Sentencing Law and Policy

Notable press account of Skoein Second Amendment ruling with partisan perspectives

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

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

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

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

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

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

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

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

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

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

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

• Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
• Skoien and the many challenges of Second Amendment jurisprudence
• Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession
• Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
• Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller

Skoien and the many challenges of Second Amendment jurisprudence

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

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

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

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

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

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

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

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

• Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
• Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits
• Chicago's gun control response to the McDonald ruling
• Second Amendment lawsuit already filed against new Chicago gun regulations
• Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession
• Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
• Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller

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

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

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

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

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

• Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits
• Chicago's gun control response to the McDonald ruling
• Second Amendment lawsuit already filed against new Chicago gun regulations
• Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession
• Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
• Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller

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

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

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

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

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

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

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

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

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

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

Second Amendment lawsuit already filed against new Chicago gun regulations

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

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

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

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

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

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

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

• Chicago's gun control response to the McDonald ruling
• Effective review of state gun laws likely to be challenged after McDonald
• The "Silent Six" states worth watching for post-McDonald Second Amendment litigation
• SCOTUS decides Second Amendment applies to the states in 5-4 opinion
• The likely state criminal litigation impact of McDonald and state applications of the Second Amendment
• Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits
• Interesting details about the first(?) post-McDonald suit brought in North Carolina
• Should local Wisconsin DA be lauded or lambasted for his broad reading of Heller and McDonald?

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

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

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

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

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

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

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

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

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

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

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

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

Chicago's gun control response to the McDonald ruling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Effective review of state gun laws likely to be challenged after McDonald
• The "Silent Six" states worth watching for post-McDonald Second Amendment litigation
• North Carolina Supreme Court finds state constitutional right for some felons to bear arms
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• SCOTUS decides Second Amendment applies to the states in 5-4 opinion
• The likely state criminal litigation impact of McDonald and state applications of the Second Amendment
• Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

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

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

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

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

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

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

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

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

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

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

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

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

• North Carolina Supreme Court finds state constitutional right for some felons to bear arms
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• SCOTUS decides Second Amendment applies to the states in 5-4 opinion
• The likely state criminal litigation impact of McDonald and state applications of the Second Amendment
• Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

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

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

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

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

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

Some older posts on the Heller and felon gun rights:

• Justice Scalia sells out felon gun rights, but on what basis exactly?
• The lack of originalist justification for excluding felons from the Second Amendment
• Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
• Assailing the unjustified Second Amendment limits in Heller
• "Convicted Felon Sues State Over Right To Bear Arms"
• Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit
• North Carolina Supreme Court finds state constitutional right for some felons to bear arms
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Heller's impact on felon-in-possession crimes finally starting to generate attention
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• "Why Can’t Martha Stewart Have a Gun?"
• SCOTUS decides Second Amendment applies to the states in 5-4 opinion
• The likely state criminal litigation impact of McDonald and state applications of the Second Amendment

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

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

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

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

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

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

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

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

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

Here is more from the SCOTUSblog folks:

The majority seems divided, presumably on the precise standard.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few related Second Amendment posts:

• "Convicted Felon Sues State Over Right To Bear Arms"
• Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit
• North Carolina Supreme Court finds state constitutional right for some felons to bear arms
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Heller's impact on felon-in-possession crimes finally starting to generate attention
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• "Why Can’t Martha Stewart Have a Gun?"

"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:

• Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit
• North Carolina Supreme Court finds state constitutional right for some felons to bear arms
• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
• The lack of originalist justification for excluding felons from the Second Amendment
• Assailing the unjustified Second Amendment limits in Heller
• Heller's impact on felon-in-possession crimes finally starting to generate attention
• Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?
• Notable new Alaska appellate decision on denying gun rights to non-violent felons
• "Why Can’t Martha Stewart Have a Gun?"

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

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.