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 (34) | 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

Wednesday, October 07, 2009

"Does the Second Amendment Bind the States?"

The title of this post is the headline of this effective column at FindLaw by Professor Michael Dorf.  This piece is one of the most effective discussion of the complex and interesting precedents at issue in the Second Amendment incorporation case taken up by the Supreme Court last week.  Here is a paragraph from the start of the commentary:

Last week, the Court announced that it would hear a case, McDonald v. Chicago, posing the question whether the Second Amendment applies to the states and their sub-divisions. In lawyer's jargon, McDonald requires the Court to say whether the Fourteenth Amendment "incorporates" the Second Amendment against the states.  As I shall explain in this column, the case poses an intellectual challenge for the Justices who were in the Heller majority.  To see why, we will need to begin by reviewing the story of how other constitutional rights came to be incorporated against the states.

Some related Second Amendment posts:

October 7, 2009 in Second Amendment issues | Permalink | Comments (2) | TrackBack

Tuesday, October 06, 2009

Notable (new?) First Circuit opinion on Heller and federal juve crimes and punishment

I just discovered today this notable opinion from the First Circuit concerning the Second Amendment and federal juvenile prosecution and punishment. Strangely, the opinion in US v. Rene E., Juvenile Male, is dated August 31, 2009, but perhaps there was some reason the ruling was not made public earlier. Whatever the backstory, anyone interested in the Second Amendment or federal prosecution of juveniles will want to check out the First Circuit's work in Rene E.  Here is how the opinion starts:

Juvenile Rene E. ("appellant") was charged with possessing a handgun in violation of 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, the charging provision of the Juvenile Delinquency Act. After his motions to dismiss and motion to suppress were denied, he entered a conditional guilty plea. On appeal, he raises constitutional challenges to 18 U.S.C. § 922(x)(2), arguing both that it violates his rights under the Second Amendment, as interpreted by the Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), and that it exceeds Congress's authority under the Commerce Clause. He also challenges the sentence he received under the Juvenile Delinquency Act, arguing that the district court erred in determining the maximum sentence to which a similarly situated adult would be subject under the United States Sentencing Guidelines.

We hold that 18 U.S.C. § 922(x)(2)(A) does not violate the Second Amendment, and we reaffirm our holding in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997), that section 922(x)(2)(A) does not exceed Congress's Commerce Clause authority.  Lastly, because appellant is no longer in detention or under juvenile supervision, we conclude that his sentencing challenge is moot.  Therefore, we affirm.

UPDATE:  Over at Crime & Consequences, Kent here has a notable (and amusing) reaction to the ruling in Rene E.:

Personally, I'd like to see the Commerce Clause challenge go up to the Supreme Court. The peoples of Arkansas and Massachusetts should be able to come to different conclusions regarding whether 17-year-olds can possess handguns.

Perhaps we should also have a limit on the length of statutes so that none will ever need a subdivision (x).

October 6, 2009 in Offender Characteristics, Second Amendment issues | Permalink | Comments (1) | TrackBack

Saturday, October 03, 2009

Even Washington Post editorial board supporting Second Amendment incorporation

I just noticed this recent Washington Post editorial on the Second Amendment incorporation issue.  Notably, the piece call for the Second Amendment to be applied to the states, but then also argues for the Amendment to be interpreted to allow lots of local regulation of guns:

Given how the Constitution has evolved, lawyers from both the left and right of the political spectrum will present strong arguments that the Second Amendment applies to state and local government, just as the First Amendment does.  It would seem at least incongruous -- and may ultimately be legally indefensible -- for residents of the District to enjoy constitutional rights that are withheld from people in Chicago or other parts of the country.

But just as in the District, it will be important for the court to recognize that all rights -- including those of free speech and assembly -- are subject to limits. So should be the right to keep and bear arms.  Any Supreme Court ruling should explicitly recognize the authority of state and local governments to craft regulations to best protect their communities. Gun laws that make sense in a densely populated urban area may be unreasonable or unnecessary to protect the public safety of rural residents.  The justices should allow state and local jurisdictions reasonable flexibility; a civil society must be able to balance the rights of individuals with the compelling interest in maintaining public safety.

