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

What does Sarah Palin think about Heller's limits on Second Amendment right?

According to this CNN item, Sarah Palin addressed a National Rifle Association dinner in Anchorage on Saturday and gave “a stirring speech on 2nd Amendment rights.”  Though I doubt former Gov. Palin gave lots of attention to the Second Amendment sentencing issues about which I often blog, I cannot help but enjoy speculating that she decided to quit being governor so that she could join me as one of the few (but growing?) active and vocal critics of the unspecified and unjustified (and unjustifiable?) extreme limits on Second Amendment rights that appear in Heller.

Some related Second Amendment posts:

August 3, 2009 in Second Amendment issues | Permalink | Comments (6) | TrackBack

Thursday, July 30, 2009

Heller's impact on felon-in-possession crimes finally starting to generate attention

As regular readers know, I have been blogging about the possible impact of the Second Amendment on federal felon-in-possession crimes and sentencing since the Supreme Court first granted cert in Heller.  Now, thanks to a terrific concurrence by Judge Tymkovich (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), this issue is finally starting to get some broader attention. 

Specifically, in this post at SCOTUSblog, Lyle Denniston responds to Judge Tymkovich's opinion and asks "Did Heller say too much?". Similarly, in this post at The Volokh Conspiracy, Eugene Volokh comments thoughtfully on Judge Tymkovich's opinion.  Here is hoping that other big bloggers and also the media start engaging with this issue more thoughtfully and dynamically.

Some related Second Amendment posts:

July 30, 2009 in Second Amendment issues | Permalink | Comments (21) | TrackBack

Tuesday, July 28, 2009

"[T]he felon dispossession dictum may lack the 'longstanding' historical basis that Heller ascribes to it"

The title of this post is a line from a concurrence by Judge Tymkovich 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). 

In his concurrence to an opinion rejecting a Second Amendment challenge to a 922(g)(1) conviction, Judge Tymkovich explains why he feel he must follow the dicta in Hellerindicating that felon-in-possession laws are sound under the Second Amendment.  But he goes on to express concern about its soundness --- which he describes as "deus ex machina" dicta and leads him to wonder "at least with regard to felon dispossession, whether the Heller dictum has swallowed the Heller rule."  Judge Tymkovich also expresses concern with the Heller dicta's "inhibiting effect" on lower courts charged with applying Heller.

Needless to say, in light of many of the prior posts in which I have discussed these issues, I am very glad to see Judge Tymkovich giving this matter thoughtful treatment.

Some related Second Amendment posts:

July 28, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Saturday, July 18, 2009

One more take on Sotomayer and the status of the Second Amendment

Today's edition of the Wall Street Journal includes this editorial headlined "Second Amendment Confidential: Sotomayor takes the Fifth on gun rights." Here are excerpts:

Now making their way to the Court are cases about whether the right to bear arms also applies to the 50 states via the Due Process Clause of the Fourteenth Amendment.  If it doesn't, then Heller is a hollow shell....

The Fourteenth Amendment was drafted in part to address the rights of freed slaves to carry a weapon against the efforts of some Southern states to proscribe that right.  Coming as the right to bear arms does in the Bill of Rights only after the freedom of speech, we think there's little doubt the Founders considered the Second Amendment "fundamental" enough to apply everywhere.

Judge Sotomayor has said that it would be appropriate to recuse herself from any rehearing of Maloney v. Cuomo by the Supreme Court, but this week she stopped short of promising to do so. Our guess, based on her history, is that she'll vote like the Court's four liberals who dissented in Heller and say gun rights don't apply to the states.

I am not sure that Judge Sotomayor's votes on these issues are so predictable, especially because many so-called liberals are eager to have a robust incorporation doctrine.  Moreover, as I have stressed in lots of prior posts, if the Founders truly "considered the Second Amendment "fundamental" enough to apply everywhere," I would also think they would have considered the Second Amendment "fundamental" enough to apply to everyone, including former felons and misdemeanants who have so far been left out of serious critical discussion of the Second Amendment's reach and limits.

Some related Second Amendment posts:

July 18, 2009 in Second Amendment issues | Permalink | Comments (23) | TrackBack

Tuesday, July 14, 2009

Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?

The question in title of this post is drawn from a line from this commentary at FOXNews authored by Ken Blackwell and Ken Klukowski, which carries the headline "Sotomayor, Civil Rights and Guns."  The piece is focused principally on whether the Second Amendment should apply to the states, but it leaves me wondering whether and how the authors and others urging Second Amendment incorporation justify excluding former felons and misdemeanants from the Second Amendment:

Over the next two weeks, one of the critical issues will be your civil rights on guns.  Senators could benefit from context to understand the importance of this civil right to protect families, especially racial minorities....

When slavery ended in America after the Civil War, no civil right was more important for black Americans than the right to keep and bear arms.  We passed an amendment to the Constitution to make that possible....  History makes clear that our post-Civil War leaders considered no civil right more important in 1868, when they ratified the Fourteenth Amendment, than the Second Amendment right to keep and bear arms....

But shortly after the Fourteenth Amendment was passed, the Supreme Court held that the Second Amendment did not apply to the states, and did so twice again just a few years later.  Judge Sotomayor relied on one of these cases when she said that people have no gun rights when it comes to state or city laws.  Her supporters laud this opinion, saying that it proves she upholds precedent.

But not all precedents should be upheld.  The cases that Judge Sotomayor relied on also state that our revered First Amendment doesn't apply to the states, either.  Thankfully, the Supreme Court has long since rejected that idea.  None of Judge Sotomayor's boosters seem willing to discuss the fact that these precedents she relied on denied free speech and religious liberty against cities and states....

