tuesday night before Washington's game in Philadelphia in which Arenas pretended to "shoot" his teammates with his fingers.

NBA commissioner David Stern said in a statement that Arenas' ongoing conduct "has led me to conclude that he is not currently fit to take the court in an NBA game.  Accordingly, I am suspending Mr. Arenas indefinitely, without pay, effective immediately pending the completion of the investigation by the NBA."...

Stern added that when the legal investigation is over, Arenas faces "a substantial suspension, and perhaps worse" from the league.  That would seem to indicate that the league is at least leaving open the possibility of terminating Arenas from the league.  That would free the Wizards from the remainder of Arenas' $111 million contract, signed in 2008, which has four years remaining.

As I have suggested in a prior post, these actions by the NBA call for experts in labor and sports law, not criminal law.  Still, if Stern is taking this so seriously, I have to wonder what law enforcement has in mind.  And, as suggested by the title of this post, I think any serious fan of gun rights and the Second Amendment has to question why Arenas seems to be getting treated so harshly just for possessing unloaded guns.

Some related posts on Gilber Arenas' situation and other celebrity gun possession cases:

January 6, 2010 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (15) | TrackBack

Wednesday, December 30, 2009

Sixth Circuit rejects Second Amendment challenge to federal criminal prohibition of possessing machine guns

The Sixth Circuit issued a little panel opinion today in Hamblen v. United States, No. 09-5025 (6th Cir. Dec. 30, 2009) (available here), in which the panel summarily rejects a defendant's Second Amendment challenge to his machine gun possession convictions. Here is how the brief opinion starts:

Petitioner Richard Hamblen appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, claiming that his convictions for possession of machine guns, in violation of 18 U.S.C. § 922(o), and possession of unregistered firearms, in violation of 26 U.S.C. § 5861(d), are unconstitutional.  Because the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns, we affirm the district court’s judgment and deny Hamblen’s petition for relief.

This case seems notable not only because it is one of the few post-Heller rulings I have seen dealing with machine guns, but also because the defendant appears to have personally manufactured his machine guns in order to be able to better serve as a member of the Tennessee State Guard (which sounds like a modern version of a "well regulated militia").  But these facts are deemed inconsequential by the Sixth Circuit panel:

We note, as a preliminary matter, that Hamblen’s possession of nine unregistered machine guns was not only outside the scope of his duties as a member of the State Guard, but also directly violated State Guard policy.  Therefore, this case does not present a novel issue of law regarding the Second Amendment’s prefatory clause.

December 30, 2009 in Second Amendment issues | Permalink | Comments (2) | TrackBack

Monday, December 21, 2009

Good news on 2009 crime rates from the FBI

As detailed in this Reuters report, the FBI released some exciting data concerning crime rates for the first half of 2009.  Here are the details:

Violent crime in the United States, including murder and robbery, dropped 4.4 percent in the first half of 2009 and property crime like car thefts also dropped, the Federal Bureau of Investigation said on Monday.

The latest statistics suggest U.S. violent crime could drop for a third full year in a row, a steady decline despite the harsh economic recession that some policymakers and police groups had feared would lead to an upward spike....

The number of murders fell 10 percent compared to the same six-month period in 2008, while robbery declined 6.5 percent and forcible rape dropped 3.3 percent, according to preliminary statistics released by the FBI.  Violent crime in all of 2008 fell 1.9 percent from 2007.

But in some cities hit hard by the economy, like Baltimore and Detroit, the murder rate climbed.  In Detroit, hurt by the auto industry's woes, there were 163 murders reported in the first six months of 2009 versus 146 during the same period in 2008.

But other cities where murder rates had been high, like New York and Los Angeles, saw a drop off. In New York, there was a drop from 252 murders in 2008 to 204 reported during the first half of 2009....

The overall decline was not limited to violent crime.  Property crimes dropped 6.1 percent during the first six months of 2009, with vehicle theft plummeting 18.7 percent and burglary falling 2.5 percent, the FBI statistics showed.  Reported cases of arson fell during the first half of 2009, dropping 8.2 percent from the same period in 2008.