I believe the Post has long backed gun control measures, and this editorial thus highlights how nobody is likely to fight hard against Second Amendment incorporation.  Rather, after the Supreme Court decides that the Amendment applies to all levels of government, the big fights will be over what sorts of gun regulations are deemed reasonable.  

Some related Second Amendment posts:

October 3, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Thursday, October 01, 2009

What state and local issues will be litigated the most if (when?) Heller is incorporated?

As suggested in prior posts, the smart money in the wake of the Supreme Court's grant of cert in McDonald is that the Justices will extend its Hellerruling and find Second Amendment rights are fully applicable to states and localities.  Thus, I am already thinking about and wondering what kinds of state and local gun regulations will quickly become litigation hot-spots once the Second Amendment is incorporated. 

This new piece from the Christian Science Monitor, which is headlined "Arizona allows guns in bars. Should any place be off-limits?", reinforces my sense that there are going to be big battles over what are "sensitive places" where gun possession can be banned.  Here is a snippet from the piece:

Arizona will be the 41st state to let bar patrons pack heat (only if they’re not drinking alcohol, however). Meanwhile, the list of places where gun owners can bring their weapons is growing, as the gun lobby increases pressure on statehouses and Congress to broaden Second Amendment rights. “The trend over the last 20 years is more freedom in most states for individuals to carry guns,” says Robert Cottrol, a law professor at George Washington University in Washington.

The issue took on even greater importance Wednesday when the US Supreme Court announced it will hear arguments as to whether a Chicago handgun ban violates the Second Amendment right to bear arms.  The case could have implications for all local gun restrictions, which have been a central tenet of gun control....

In Arkansas, state Rep. Beverly Pyle proposed allowing guns inside places of worship earlier this year. It seems as though the state’s ban will stand, but the issue is percolating. Ken Pagano, a pastor in Kentucky, in June sponsored a bring-your-guns-to-church day. “God and guns were part of the foundation of this country,” Mr. Pagano told The New York Times.

Going forward, gun owners hope to make sure that no place will be off-limits. “My guess is that too that the extent that there are restricted spaces, there will be a movement to push against that,” Professor Cottrol says.

Some related Second Amendment posts:

October 1, 2009 in Second Amendment issues | Permalink | Comments (4) | TrackBack

Wednesday, September 30, 2009

What is the best argument that Heller should only impact the feds? Will it get any votes?

How Appealing does an effective job here assembling the early major news coverage of the Supreme Court's decision to grant cert in McDonald v. Chicago, the case concerning whether the Second Amendment as interpreted in Heller is applicable as a limit on state and local gun regulations.  This is big news for lots of reasons, especially because it seem to me all but certain that the Supreme Court will declare Heller applicable to the states.

Indeed, as I have been thinking about this issue in the course of discussing it with student in my Second Amendment seminar, I have had a hard time developing a very strong argument that Heller should only apply to the feds.  Lower courts, understandably, decided against incorporation because they were bound by old precedent that the Second Amendment only applied to the states.  But a majority of Supreme Court can decide to (and seems likely to want to) overrule that precedent, and thus folks who want to limit Heller's reach will need to come up with other arguments.

The problem is, now that all important substantive constitutional rights are thought to constrain all levels of government, how can and should one develop an argument that Heller applies only to the feds.  Of course, proponents of gun control can make strong policy arguments that states and localities should be allowed to make their own distinct gun regulation choices, but are there any really good legal arguments that states and localities should not be subject to the same Second Amendment rules that limit the federal government?  And, moving to predictive mode, can anyone predict whether any Justice will embrace these arguments (as opposed to just contending that Heller was wrong and should not be extended).

September 30, 2009 in Second Amendment issues | Permalink | Comments (12) | TrackBack

SCOTUS cert grants: Guns, sex offenders, and sentencing factors ... oh my!