Clearly, sometimes precedent must be overruled.  Specifically, precedent should be overruled when doing so fulfills the original intentions of the Founding Fathers to make people free, as those intentions are found in the Constitution's text.   The Second Amendment deserves to be on equal footing with the First Amendment.

As regular readers may know, I have often embraced viewing the Second Amendment as a civil right that should "on equal footing with the First Amendment." It is this perspective that makes me so troubled by certain federal prosecutionsand severe sentences imposed on felons and some misdemeanants merely for seeking to exercise their "civil rights on guns." 

To my knowledge, it would be unconstitutional for Congress to criminalize the exercise of any First Amendment rights by all felons and some misdemeanants.  And yet, despite all the concerns expressed about Judge Sotomayor's regard for the Second Amendment, few have had the courage to even acknowledge how existing federal felon-in-possession laws undermine this "civil right" for tens of millions of Americans.  Though the Second Amendment is starting to get some play in Day 2 of the Sotomayor hearing, it seems that the truly challenging questions raised by a serious committment to Second Amendment rights are still being avoided by everyone.

Some related Second Amendment posts:

July 14, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Thursday, July 09, 2009

UCLA Law Review symposium on Heller and the Second Amendment

Thanks to this post at Concurring Opinion, I see that the UCLA Law Review has now published a terrific (and large) issue devoted to "The Second Amendment and the Right to Bear Arms After D.C. v. Heller."  This issue, which has more than a dozen cutting-edge pieces, looks like a must-read for not only gun gurus, but also folks interesting in modern debates over constitutional interpretation and public-safety regulations.

As regular readers know, I am very interested in examining if and when Heller and the Second Amendment will (1) impact prohibitions on gun possession for felons and misdemeanants, and (2) impact severe gun sentences.  Consequently, I will be grateful to anyone who helps me see if and where the articles in this issue speak to these matters.

A few related Heller and Second Amendment posts:

July 9, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

Monday, June 22, 2009

Lots of new reading for Second Amendment fans

I have noticed that a wave of Heller and Second Amendment scholarship is starting to crash on the beaches of SSRN.  Specifically, these four new pieces have all showed up in just the last few weeks:

Heller and Nonlethal Weapons by Craig S. Lerner & Nelson Lund

The District of Columbia v. Heller and Antonin Scalia's Perverse Sense of Originalism by William G. Merkel

Scope of Second Amendment Right - Post-Heller Standard of Review by Ivan E. Bodensteiner

Heller High Water? The Future of Originalism by Jamal Greene

This new set of pieces has me thinking that Heller is a case that has far more impact on scholarly agendas than on actual gun regulations.  The pieces also have me wondering if anyone is actively working on a Second Amendment casebook or reader, which could make life a lot easier as I gear up to teach a Second Amendment seminar in the fall.

Some recent related Heller and Second Amendment posts:

June 22, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

Friday, June 19, 2009

First(?) significant(?) Second Amendment ruling favoring a federal criminal defendant

Thanks to this post by Eugene Volokh, titled "Rare (Partial) Victory in Second Amendment Case," I learned that earlier this week a federal district judge issued this brief opinion in US v. Engstrum, No. 2:08-CR-430 (D. Utah June 15, 2009), that rules in favor of a criminal defendant based on the Second Amendment.  Though Eugene calls this a "rare" victory, I think it is 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. 

The ruling in Engstrum is a nuanced and somewhat limited ruling (which is why it is described as just a "partial" victory for the defendant).  Despite its limits, I still think Engstrum is potentially significant for both legal and political reasons.  Here is how Eugene describes the ruling:

A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person).  The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

The comments to Eugene's post are as dynamic and nuanced as is the ruling in Engstrum, and I hope readers of this blog will add to the dialogue. 

Notably, the ruling concludes by providing that "the government and Defendant may submit briefs to the Court within ten days of the date of this Order, addressing: (1) the wording of the Court’s proposed jury instruction; and (2) the Court’s ruling on Defendant’s burden of production at trial."  Perhaps readers might even make some suggestions about what the government and the defendant ought to say in these briefs.

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

Thursday, June 04, 2009

NRA quickly petitions SCOTUS for Second Amendment incorporation

As detailed in this post at SCOTUSblog, only one day "after losing a major test case in an appeals court on the scope of the Second Amendment, the National Rifle Association — the nation’s leading advocate of personal gun rights — asked the Supreme Court on Wednesday to apply the Amendment to state, county and city government laws that seek to regulate firearms."  The NRA's cert. petition can be accessed at this link (via The Volokh Conspiracy), and here are a few notable snippets:

The First, Second, and Fourth Amendments all refer to “the right of the people” to do certain things or be free from certain governmental restraints.  The Second Amendment has a purpose clause clarifying that exercise of the right makes possible a well regulated militia, which is “necessary to the security of a free state.”

There is a strong presumption that an explicitly-guaranteed substantive right is fundamental....

Heller held as a matter of law that “the inherent right of self-defense has been central to the Second Amendment right.” 128 S. Ct. at 2817.  The right to have arms allows one to protect life itself, and the Second Amendment declares its purpose to be “the security of a free state.”...

“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” Duncan, 391 U.S. at 155-56.  The Second Amendment also prevents oppression: “when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Heller, 128 S. Ct. at 2801....

The Second Amendment does not represent an inferior right which a court may subjectively relegate as beneath the usual rules of incorporation.  “To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it.  This is to disrespect the Constitution.” Ullmann v. United States, 350 U.S. 422, 428-29 (1956).  No constitutional right is “less ‘fundamental’ than” others, and “we know of no principled basis on which to create a hierarchy of constitutional values . . . .”  Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982).

I am pleased to see the NRA move so quickly and aggressively to encourage the Supreme Court to take up and resolve whether the Second Amendment applies to the states.  But all this strong language in the cert petition makes my again annoyed and troubled that the NRA and other Second Amendment fans have been so slow and passive in response to post-Heller rulings that have rejected gun rights for nearly everyone ever convicted of a crime.