In addition to being very encouraging, these data should also be very confounding to anyone who thinks that any single or simple factor helps explain variations in crime rates.  Notably, as detailed in this recent post, the total US prison population may have declined during 2009, and thus the (too) easy suggestion than more prisoners means less crime does not effectively account for the 2009 crime drop.  And, of course, the economy and unemployment rates were rough in 2009, but this did not produce any (often predicted) uptick in crime.

Relatedly, as detailed in this press release from folks at the Second Amendment Foundation, the relative lack of crimes cannot be attributed to a relative lack of guns:

A ten percent drop in murders during the first six months of this year at a time when gun sales were up dramatically is more proof that there is no correlation between gun ownership and violent crime, the Second Amendment Foundation said today....

"What this shows," said SAF Executive Vice President Alan Gottlieb, "is that gun prohibitionists are all wrong when they argue that more guns result in more crime. Firearms in the hands of law-abiding citizens are no threat to anyone.  Perhaps violent criminals were actually discouraged by all of those gun sales earlier this year, because the media made a point of reporting the booming gun market.

"Anti-gunners," he continued, "have lost another one of their baseless arguments. Millions of Americans bought guns during the first six months of this year, many of them for the first time.  Yet with all of those new guns in circulation, coupled with an increased demand for concealed carry licenses around the country, the streets have not been awash in blood, as gun banners repeatedly predict.

Whatever the reasons for the continued downward trend in crime, we should all be content to celebrate the good news and hope that US law and policy continues to do whatever happens to be working.

December 21, 2009 in Data on sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (11) | TrackBack

Friday, December 11, 2009

"A gun case or Pandora's box?: Ruling could trigger the unhinging of American culture"

The title of this post is the headline of this amusing commentary in The Washington Times, which makes for a good topic for conversation on a Friday.  Here is how the commentary starts and ends:

Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values. It could lead to anything from court-ordered Obamacare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it....

If the court overrules the Slaughterhouse Cases, the Privileges or Immunities Clause can mean anything courts say it means. The Supreme Court could declare a constitutional right to government-provided health care or "decent" housing, a free college education, a "living wage" or a clean environment, resulting in a court-ordered cap-and-trade system.

It also could completely change American culture, with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child's "right" to a public-school education over his parents' objections. It's because of these social issues, in particular, that the Family Research Council has weighed in on this case.

Although it should be about the Second Amendment, this gun rights case is, instead, a Trojan horse for everything except guns. It could remake America's economy and culture. That's why several conservative groups have weighed in with a brief asking the court to incorporate the Second Amendment through the Privileges or Immunities Clause but to do so without overruling the Slaughterhouse Cases.

McDonald v. Chicago is as big as it gets. All eyes will be on the Supreme Court early next year.

A few related new and old Second Amendment posts:

December 11, 2009 in Second Amendment issues | Permalink | Comments (5) | TrackBack

Tuesday, December 08, 2009

Interesting Heller ruling from intermediate NC appeals court

Though the Supreme Court's Heller ruling does not yet officially apply to the states, this legal reality has not prevented a North Carolina appeals court from handing down this interesting opinion rejecting a Heller-based Second Amendment challenge to a state prosection for felon in possession.  Here is how the ruling in North Carolina v. Whitaker gets started:

Defendant was convicted by a jury of eleven counts of possession of a firearm by a felon. Defendant appeals on various constitutional grounds, primarily arguing that the recent decision of the United States Supreme Court, District of Columbia v. Heller, 554 U.S. ___, 171 L.E. 2d 637 (2008), requires this Court to hold that North Carolina’s law prohibiting possession of firearms by convicted felons violates defendant’s individual right to keep and bear firearms under the Second Amendment of the United States Constitution and Article I, Section 30 of the North Carolina Constitution.  As we conclude that Heller has no effect upon the level of scrutiny which this Court has traditionally applied to regulations of the possession of firearms, we reject defendant’s claim that Heller requires us to hold that N.C. Gen. Stat. § 14- 415.1 is unconstitutional under either the Second Amendment or Article I, Section 30.  We further reject defendant’s contentions that N.C. Gen. Stat. § 14-415.1 is unconstitutional on any other grounds.