Reviewing (thanks to SCOTUSblog) the details of the ten cert grants announced by the Supreme Court this morning (basics here and here), I cannot help but feel a bit like a legal Dorothy heading through a jurisprudence thicket on the ways to learn what the Wizards of SCOTUS will have to say on some of the hottest legal topics for sentencing fans.  Specifically, these there grants as described at SCOTUSblog are huge news for anyone involved in modern sentencing law and policy issues:

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Docket: 08-1521
Title: McDonald, et al.  v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Issue:Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

Of course, the Second Amendment incorporation issue is the biggest story with the biggest potential jurisprudential impact.  But I think the outcome of that case is almost a given, as I would be shocked to see the Justices decide Heller only applies to the federal government.  The other cases seem more in play, and how the Justices approach and decide these cases could make them both sleepers for sentencing fans to watch closely.

I will have a lot more to say about both Carr and McDonald in subsequent posts, and I am already looking forward to the discussions and debate both cases are likely to generate in the months ahead.

September 30, 2009 in Procedure and Proof at Sentencing, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, September 25, 2009

Ninth Circuit awaits SCOTUS action on Second Amendment incorporation issue

As detailed in this SCOTUSblog post, the Ninth Circuit decided on Thursday to "put on hold its consideration of a case testing whether the Second Amendment right 'to keep and bear arms' restricts laws passed by state and local governments."  Here's more:

After a hearing before an 11-judge en banc Court in San Francisco, the Court issued an order vacating submission of the case of Nordyke et al. v. King et al. (docket 07-15763), until the Supreme Court acts on pending cases raising the same issue.

Earlier, a three-judge panel of the Circuit Court had extended the Second Amendment to the state, county and city level, through the Fourteenth Amendment.  That ruling was vacated when the Circuit Court agreed to reconsider the issue en banc.   The Supreme Court may act as early as next week on one or more of  three pending cases: National Rifle Association v. Chicago (08-1497), McDonald v. Chicago (08-1521), and Maloney v. Rice (08-1592).  All three are scheduled to be considered at next Tuesday’s private Conference.

How Appealing here links to press coverage of the en banc hearing and also to an audio of the oral argument. 

September 25, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

Tuesday, September 22, 2009

State AGs and the Second Amendment incorporation debate

Thanks to law.com, everyone can check out this very interesting piecefrom a California legal newspaper headlined "With 9th Circuit Set to Hear Firearms Case En Banc, Calif. AG Walks Line on Gun Control."  Here are a few highlights:

A hard-fought firearms case is coming to the 9th U.S. Circuit Court of Appeals for en banc arguments Thursday, with the usual gun groups weighing in as amici on the usual sides.

Though the case arose in Alameda County, Calif., home to California Attorney General Jerry Brown, he hasn't submitted briefs. But in another case across the country, involving the same issue, Brown filed an amicus that has gun control advocates shaking their heads. After the 7th U.S. Circuit Court of Appeals decided that the Second Amendment didn't apply to state or local governments — and therefore upheld a local handgun ordinance — Brown joined those asking the U.S. Supreme Court to review the ruling.

The move throws a spotlight on how Brown, a presumed candidate for the governorship, handles this sometimes socially divisive issue. His 7th Circuit brief disappointed — but didn't surprise — Juliet Leftwich, the legal director of Legal Communities Against Violence in San Francisco. "He just stands in stark contrast to Bill Lockyer, who was an active leader in this area," she said....

Chief Deputy Attorney General James Humes said the Justice Department does plenty to stanch the scourge of guns but simply believes in different approaches to the problem. "I would say Jerry Brown is much more interested in law enforcement than legislation," said Humes.

Under Brown's leadership, Humes said the department has seized 1,194 firearms and arrested 87 individuals on California's list of those prohibited from carrying firearms. Authorities have also nabbed people illegally transporting guns into the state after buying them at shows in Nevada. As for the attorney general's position in the 7th Circuit case, Humes calls it a "common-sense" approach. "The Second Amendment exists, and it will exist whether we like it or not," he said....

According to Humes, the AG didn't weigh in on the 9th Circuit case because he agreed with part of the ruling — the panel had simultaneously affirmed the county's right to regulate guns beyond the home, in sensitive public places. Indeed, Brown argued for similar treatment in his 7th Circuit brief.  The attorney general also held up the 9th Circuit panel ruling as evidence that such high court guidance was necessary.

Beyond raising a variety of issues concerning how Jerry Brown is trying to position himself politically, this article raises in my mind of the interesting challenges that Heller and the Second Amendment incorporation debate create for elected state Attorneys General. 