Obviously, one does not completely and permanently lost all their First or Fourth Amendment rights, or their rights to a jury trial, just because one is convicted of any felony or the wrong type of misdemeanor.  But, since Heller, courts have regularly upheld federal gun possession convictions for all felons and certain misdemeanants.  And, to my knowledge, neither the NRA nor other Second Amendment groups have expressed one bit of concern about these developments. 

The NRA in this cert petition asserts that the "Second Amendment does not represent an inferior right." But the NRA's own unwillingness to raise concerns about the denial of this right to those who are politically unpopular (i.e., those convicted of any crime, even non-violent crimes) reveals to me that even the NRA and other gun groups feel compelled to concede that the Second Amendment is an inferior right to other rights protected by the Constitution.

Some related Second Amendment posts:

June 4, 2009 in Second Amendment issues | Permalink | Comments (11) | TrackBack

Tuesday, June 02, 2009

Seventh Circuit resists extending Second Amendment to the states

The Seventh Circuit (per Judge Easterbrook) today ruled that, in light of existing Supreme Court precedent, the Second Amendment is not applicable to the states in NRA v. City of Chicago, No. 08-4241 (7th Cir. June 2, 2009) (available here). Here are just a a few of the many intriguing passages with cite omitted) from an amusing (and quixotic?) ruling:

Thus far neither the third nor the seventh amendment has been applied to the states — nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth.  How the second amendment will fare under the Court’s selective (and subjective) approach to incorporation is hard to predict....

It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868.  Blackstone also thought determinate criminal sentences (e.g., 25 years, neither more nor less, for robbing a post office) a vital guarantee of liberty.  That’s not a plausible description of American constitutional law....

Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible.  An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns.  A modification of the self-defense defense may or may not be in the best interest of public safety — whether guns deter or facilitate crime is an empirical question — but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868.  The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate....

[T]he municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule.  Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.  How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

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

Friday, May 22, 2009

Notable new Alaska appellate decision on denying gun rights to non-violent felons

Thanks to this post at Volokh, I learned of an interesting new Alaska Court of Appeals decision in Wilson v. Alaska (available here) addressing whether nonviolent felons have any rights under the state's Constitution.  Here are basic parts of the opinion for the court:

The thrust of Wilson’s argument is that the statute prohibiting a felon from possessing a concealable firearm violates article I, section 19 of the Alaska Constitution because it does not differentiate between violent and non-violent felons, and thus is not narrowly tailored to achieve the State’s compelling interest in preventing violent crime. Wilson argues that article I, section 19 guarantees an individual’s right to keep and bear arms, and therefore any law that restricts that right must be narrowly tailored to protect a compelling government interest.

Wilson points out that he was convicted of a non-violent, class C felony — theft in the second degree — for fraudulently obtaining unemployment benefits. He states that he is a sixty-seven-year-old man who lives in a cabin on a homestead, lives a subsistence lifestyle, and needs a handgun for personal protection. He argues that the State cannot justify restricting his constitutional right to possess a concealable firearm....

[U]nder our prior cases, we have rejected the constitutional challenge that Wilson now brings. Furthermore, other states have consistently rejected similar constitutional challenges.  We accordingly conclude that Judge Wolverton did not err in denying Wilson’s motion to dismiss.

The separate opinions that accompany this somewhat analysis talk through this interesting issue in a lot more detail.

Some related Second Amendment posts:

May 22, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Monday, April 13, 2009

"Man with weapons cache appealing on Second Amendment"

The title of this post is the headline of this local article reporting on a notable federal gun case from Connecticut.  Here are the basics:

A Berlin man convicted in federal court on two dozen weapons charges will pursue an appeal based on a judge’s denial of his second-amendment rights, his attorney said. Alan Zaleski, 47, formerly of 863 Shuttle Meadow Ave., is facing 10 years in federal prison for each count when he is sentenced in June.  He was indicted by a grand jury in 2007 after Berlin police, with the help of other departments, found a huge stash of weapons in August 2006 on his booby-trapped property.

Attorney William Koch Jr., representing Zaleski, said he’ll likely mount an appeal based on a federal judge’s decision to not allow him to introduce arguments that his client considered himself part of the state’s “unorganized militia.”...  During a three-day search of the property, Berlin and New Britain police found dozens of machine guns and semi-automatic firearms, multiple handguns and rifles, silencers, three types of grenades, pipe bombs and IEDs — improvised explosive devices — and 67,000 rounds of ammunition....

Koch said U.S. District Court Judge Ellen Bree Burns improperly denied him the chance to present Zaleski’s views on the militia and his belief that the Bible accepts violence, including the possession of weapons.  Burns ruled that Zaleski could not mount a First or Second Amendment defense before the trial started.  Burns also twice denied Zaleski’s motions to have the case dismissed on the grounds he had a right to own the illegal guns because he was a member of the state’s “unorganized militia.”

April 13, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Wednesday, April 08, 2009

Interesting report on a Heller argument in the Seventh Circuit

I received today via e-mail this interesting report from a helpful federal public defender:

Some time ago, I advised you of a decision in the Western District of Wisconsin on my motion to dismiss in a 922(g)(9) case based on Heller. The case was United States v. Steven Skoien [and the SL&P blog coverage can be accessed here].  

I just wanted to let you know that we had oral argument on the case in the 7th Circuit this Monday and, although it is clearly an uphill climb, the court seemed more receptive to the claim than I expected them to be. Judge Sykes, in particular, seemed very troubled by the fact that 922(g)(9) provides a lifetime ban that, in effect, treats misdemeanants worse than felons, because misdemeanants can not petition to have their rights restored. The panel seemed to be struggling with what standard of scrutiny to apply.  As you know, if you are interested, you can listen to the argument on the court's website [via this link].