December 8, 2009 in Second Amendment issues | Permalink | Comments (6) | TrackBack

Tuesday, November 24, 2009

Seeking help working though the Second Amendment amicus briefs filed in McDonald

As SCOTUSblog notes here, many amici briefs in support of applying the Second Amendment to state and local laws were filed yesterday in the McDonald case, and many of these amici filings are linked at via this Chicago Gun Case webpage (and many are also being noted and discussed at The Volokh Conspiracy).  Including the merits briefs, I now count 34 briefs filed in the McDonald case.

Especially because I consider Second Amendment incorporation pretty much a fait accompli (as explained here), I am checking out these McDonald briefs mostly to see what they might be saying for the really hard Second Amendment questions on the horizon, especially concerning traditional law enforcement and sentencing issues.  I am looking, for example, to see if any amici who call Second Amendment rights "fundamental" explain whether and why all felons and some misdemeanants can be severely criminally punished simply for seeking to exercise a fundamental right.  Similarly, I wonder if any amici arguments in McDonald might undermine the application of severe mandatory minimum sentencing terms for mere gun possession in certain settings.

Based on a quick scan of who submitted filings, the following briefs caught my eye as potentially worth a close read by those thinking about the possible criminal justice implications of McDonald:

In addition, I notice that at least these two amicus briefs directly engage with the all-important "standard of review" question that has already caused some problems in lower courts:

By flagging this set of amicus briefs, I do not mean to imply that all the others are not worthy of time and attention.  Indeed, as the title of this post is meant to indicate, I am eager to get assistance and insights from others concerning which (if any) of the filings in McDonald are worthy of extended attention.

A few related new and old Second Amendment posts:

November 24, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

"Right and Left Join to Challenge U.S. on Criminal Justice"

The title of this post is the headline of this terrific (and heart-warming?) new article in the New York Times by Adam Liptak.  Here are excerpts:

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption.  Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups.  Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration. “It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers.  “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.  Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July....

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)...

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.  In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October....

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population....

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas.  The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses....

The conservative re-evaluation of crime policy is not universal, of course.  Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.  “Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.  “The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri.  “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

So, it seems that anyone inclined to complain about President Obama's failure to bring the left and the right together on important issues should be sure to acknowledge that at least partisan lawyers have recently been working in a bipartisan fashion to oppose Prez Obama's Justice Department.

Also, notably missing in this discussion is my favorite new arena for some right/left convergence: the Second Amendment.  Of course, many on the left and the right disagreed on the basic question of whether the Second Amendment protects an individual right.  But now that Hellerhas resolved this issue, I sense that folks on both sides generally agree that the Second Amendment should be incorporated against the states and that the scope of gun rights can and should be significantly restricted by lots and lots of reasonable regulations.

November 24, 2009 in Purposes of Punishment and Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, November 18, 2009

Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession

Last year, as noted in this post, a federal district court rejected in US v. Skoien, a defendant's effort to use Heller to have dismissed his federal indictment on possessing three firearms after having been convicted of a misdemeanor crime of violence under § 922(g)(9).  Today, in this important new opinion, a unanimous panel of the Seventh Circuit has said not so fast.  Here is the start and end of the panel's effort: 

A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). Skoien moved to dismiss the indictment, arguing that applying the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).  The district court denied the motion.  Skoien pleaded guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. H e now reiterates his Second Amendment challenge to § 922(g)(9)....

Accordingly, we cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important objective of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic-violence misdemeanants.  In fairness, because Heller did not establish a standard of review, the government did not know what its burden would be.  Like the district court, it proceeded on the assumption that the highest standard of scrutiny applied and then relied almost entirely on conclusory reasoning by analogy from Heller’s reference to the “presumptive” constitutionality of felon-dispossession laws.  That was a mistake, for the reasons we have explained.  In any event, our discussion here of the appropriate standard of review should provide guidance for the proceedings on remand.