I would surmise all but a few northern and urban places, it would not be politically wise for a state Attorney General to be vocally opposed to individual gun rights and thus it would not be shrewd to come out publically against incorporation of the Second Amendment.  And yet, I also think that most state Attorneys General realize that there are serious legal and practical headaches if (and when?) the Second Amendment is declared applicable as a constitutional limit on any and all state gun restrictions and regulations.  My guess is that, like AG Brown, most state AG will be inclined to dodge this issue as much as possible while perhaps privately hoping that the Supreme Court refuses to incorporate the Second Amendment.

Some related Second Amendment incorporation posts:

September 22, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

"Plax prison touchdown"

The title of this post is the headline of this little article in today's New York Post.  Here are the basics:

Plaxico Burress is due to turn himself in at 9:30 a.m. today to begin a two-year prison term. The ex-Giant -- who shot himself in the thigh in a Midtown club last November -- pleaded guilty last month to attempted gun possession to avoid serving a mandatory three years if found guilty of possession.  He bought his gun legally in Florida but lacked a New York license.

His time behind bars could drop to 20 months with good behavior. But the self-inflicted wound cost him the $27 million left on his Giant contract.  And under NFL rules, he can't sign with any team until he's completed his term.

As regular readers know, I think the fact that Plax is willingly serving two years in prison for gun possession without even raising a Second Amendment claim is strong evidence that Heller is unlikely to mean much for most law enforcement purposes for quite some time.  Then again, maybe Delonte West is now poised to be a celebrity spokesperson for the Second Amendment.

Some related posts on the Burress cases:

UPDATE:  This New York Times article discusses today's events in state court in which Plaxico official received his two-year prison sentence

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

Saturday, September 19, 2009

Another prominent athlete presents another potential Second Amendment test case

Regular readers know that I was disappointed that Plaxico Buress did not assert a serious Second Amendment claim after being charged and prosecuted in New York with serious crimes based on his possession of a gun for personal self-defense (details here and here and here).  Now, as detailed in this Washington Post article, another prominent athlete present another potential Second Amendment test case:

A D.C. area native-turned-NBA player was arrested in Prince George's County on Thursday after a police officer who pulled him over on the Beltway found that he was carrying three loaded guns, authorities said.

Delonte West, 26, a graduate of Greenbelt's Eleanor Roosevelt High School and a guard for the Cleveland Cavaliers, was traveling north on the Beltway in a three-wheeled motorcycle called a Can-Am Spyder when he cut off a Prince George's canine officer near Route 214, authorities said. The officer pulled over West for making an "unsafe lane change," police said, and when the officer approached the motorcycle, West told him he had a handgun in his waistband.

That prompted the officer to call for backup and search West's vehicle. He found three guns -- a Beretta 9mm in West's waistband, a Ruger .357 magnum strapped to his leg and a shotgun in a guitar case slung over his back, said Maj. Andy Ellis, a spokesman for the Prince George's police.

Police charged West with two criminal counts of carrying a handgun for the Ruger and the Beretta, and issued him a traffic citation for driving "in excess of reasonable and prudent speed," court records show. Ellis said West was within his rights to carry the shotgun.

It is not clear why West was so heavily armed or why he was traveling alone in the Largo area at 10 p.m. on a Thursday, Ellis said. West's father, Dmitri West, said, "All I can say is Delonte was looking behind his back and protecting himself." He said his son was looking out for both specific people and because he was generally concerned about his well-being as a high-profile athlete. He declined to say who might be targeting the NBA star. "Bottom line is there's a lot of not-too-nice people out here," Dmitri West said....

Police arrested West and seized his guns and his motorcycle, Ellis said. He was released from jail early Friday on his personal recognizance, court records show. He is scheduled to appear in court Nov. 20.

Though I am not an expert on Maryland law, I think West may only be facing misdemeanor charges and thus West and his lawyers might not need to bring in Heller and the Second Amendment in order to ensure that these gun possession charges go away quickly.  Nevertheless, if Heller stands for the proposition that the Second Amendment protects a persons right to possess guns for self-defense, it seems that West's gun possession might arguably be constitutionally protected.