Some related Second Amendment posts:

April 8, 2009 in Second Amendment issues | Permalink | Comments (4) | TrackBack

Sunday, March 29, 2009

Noting the Second Amendment dogs that did not bark in Hayes

Now available via SSRN is this effective little piece of student scholarship commenting on the Supreme Court's work last month in US v. Hayes upholding a gun possession conviction for a misdemeanant.  The piece is is titled "To Heller and Back: Why Many Second Amendment Questions Remain Unanswered After United States v. Hayes," and here is the abstract:

In District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects an individual right to possess firearms.  More recently, in United States v. Hayes, the Supreme Court upheld a federal statute which criminalizes the possession of firearms by persons previously convicted of misdemeanor domestic violence offenses.  This essay argues that the Hayes decision cannot be squared with the individual right to keep and bear arms enunciated in Heller.

Some related Second Amendment posts:

March 29, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

Tuesday, March 17, 2009

"Why Can’t Martha Stewart Have a Gun?"

The title of this post is the title of a new article by C. Kevin Marshall that will appear the Spring 2009 issue of the Harvard Journal of Law and Public PolicyA helpful reader sent me a copy of the article, perhaps after noticing this post I wrote way back in January 2008 questioning the justification for asserting that Martha Stewart and Scooter Libby and other non-violent felons are completely and forever excluded from the Second Amendment's protection.  I have secured permission to post this new article, which starts this way:

In 2004, domestic diva Martha Stewart was convicted of obstruction of justice, making false statements, and two counts of conspiracy in connection with dubious stock transactions.  Although sentenced to only five months in jail plus a period of supervised release, she risked a much harsher punishment.  Because she was convicted of a crime punishable by more than a year in prison, federal law bans her from having any gun.  Her ban is for life, unless the Attorney General lifts the disability — a because Congress regularly bars the Bureau of Alcohol, Tobacco, Firearms, and Explosives from spending any money to review petitions to lift firearms disabilities.

Is the public safer now that Martha Stewart is completely and permanently disarmed?  More to the point, how could such a ban be constitutional, now that the Supreme Court, in District of Columbia v. Heller, not only has confirmed that the Second Amendment secures a personal right to keep and bear arms, but also has emphasized its historical tie to the right of self-defense?

Here is how Mr. Marshall concludes his exploration of this interesting and important post-Heller topic:

Research and analysis need to replace dicta and assertions on this topic.  Especially after Heller, there is much room for further thinking and discussion.  Yet wherever the constitutional line may be, it is difficult to see the justification for the complete lifetime ban for all felons that federal law has imposed only since 1968.  And among the various lines that the Second Amendment might draw, it is at least curious how Martha Stewart could merit anyone’s concern.

Download Marshall article on 2A and felon gun possession

Some related Second Amendment posts:

March 17, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

Monday, March 16, 2009

New York Times noticing Heller's lack of practical significance

I am pleased to see that the Old Gray Lady is taking note of the fact that the Supreme Court's supposedly revolutionary Second Amendment ruling in Heller has not had much of a practical impact.  Specifically, Adam Liptak has this new piece on Heller's impact for the New York Times, headlined "So Far, Few Ripples From Landmark Ruling on Guns."  Here are snippets:

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts.  They have upheld laws banning machine guns and sawed-off shotguns.  They have upheld laws making it illegal to carry guns near schools or in post offices.  And they have upheld laws concerning concealed and unregistered weapons.

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”...

There is one arguable exception to this trend.  Two judges have struck down a part of the Adam Walsh Child Protection and Safety Act, named after the murdered son of John Walsh, the host of “America’s Most Wanted.”  The act says that people accused of child pornography offenses must be prohibited from possessing guns while they await trial.

That provision may well have been unconstitutional as a matter of due process even before Heller, as it seems to impose a punishment before conviction.  But two courts have struck down the provision based partly on the fact that a fundamental constitutional right is at stake....

“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

Regular readers will not be at all surprised by this news, since I have been noting and lamenting the lack of significance that Heller has had in lower courts.  (Just a few examples of my Second Amendment moaning appears in these posts: What if no lower court judges participate in a "Second Amendment Revolution"? and Has there been a single pro-gun-rights rulings in lower courts since Heller?.)

Relatedly, my commentary and complaints about the Supreme Court's work in its recent Hayes gun possession case (see here and here) has been based in part on my view that the Hayes case gave the Justices their very first opportunity to reinforce or repudiate the lack of attention and respect that Second Amendment rights and Heller has received from lower federal courts.  The fact that none of the Justices ever even mentioned the Second Amendment or Heller is its ruling provided strong evidence that not even the Justices who helped rescue the Second Amendment from the historical dust-bin had any serious problems with lower courts throwing lots and lots of dust on the rights that Heller purports to vindicate.

Some related Second Amendment posts:

March 16, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Monday, March 09, 2009

The lack of originalist justification for excluding felons from the Second Amendment

I just saw on SSRN this notable article by Carlton Larson about the Supreme Court's work in Heller, titled "Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit."  Here is the abstract:

This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller.  Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: laws disarming felons; laws disarming the mentally ill; laws prohibiting the possession of firearms in sensitive places; and laws regulating the commercial sale of firearms.  The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ.  The Essay further argues that the exceptions cannot be justified if strict scrutiny is the applicable standard of scrutiny.  Accordingly, some lesser standard of review of firearms regulation must apply.

This little essay confirms my own suppositions about the absence of sound and compelling originalist justification for categorically precluding all felons (not to mention some misdemeanants) from the protections of the Second Amendment.  Consider these passages from the piece:

[S]o far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms....