Before closing, we offer a few additional observations to help those proceedings along. Intermediate scrutiny tolerates laws that are somewhat overinclusive.  See, e.g., Fox, 492 U.S. at 480; Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 327-28 (4th Cir. 1996) (recognizing that intermediate scrutiny in the commercial-speech context allows some latitude between the regulation and the governmental objective). How much is too much is hard to say; it depends on the scope and reach of the law and how much room it leaves for the exercise of the right.  See Fox, 492 U.S. at 481 (noting “the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires”).  We note that § 922(g)(9) is overinclusive on several fronts: The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense.  On the other hand, the statutory definition of “misdemeanor crime of domestic violence” limits the applicability of § 922(g)(9)’s firearms disability to those who actually used or attempted to use physical force or threatened the use of a deadly weapon in a domestic disturbance.  See 18 U.S.C. § 921(a)(33)(A)(ii). The statute thus targets a specific class of violent offender; only those who have already used or attempted to use force or have threatened the use of a deadly weapon against a domestic victim are banned from possessing firearms.

To summarize, we conclude that intermediate scrutiny applies to Skoien’s Second Amendment challenge to this § 922(g)(9) prosecution.  The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest — § 922(g)(9)’s total disarmament of domestic-violence misdemeanants.  Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion.  If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.

November 18, 2009 in Second Amendment issues | Permalink | Comments (5) | TrackBack

Should criminal justice reform groups actively urge SCOTUS to overrule The Slaughterhouse Cases?

As detailed in this effective SCOTUSblog post, the petitioners in the McDonald case concerning whether the Second Amendment applies to the states have filed "a wide-ranging survey of the meaning and origins of the  privileges clause of the Fourteenth Amendment [with] only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.... In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down ... the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity." 

At yesterday's OSU symposium, lots of the legal luminaries were buzzing about this brief and about whether the Supreme Court would really consider overuling The Slaughterhouse Cases.  Orin Kerr has now shared some of his thoughts on this topic in posts over at Volokh, and other Conspirators are also buzzing about the McDonald brief.  Here are links to some of these posts:

There is some much fodder for constitutional commentary in the McDonald brief, I am not sure where a con law guru would start to unpack all the great issues the brief raises.  But I am sure what at least one sentencing guru would like to discuss: whether persons or groups seriously interested in criminal justice reform ought to actively support the effort in McDonald to overrule The Slaughterhouse Cases.

I ask this question for two reasons: (1) I tend to view any constitutional development that stirs the pot as good for those interested in criminal justice reform, so my first instinct is that reform groups ought to actively support overruling The Slaughterhouse Cases, and (2) I think it is safe to assume that the dissenters in Heller (aka the supposed liberals) might well be drawn toward overruling The Slaughterhouse Cases if and only if some traditionally liberal advocacy groups seriously support the effort to do so.

Put another way, the McDonald brief urging the Supreme Court to overrule The Slaughterhouse Cases provides more evidence for my view that the awakening of the Second Amendment through the Heller ruling has started to take us through the modern constitutional looking glass.  I have generally been disappointed that many traditional criminal justice reform groups have failed to actively embrace the potential of Heller, and now I am wondering — really hoping — that the new McDonald brief will spotlight Heller's profound potential.

A few related new and old Second Amendment posts:

November 18, 2009 in Second Amendment issues | Permalink | Comments (13) | TrackBack

Tuesday, November 03, 2009

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

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

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

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

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

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

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

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

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

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

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

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

November 3, 2009 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (40) | TrackBack

Wednesday, October 28, 2009

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

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

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

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

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

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

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

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

October 28, 2009 in Second Amendment issues, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Thursday, October 22, 2009

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

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

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

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

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

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

Some related posts on the celebrity gun possession cases:

October 22, 2009 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (3) | TrackBack

Wednesday, October 21, 2009

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

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

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

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

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

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

October 21, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Monday, October 19, 2009

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

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

A few related new and old Second Amendment posts:

October 19, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Friday, October 09, 2009

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

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

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

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

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

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

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

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

October 9, 2009 in Second Amendment issues | Permalink | Comments (4) | TrackBack