September 19, 2009 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (6) | TrackBack

Monday, September 14, 2009

"Citizens with Guns: Firearms & American Identity"

The title of this post is the title of a new article from Pratheepan Gulasekaram, which seems especially timely in light of the recent presence of gun-toting folks at various health-care town halls last month. Also, as the abstract reveals, the article should also be of interest to anyone concerned with the Heller court's suggestion that all felons can be categorically excluded from the Second Amendment:

This article examines the relationship between firearms and American citizenship, both as a matter of legal status and as a matter of perceived American identity.  To do so, this article will explore the link between guns and citizenship as textual matter, a historical and legal narrative, and a symbolic bond.  First, this paper will examine Heller’s largely unnoticed contention that the Second Amendment benefits only citizens.  Such an inquiry requires a comparative analysis of other provisions of the constitution that similarly enumerate the right of “the people.”  In addition, this article analyzes the historical and legal connection between the right to bear arms and status citizenship, noting the relationship between arms-bearing, racialized conceptions of U.S. nationality, and increasing immigration throughout the country’s history.  To complete the exploration, this paper will also consider the symbolic importance of gun-toting in the American legal and cultural landscape.  Here, the article dissects the manner in which gun-related incidents have been used to code some individuals and circumstances as part of the American narrative, while others are coded as foreign and anathema to the American identity.

September 14, 2009 in Second Amendment issues | Permalink | Comments (4) | TrackBack

Tuesday, September 01, 2009

Reactions to the NC ruling in Britt felon gun rights case

This new local article, headlined "Felon wins the right to own a gun: Narrow ruling causes big stir," reports on reactions to the North Carolina Supreme Court's ruling in Britt v. State, No. 488A07 (NC Aug. 28, 2009) (available here), that at least North Carolina felons have a state constitutional right to bear arms under the North Carolina Constitution (discussed here). Here are excerpts:

The opinion applied only to Barney Britt, who was convicted of a drug crime in 1979, and it didn't have an immediate effect on the thousands of other felons in the state. Criminal defense lawyers who practice in federal courts said they don't know what effect, if any, the opinion will have on federal rules, which prevent felons from buying and owning weapons except when a state has restored that right....

Though the opinion focused just on Britt's case, both sides of the gun control issue saw the ruling as significant because the state's highest court found that Britt had a right to bear arms that trumped the state's ability to restrict him from owning any weapons.

Advocates spent Monday poring over the 5-2 decision in Britt v. State of North Carolina. The decision was seen as a victory for those who view government restrictions as too strict, while those in favor of tighter gun control described it as an alarming blow. "This has implications beyond just North Carolina," said Robert Levy of the Cato Institute, a Washington-based Libertarian think tank that opposes gun control. "North Carolina has now decided that some felonies are not so serious to result in deprivations of the right to defend oneself."

Roxane Kolar, director of North Carolinians against Gun Violence, said the decision was troubling. "I've never heard of this before, of a felon having an inalienable right to own a weapon," she said. "It's putting a lot of our state gun laws at risk."

The decision could spark a rush to local courthouses as felons try to have their rights to own and store firearms in their homes restored. Those with the best chance would likely be those with cases similar to Britt's; people convicted of nonviolent crimes who had their right to own a gun restored and then taken away with a 2004 law, said Jeanette Doran, a senior staff attorney with the N.C. Institute for Constitutional Law.

Legal e-mail message boards lit up over the weekend, with lawyers swapping tales of clients convicted of felony littering charges then barred from hunting deer for the rest of their lives.

The state legislature may address the issue with a bill introduced for the 2009-2010 session by Rep. Phil Haire, a Democrat from Western North Carolina, that would give limited hunting privileges to nonviolent felons....

The office of N.C. Attorney General Roy Cooper, who defended the state law in the case, declined to comment on the ruling....

Kolar of North Carolinians against Gun Violence expressed concern that judges would be the ones to decide whether felons could own guns, something she says gives too much discretion to the courts. Jim Woodall, the district attorney for Orange and Chatham counties, said he found the opinion worrisome and hoped it wouldn't be applied broadly to others. "They're carving out a one-person exemption," he said.