The absence of an explicit felon exception in the text of the Second Amendment is echoed in state constitutional provisions. Only one state constitutional provision addressing the right to bear arms contains an exception for felons.  This provision, Idaho’s, was enacted in 1978....

In sum, felon disarmament laws significantly post-date both the Second Amendment and the Fourteenth Amendment.  An originalist argument that sought to identify 1791 or 1868 analogues to felon disarmament laws would be quite difficult to make.

Some related Second Amendment posts:

March 9, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Saturday, February 28, 2009

NY Times editorial notes Second Amendment silence in Hayes

While praising the Supreme Court's work in Hayes week, this New York Times editorial highlights the fact that the Second Amendment dog did not bark at all in the first SCOTUS gun control ruling since Heller:

The Supreme Court brushed past flimsy arguments by the gun lobby this week to uphold an important restriction on gun ownership that protects public safety.

The 7-to-2 decision upheld a broad reading of a 1996 federal law written by Senator Frank Lautenberg, Democrat of New Jersey, that bars people convicted of crimes involving domestic violence from owning guns.  A narrow interpretation of the law, excluding domestic abusers convicted of a generic charge of battery, would have rearmed thousands of dangerous people.

The ruling was the court’s first on guns since last year’s landmark decision striking down the District of Columbia’s ban on possessing handguns in the home.  It was an encouraging sign that the court sees no blanket constitutional barrier to common-sense regulation of firearms. It is notable that not even the two dissenters in the case — Chief Justice John Roberts and Justice Antonin Scalia — asserted that depriving domestic abusers of guns raises a Second Amendment issue.

It is worth noticing that this Times editorial goes out of it way to avoid mentioning that the persons being convicted under the law at issue in Hayes were guilty of only committing a misdemeanor.  Perhaps there were thousands of dangerous misdemeanants that were just waiting to go on shooting sprees if Hayes came out differently, but this kind of talk about dangerousness reminds me of some of the rhetoric often used by the "tough-on-crime" types eager to resist efforts to reduce extreme sentence.

Other recent posts on the Hayes decision:

February 28, 2009 in Second Amendment issues | Permalink | Comments (2) | TrackBack

Friday, February 27, 2009

Notable legislative response to Hayes in Wyoming

Though I have been troubled by the lack of a robust public dialogue about gun rights in the wake of the Supreme Court's ruling in in the Hayes case, I am intrigued to see a legislative response in Wyoming.  This local story provides the details:

Wyoming residents accused or convicted of domestic violence may find it easier to regain their federal gun rights thanks to recent action by the state Legislature.

"For those that want their guns back, it's good," Suzan Pauling, public policy director of the Wyoming Coalition Against Domestic Violence and Sexual Assault, said of the changes to Wyoming law. "I think for domestic violence victims, it's not very good."

Congress in 1996 expanded the law that bans convicted felons from owning guns to apply to people convicted of misdemeanor domestic violence. Wyoming, where hunting and gun ownership are cherished ways of life, has been trying to find a way around the domestic violence provision for years. "Judges in the state seem to be hesitant to take away gun rights because it's such a huge thing in Wyoming," Pauling said. "Having your gun in Wyoming is kind of like being a Wyomingite."

Gov. Dave Freudenthal on Thursday signed House Bill 106.  It will allow Wyoming residents who have been convicted of domestic violence to apply to the court to expunge their record and regain their gun rights.

It requires them to wait at least five years following the conviction before they apply to court and limits them to one expungement. Freudenthal said he's comfortable that judges will be able to review people's conduct for five years after a conviction before considering their expungement requests. "I think that gives you a pretty good chance to look at it, and evaluate their conduct," he said Thursday.

As the story suggests, this legislation was obviously in the works before this week's Hayes ruling.  But I suspect the Hayes case may have help move the legislative process along in some way.

Other recent posts on the Hayes decision:

February 27, 2009 in Second Amendment issues | Permalink | Comments (6) | TrackBack

Thursday, February 26, 2009

Deafening silence from the gun rights crowd about Hayes

With the Supreme Court's Hayes gun possession decision now a few days old, I cannot help but note that none of the prominent gun rights groups or pundits have said boo about the decision.  Whenever there is talk of a new or expanded gun control effort, I can typically count on seeing comments (usually critical) from prominent gun groups like the National Rifle Association or Second Amendment Foundationor from prominent legal bloggers/pundits like David Kopel and Glenn Reynolds at Instapundit and other folks at The Volokh Conspiracy and at Pajamas Media.  Yet, I am still awaiting a single word from any of these folks on the Supreme Court's work in Hayes.

I am not especially surprised that prominent gun rights activists are disinclined to support domestic abuser like Randy Hayes even when he is being federal prosecuted simply for having a rifle in his home.  Nevertheless, I find it notable and telling that, while many traditional First Amendment advocates will vocally defend the speech rights of neo-Nazis, none of the traditional Second Amendment advocates will defend the gun rights of a misdemeanant.  And the conspicuous silence on the Hayes case shows that gun advocates would like to just completely avoid talking about any of the hard political and legal questions raised by the Heller decision.

Other recent posts on the Hayes decision:

February 26, 2009 in Second Amendment issues | Permalink | Comments (8) | TrackBack

Wednesday, February 25, 2009

Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?

The failure of any Justice to even mention the Second Amendment or Heller or the statutory interpretation canon of constitutional doubt in Hayes (basics here and here) has me wondering how far jurisdictions can go in categorically criminalizing gun possession by certain types of persons. 

For example, can a jurisdiction interested in gun control (like DC and other cities) draw from Hayes the idea that it could and should categorically prohibit and criminalize gun possession by anyone and everyone ever convicted of any type of misdemeanor?   Could (and might) a jurisdiction criminalize gun possession by anyone guilty of a moving violation traffic offense or even by anyone with an arrest record?