September 1, 2009 in Second Amendment issues | Permalink | Comments (14) | TrackBack

Saturday, August 29, 2009

North Carolina Supreme Court finds state constitutional right for some felons to bear arms

Thanks to this post at The Volokh Conspiracy, which is titled "Felons and the Right To Bear Arms," I discovered that late yesterday the North Carolina Supreme Court ruling in Britt v. State, No. 488A07 (NC Aug. 28, 2009) (available here), that at least North Carolina felons have a state constitutional right to bear arms under the North Carolina Constitution.  Here are a few key passages from the notable (and very important?) ruling:

Article I, Section 30 of the North Carolina Constitution provides, in pertinent part: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”  This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly’s police power, but that any regulation must be at least “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”...

Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff completed his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987.  No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him....

Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of lawabiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....

Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety.  In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.  We conclude that N.C.G.S. § 14-415.1 is an unconstitutional violation of Article I, Section 30 of the North Carolina Constitution as applied to this plaintiff.  As discussed above, pursuant to N.C.G.S. § 14-415.1, the State unreasonably divested plaintiff of his right to own a firearm.  Such action violates plaintiff’s right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution.

Though this ruling is based only on state constitutional law, it raises a host of very interesting questions in the wake of Heller (especially given that the language of the NC constitution is parallel to the language of the Second Amendment).  Let me do just a little issue spotting:

1.  Does this ruling automatically extend to all other NC felons who can show a "history of respect for the law [and] the absence of any evidence of violence" in their lives?  My guess is that a lot of drug and drunk driving felons might reasonably make such a claim; but do they need to go to court to get a formal ruling that they are like Britt?

2.  Because Britt had his civil rights restored under state law, he is no longer prohibited under federal statutory law from possessing a firearm.  But can this ruling help NC felons who don't have their civil rights restored if and when they get charged in federal court with felon-in-possession under federal law?

3.  Will any lower federal courts be moved by the bold and clear assertion in Britt that the NC blanket ban on felon gun possession is "an unreasonable regulation, not fairly related to the preservation of public peace and safety"?   

August 29, 2009 in Second Amendment issues | Permalink | Comments (23) | TrackBack

Sunday, August 16, 2009

Are there any must-reads (beyond Heller) for my Second Amendment Seminar?

Regular readers know I am interested in the intersection of the Second Amendment and the criminal justice system in the wake of Heller.  My interest is finding expression this coming fall semester — which starts tomorrow(!) at The Ohio State University Moritz College of Law — through the teaching of a Second Amendment Seminar.

Though I am going to have students help shape the direction and content of the seminar, I want to make sure I cover modern Second Amendment essentials.  But, as I assembled a reading list, I started thinking that the only essential read in the modern corpus is just the Supreme Court's decision in Heller

Of course, there are lots of cases and lots and lots and lots of commentary — both pre-Heller and post-Heller — discussing the Second Amendment.  I plan to cover key post-Heller issues like incorporation and standards of review in the seminar, and I will have students read cases and commentaries on these and other topics.  But I am not sure if anything qualifies as a true must-read for discussing and debating the modern Second Amendment other than Heller itself.

Perhaps readers have a different view, and I would be grateful for any input on the topic in the comments.

Cross-posted at LSI

August 16, 2009 in Second Amendment issues | Permalink | Comments (8) | TrackBack

Friday, August 14, 2009

Split Tenth Circuit panel overturns Second Amendment ruling for misdemeanant via mandamus

Back in June, a federal district judge issued this brief opinion in US v. Engstrum, No. 2:08-CR-430 (D. Utah June 15, 2009), that ruled that the Second Amendment should allow someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor to present an affirmative defense "that he posed no prospective risk of violence."  As I noted in this post on the rulingEngstrum was the first and so far only victory for a federal criminal defendant arguing that the Second Amendment should impact his federal criminal prosecution for a gun possession crime.  But, as detailed in this order issued by the Tenth Circuit late yesterday, this victory for gun rights did not last even two months.

Here is the start of the order in In re United States issued by a Tenth Circuit panel upon the government's petition for mandamus seeking to preclude the defendant in Engstrum from getting a Second Amendment jury instruction:

Petitioner United States of America has filed a petition for a writ of mandamus seeking an order from this court preventing the district court from instructing the jury that defendant, Rick Engstrum, may not be deprived of his Second Amendment right to bear arms under 18 U.S.C. § 922(g)(9), if he can show by a preponderance of the evidence that he does not pose a prospective risk of violence.  For the following reasons, we grant the writ, and direct the district court not to instruct the jury on this Second Amendment defense, including not giving the proposed jury instruction.

Significantly, Judge Murphy dissents and is able in this paragraph to summarize why this issue should be subject to a lot more debate and consideration in the wake of Heller:

The right to mandamus relief must be “clear and indisputable,” and the burden of proof is on the petitioner.  In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1187 (10th Cir. 2009) (quotation omitted). In my view, the government has failed to meet this burden.  This court has not yet passed on the constitutionality of 18 U.S.C. § 922(g)(9) in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). That opinion’s recognition of an individual right to bear arms for the defense of self, family, and property, id. at 2817-18, raises substantial questions about how 18 U.S.C. § 922(g)(9) may be constitutionally applied.  Heller’s dictum regarding the validity of “longstanding prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms, ” 128 S. Ct. at 2816-17, does not address the question.  The defendant is not a felon, there is no suggestion he is mentally ill, he did not possess the firearm in a school or government building, and the sale of the firearm is not at issue.  Notably, the charge is not under a longstanding statute prohibiting possession of a firearm.  The statute interdicting the possession of a firearm by a person previously convicted of a domestic violence misdemeanor, 18 U.S.C. § 922(g)(9), was enacted in 1996.  Our recent opinion in United States v. McCane, No. 08-6235, 2009 WL 2231658 (10th Cir, Jul. 28, 2009), is not on point because the McCane court was applying the statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), and that court relied entirely upon the dictum from Heller regarding possession of firearms by felons.  McCane, 2009 WL 2231658 at *8.  There is simply no authority for the government’s assertion that § 922(g)(9) is constitutional in light of Heller.

As I have said before and will say again, anyone seriously committed to the Second Amendment and gun rights getting serious constitutional respect should be seriously disturbed by how willing and eager lower courts have been to accept federal prosecutors' arguments that Heller is of no consequence for an array of broad and severe federal gun possession crimes.  But, disappointingly, frequent Second Amendment advocate David Kopel has a pretty tepid reaction here at The Volokh Conspiracy to the Tenth Circuit's seemingly remarkable ruling that, from my reading, shows significant antipathy toward serious consideration of Second Amendment rights.

I sincerely hope that the defendant in Engstrum seeks en banc review of the panel's order.  Not only does Judge Murphy's dissent effectively highlight why mandamus relief here seems inappropriate, but Judge Tymkovich terrific concurrence (discussed here) about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here), highlights that at least one other member of the Tenth Circuit is troubled by the important constitutional issues getting summary treatment in the rush to ensure federal defendants get no benefits from Heller.  I wonder if the NRA or  any other persons so eager to assail Justice Sotomayor for her precedent-respecting Second Amendment work as a circuit judge might back the defendant in this case when other circuit judges have gone far beyond precedent to reject a seemingly reasonable Second Amendment claim.

Some related Heller and Second Amendment posts:

August 14, 2009 in Second Amendment issues | Permalink | Comments (5) | TrackBack

Wednesday, August 05, 2009

Why Second Amendment supporters need to be helping out Plaxico Burress

I just noticed this item from a New York-based website carrying this title, "Gun control 101: Plaxico Burress going to prison should end 2nd amendment confusion."  Here is a snippet:

Burress going to jail should be the final proof to anyone who thinks differently about the 2nd amendment applying to individuals instead of what it is: a constitutional guarantee that the states will always have the right to have their owned armed militias (today, the National Guard)....

So if the 2nd amendment applies to individuals where are the gun groups and the NRA, where are the 2nd amendment lawyers willing to challenge the law in court as being unconstitutional?  You cant have it both ways.  If the 2nd amendment applies to individuals then Burress' arrest and jail sentence is unconstitutional.