For various reasons, there is good reason to believe that some jurisdictions will be eager to evade whatever constitutional limits on gun control emerges from Second Amendment or Heller.  I am blogging so much about Hayes in part because I think it helps create a ready blueprint for such evasion.

Other recent posts on the Hayes decision:

February 25, 2009 in Second Amendment issues | Permalink | Comments (12) | TrackBack

Tuesday, February 24, 2009

One notable expression of concern about Hayes and gun rights

As of this writing, I have yet to see any public comments on the Hayes gun crime decision from the National Rifle Association or Second Amendment Foundation or on prominent legal blogs like Instapundit and The Volokh Conspiracy.  But I did come across this post at The Firearm Coalition, which provides this take on the import and impact of the Hayes ruling:

Today's Supreme Court decision means that anyone who has ever been convicted of any misdemeanor crime of violence — to include threats of violence, even if there was no possible way for the threat to be carried out and even if the punishment for the crime was only a $25 fine — is barred from ever possessing firearms or ammunition for the rest of their life if the victim of their crime was a person within the perpetrators household.  This leaves a large number of people at risk of committing unintentional felonies like Hayes did and it means that anyone with any record of battery or assault is likely to face drawn out delays whenever purchasing a firearm as NICS will have to determine the details of the case before approving the sale.

And of course — as with all gun control legislation — the objective and result of this law is not to keep guns away from dangerous criminals, but rather to make criminals of regular citizens and make gun ownership more cumbersome and problematic.  The passage of the Lautenburg Amendment cost thousands of police and military personnel their careers and often their pensions because they could no longer be in positions that required them to possess firearms, and it has ruined the lives of countless others who, like Randy Hayes, had no idea that they were not supposed to possess firearms and were caught up and prosecuted for being a "prohibited person" on possession of a gun.

Other posts on the Hayes decision:

February 24, 2009 in Second Amendment issues | Permalink | Comments (9) | TrackBack

Even the Chief and Justice Scalia are content to damn gun possession with faint praise

I have now read the Supreme Court's work in the Hayes gun possession case, and it confirms my sense that none of the Justices (even those who championed individual Second Amendment rights in Heller)have any interest in giving real force or even serious attention to the constitutional right to gun possession in the home.  Consider first this passage from the majority opinion in Hayes, authored by Justice Ginsburg and joined by Justices Alito and Kennedy:

Practical considerations strongly support our [broad interpretation of this federal criminal statute prohibiting gun possession by certain persons].  Existing felon-in-possession laws, Congress recognized, 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.” 142 Cong.Rec. 22985 (1996) (statement of Sen. Lautenberg).  By extending the federal firearm prohibition to persons convicted of “misdemeanor crime[s] of domestic violence,” proponents of §922(g)(9) sought to “close this dangerous loophole.” Id., at 22986.

Construing §922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress’ manifest purpose.  Firearms and domestic strife are a potentially deadly combination nationwide.  See, e.g., Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae 8–15....

I highlight here key sentences because they reveal the willingness of a majority of the Supreme Court, including two of the Justices in the majority in Heller, to embrace and endorse assertions by proponents of broad gun bans and by the Brady Center as to just when certain types of firearm possession are sufficiently "dangerous" and "potentially deadly" to obviate any apparent constitutional concerns with using federal criminal prohibitions to restrict broadly any gun possession in the home by certain persons.

Perhaps even more telling, however, are the punches pulled by even Chief Justice Roberts in his closing statements in his Hayes dissent (which was joined by the surprisingly silent Justice Scalia, author of Heller majority opinion):

It cannot fairly be said here that the [statutory] text [prohibiting prohibiting gun possession by certain persons] “clearly warrants” the counter-intuitive conclusion that a “crime of domestic violence” need not have domestic violence as an element.  That leaves the majority’s arguments about legislative history and statutory purpose.  This is not the “rare” case in which such grounds provide “fair warning,” especially given that there is nothing wrong with the conduct punished — possessing a firearm — if the prior misdemeanor is not covered by the statute.

If the rule of lenity means anything, it is that an individual should not go to jail for failing to conduct a 50-state survey or comb through obscure legislative history.  Ten years in jail is too much to hinge on the will-o’-the-wisp of statutory meaning pursued by the majority.

I highlight here a key phrase that sure seems to damn "possessing a firearm" with faint praise.  Note that the Chief says merely that "there is nothing wrong with the conduct" of possessing a firearm.  In the wake of Heller, it is telling that he does not say instead that "there is a provision of the Constitution that protects an individual right to engage in the conduct" of possessing a firearm in the home for self-protection.  Moreover, in light of Heller, wouldn't reference to the Second Amendment have been appropriate at the close of this dissent?  Why didn't the Chief (or Justice Scalia) add something like this:

If the Second Amendment and Heller means anything, it is that an individual should not forever lose his right to possess a gun just because he may have long ago pled guilty to a misdemeanor that the state now says makes him too dangerous to retain his constitutional right to personal self-defense in the home.  Ten years in jail is too much to threaten on the will-o’-the-wisp of potential misdemeanor prosecutions secured by states that might be eager to pursue back-door limits on who can exercise Second Amendment rights.

Especially in light of the disrespect Heller has been given in so many other criminal justice settings, I am not at all surprised with the outcome in Hayes.  I am troubled, however, that all the Justices seem content to hope that nobody will notice their gutting of Heller is the case is simply not mentioned.  And I will be further troubled if the gun rights community fails to take even their favorite Justices to task for trying to sweep these issues under the statutory interpretation rug.

Some related Second Amendment posts:

UPDATE:  I see Tony Mauro in this coverage of the Hayes ruling has this money quote from the folks at the Brady Center:

The Brady Center to Prevent Gun Violence applauded the decision. "In its first gun case since the landmark Hellerdecision, the Court wisely upheld this reasonable restriction, said center president Paul Helmke. "Today's ruling is the right one for victims of domestic abuse and to protect law enforcement officers who are our first responders to domestic violence incidents."

Similarly, this coverage of Hayes from The Hill has various anti-gun advocates commenting that this ruling shows Heller does not mean a hell of a lot:

Gun control advocates hailed the ruling as a good sign following the Court's decision in District of Columbia v. Heller, a 2008 decision that defined the Second Amendment as covering an individual's right to possess weapons.... "That's a good sign that Heller is the limited ruling we thought it was," said Daniel Vice, a senior attorney at the Brady Center to Prevent Gun Violence.

“Today, the Supreme Court sided with abused women and children and against the gun lobby,” said Sen. Frank Lautenberg (D-N.J.), a gun control advocate and the author of the original amendment. “Today's decision means we can continue keeping guns out of dangerous hands and saving innocent lives.”

Gun control advocates spun the decision as a blow to gun rights groups. The National Rifle Association and major gun rights backers in Congress did not immediately comment for this story.

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

SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment

As regular readers know, I have been watching the Hayescase involving a federal statute prohibiting gun possession by certain misdemeanants as a potential Second Amendment sleeper case.  And today the Supreme Court decided Hayes and kept the Second Amendment sleeping.  Indeed, I think we can and should read Hayes as an indication that the Justices are just fine with the Second Amendment sleeping with the fishes: not a single Justice even mentions Helleror the Second Amendment in the course of broadly interpreting a federal criminal statute that prohibits certain misdemeanants from ever possessing a gun.

Posts by Lyle Denniston here and here provide the basic story of Hayes, which will appear (and may be reported) to be just a technical little statutory interpretation case:

The Court has issued an opinion in United States v. Hayes(No. 07-608). The decision below, holding that a predicate offense under 18 USC 922(g)(9) must have as an element a domestic relationship between offender and victim, was reversed in a 7-2 opinion by Justice Ginsburg. Justice Thomas joined the majority only in part. The Chief Justice filed a dissenting opinion in which Justice Scalia joined. The opinion is available here...

[T]he Court expanded the reach of a 1996 federal law that bars possession of guns by a person convicted of a domestic violence crime that was a misdemeanor.  The law applies, the Court said, whenever the battered victim was in fact the wife or other family relative of the offender.  Thus, while such a domestic relationship must be proved beyond a reasonable doubt, it is not a necessary element of the crime, the decision found.  “It suffices for the government to charge and prove a prior conviction that was, in fact, an offense committed… against a spouse or other domestic victim,” the Court explained.

Once I have a chance to review the Hayes opinion closely, I will have a lot more to say about the opinion.  But my first reaction results from the fact that the Second Amendment and Hellerdo not even get mentioned by the dissenters, even though the majority's ruling would seem to provide a green light to jurisdictions looking for pretty easy ways to functionally work around the rights supposedly championed in Heller.

Because Hayestechnically involves the gun rights of "bad men" who have been convicted of certain misdemeanors rather than "good men" who never break the law, I suspect and fear that gun rights activists will try to brush this major loss under the rug.  But, as Justice Scalia stressed in his dissent yesterday, "bad men, like good men, are entitled" to have certain constitutional rights enforced on their behalf.  But, as Hayes reveals, if and whenever any government entity decides you are the wrong kind of of man, the Second Amendment and Heller become not merely diminished but entirely mute/moot.

Some related Second Amendment posts:

February 24, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Wednesday, February 18, 2009

Seventh Circuit gives short shrift to drug dealer's Heller claim

Though the result is not at all surprising, the Seventh Circuit's decision today discussing Heller is still notable for how (and how quickly) it disposes of a drug dealer's effort to claim that his home gun possession was constitutionally protected.  Here is the Heller discussion in the ruling (per Judge Easterbrook) in US v. Jackson, No. 07-3849 (7th Cir. Feb. 18, 2009) (available here):

The Court said in Heller that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection.  Jackson was distributing illegal drugs (cocaine and unlicensed dextromethorphan hydrobromide tablets) out of his home.  The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash.  Jackson says that he lived in a dangerous neighborhood and wanted to protect himself from burglars and other marauders.  That may be so, but his decision to operate an illegal home business also matters.  Suppose a federal statute said: “Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there.” Such a statute would be valid, as Jackson’s lawyer conceded. And if Congress may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns. The statements “if you have a gun, you can’t sell cocaine” and “if you sell cocaine, you can’t have a gun” are identical.

Some related Second Amendment posts:

UPDATE:  Eugene Volokh astutely discusses this Seventh Circuit opinion in this post.

February 18, 2009 in Second Amendment issues | Permalink | Comments (9) | TrackBack

Sunday, January 11, 2009

Assailing the unjustified Second Amendment limits in Heller

As Randy Barnett notes here, "Nelson Lund has just uploaded to SSRN a new and important criticism of Justice Scalia's opinion in DC v. Heller ... [which] considers the exceptions to this right identified by Justice Scalia in dicta."  The new piece, titled "The Second Amendment, Heller, and Originalist Jurisprudence," is available at his link.  Here is part of the abstract:

[Heller] was a near perfect opportunity for the Court to demonstrate that original meaning jurisprudence is not just "living constitutionalism for conservatives," and it would been perfectly feasible to provide that demonstration.  Instead, Justice Scalia's majority opinion makes a great show of being committed to the Constitution's original meaning, but fails to carry through on that commitment.