Burress of course being a star football player making about $10 million a year has access to the best legal counsel money can buy.  His legal counsel is trying to plea bargain for Burress and has offered a year in jail (the law carries a mandatory 3 1/2 years).  One thing is certain.  Burress is going to jail, the only question is for how long. Does that sound like a person has a fundamental constitutional right to keep and bear arms and that the right  cant be infringed?...

Burress is going to jail for carrying a concealed weapon without a permit within the New York City limits.  No one has said the law is unconstitutional.  And no one will.

Obviously, the author of this commentary has not been reading this blog, since I have been repeatedly questioning the constitutionality of New York's law in light of Hellersince Plaxico Burress first shot himself.  But the deeper point is that the failure of Second Amendment fans to speak up loudly in support of Plaxico's constitutional rights to gun possession for self-protection enables gun control supporters to use a high-profile case to undermine arguments for Second Amendment rights.  Unless and until Second Amendment supporters fight back on the Plaxico front (with at least some gun rights rhetoric if not gun rights litigation) the general public will get the (justified?) impression that the Second Amendment remains legally inconsequential even after Heller.

Some related posts on the Burress cases:

UPDATE:  A number of commentators are making much of the fact that Plaxico Burress did not seek a permit for carrying a gun in New York City and suggest that he is justifiably and constitutionally punished for this failing.  In light of these comments, I will quote another notable portion of the above-linked commentary:

One thing is certain.  Burress is going to jail, the only question is for how long.  Does that sound like a person has a fundamental constitutional right to keep and bear arms and that the right can't be infringed?

And it really has nothing to do with the fact that Burress didn't have a permit.  Its close to impossible to get a concealed weapons permit from the NYPD in New York City.  No ordinary citizen can get one.  You have to prove you have a compelling reason to carry a concealed weapon and if the NYPD doesn't agree you don't get it....

Requiring a permit to have a gun is typcial in most states.  Can anyone name one single fundamental right in the constitution that requires a permit in order for a person to exercise that right?  Do you need a permit to practice your religion?  To be a journalist?  To write or publish anything you wish?  Do you need a permit not to testify against yourself?

Critically, my main point with this post and others concerning Plaxico's fate — as well as what I take to be the main point being made by the piece linked above — is that the seem to expose the apparent faint-heartedness of the many groups and politicians who in "safer" settings make a lot of noise about the importance of gun rights and the fundamental nature of the Second Amendment.  I do not think Plaxico necessarily has a slam-dunk Second Amendment claim — there is the issue of incorporation and other legal complications — but the basic fact that the usually vocal pro-gun folks have said so little  in Plaxico's defense suggests to me that few really, truly believe in or are prepared to vocally advocate a forceful and fundamental individual right to carry arms for self-protection.

August 5, 2009 in Second Amendment issues | Permalink | Comments (19) | TrackBack

Monday, August 03, 2009

Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?

As detailed in this Bloomberg news piece and this official press release from the office of Manhattan District Attorney Robert Morgenthau, today former New York Giants receiver Plaxico Burress was indicted "on charges of possession of a loaded pistol and reckless endangerment in connection with an incident in which he shot himself in the leg at a Manhattan nightclub."  Here are more sentencing details from the Bloomberg report:

After shooting himself, Burress was initially charged with two counts of possession of an unlicensed handgun. His trial was delayed until Sept. 23 when Morgenthau decided to present the evidence to the grand jury.  Morgenthau told the New York Post on July 27 that Burress agreed to serve a year in jail and that prosecutors insisted on two.

If convicted, Burress faces from 3-1/2 years to 15 years in prison for each gun count.  The maximum prison sentence for reckless endangerment is one year, according to Morgenthau.  He will be arraigned in New York state court.  No date is scheduled.

As I have highlighted in some prior posts, I think anyone seriously and deeply committed to enforceable invidivudal right to possess a gun for self-protection ought to be greatly troubled by both the decision to criminally prosecute Burress and by the considerable prison terms being threatened in this case.  Though a few Second Amendment fans have previously express some concern for Plaxico's plight, I will be interested to see if more start coming to his defense now that he has been formally indicted.

Some related posts on the Burress cases:

August 3, 2009 in Second Amendment issues | Permalink | Comments (20) | TrackBack