In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible originalist result.  But the Court's reasoning is at critical points so defective — and so transparently defective in some respects — that Heller should be seen as an embarrassment for those who joined the majority opinion.  I fear that it may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ.  Originalism deserved better from its judicial defenders.

One section of Professor Lund's paper focuses on the the unjustified dicta assertion in Heller that Second Amendment rights could be completely eliminated for any and all felons.  As regular readers know, I have been troubled by that aspect of the Heller ruling from the very outset.

Some related Second Amendment posts:

January 11, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Tuesday, January 06, 2009

"The New Second Amendment: A Bark Worse Than Its Right"

I just noticed this notable new commentary, with the same title of this post, by UCLA Law Prof Adam Winkler noting the consistent pattern of lower court rulings after Heller.  Here are snippets:

As many legal scholars predicted, the Supreme Court's [Heller] decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition.

The courts have upheld every one of these laws. Since Heller, its Gun Control: 60, Individual Right: 0.

I am very pleased someone else is noticing that lower courts so have have been consistently willing and eager to uphold any and every modern gun control law despite all the sturm und drang about the Heller ruling.  However, I remain disappointed that all the interest groups, politicians and academics so focused on Heller as it was making it was to the Supreme Court seem largely disinterested in seriously working through all of its important practical implications. 

As detailed here and here, well over 70 interest groups had the time, money and energy to file amicus briefs in an effort to influence the Supreme Court's work in Heller.  To my knowledge, few if any of these groups have invested one whit of time, money and energy toward helping a variety of federal defendants who now have a variety of really good arguments that their charges or sentences are now constitutional questionable after Heller.

Some related Second Amendment posts:

January 6, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

Friday, January 02, 2009

What might 2009 have in store for . . . Second Amendment jurisprudence?

Due to the Supreme Court's remarkable work in Heller (and all of the pre- and post-ruling buzz), one could call 2008 the most eventful year for the Second Amendment since its ratification.  Yet, as regular readers know, I fear that, even with the bold work by the Justices in Heller, the story of the modern Second Amendment now still remains a tale full of sound and fury, signifying nothing.  Indeed, because the post-Heller jurisprudential landscape will begin to take shape over the next few months, I consider 2009 a make-or-break year for the Second Amendment.

Intriguingly, the Supreme Court has a Second Amendment sleeper case in Hayes, which concerns a federal prohibition on gun possession by those convicted of a misdemeanor crime of domestic violence.  Though the oral argument in Hayes did not mention the Second Amendment, I am hopeful that the Court's opinion will at least make note of Heller.  Similarly, though lower courts are now relying heavily on Heller dicta to reject Second Amendment claims, I am hopeful that at least a few lower court judges will soon have the courage to seriously work through the implications of the constitutional principles stressed in Heller.

Meanwhile, the Second Amendment may have gotten an unexpected shot in the arm as a result of Plaxico Burress unexpectedly shooting himself in the leg.  Few people — save perhaps NYC Mayor Bloomberg and those who like to root against the New York Giants — seem eager to demand that Plaxico serve a mandatory 3½ years in prison just for carrying a gun in NYC for self-protection.  Plax's lawyers may come to see (perhaps with the help of the NRA and other gun rights activists) that the strongest legal argument for avoiding this mandatory prison term may be rooted in the Second Amendment.

Some recent related Second Amendment posts:

January 2, 2009 in Second Amendment issues | Permalink | Comments (5) | TrackBack

Wednesday, December 17, 2008

California court rejects Second Amendment attack on public firearm possession crime

A helpful reader sent me an e-mail altering me to a new decision dealing with a Heller-based Second Amendment claim in a Califorinia criminal case.  The ruling in People v. Yarbrough, No. A120721 (Cal. App. 1st Dist. Dec. 17, 2008) (available here) , starts this way:

Defendant was convicted following a jury trial of carrying a concealed firearm (Pen. ‎Code, § ‎‎12025, subd. (a)(2)), and carrying a loaded firearm in a public place (Pen. Code, ‎‎§ 12031, subd. ‎‎(a)(1)).‎ ‎ He was sentenced to the middle term of two years in state prison ‎for the conviction of ‎carrying a loaded firearm in a public place, and sentence on the ‎remaining conviction was stayed. ‎‎

In this appeal defendant claims that his conviction of possession of a concealed ‎weapon ‎violates the Second Amendment to the United States Constitution, and the trial ‎court gave ‎erroneous instructions in response to jury questions on the charge of carrying a ‎loaded firearm in ‎a public place.  He also challenges the trial court’s sentencing decision ‎to deny probation and ‎impose a state prison term.  We conclude that the conviction of ‎possession of a concealed ‎weapon does not contravene defendant’s Second Amendment ‎rights as interpreted in the United ‎States Supreme Court’s decision in District of ‎Columbia v. Heller (2008) ___ U.S. ___ [171 ‎L.Ed.2d 637, 128 S.Ct. 2783] (Heller), and ‎the court properly instructed the jury on carrying a ‎loaded firearm in a public place. We ‎also find that no prejudicial sentencing error occurred. We ‎therefore affirm the judgment.

I hope to get a chance to consume this opinion and comment on its particulars soon.

December 17, 2008 in Second Amendment issues | Permalink | Comments (2) | TrackBack

Wednesday, December 10, 2008

Are the modern Second Amendment and Fourth Amendment on a collision course?

Though not (yet) a true sentencing issue, my deep interest in post-Heller gun litigation and my concerns about individual liberty have me wondering if the modern Second Amendment and Fourth Amendment are on a collision course.  Or, to be more precise, this post yesterday from The Volokh Conspiracy and this post yesterday from SCOTUSblog have me thinking again that Heller has extraordinary potential to create so many new issues/headaches in unexpected settings.

The post from Eugene Volokh reports on a federal district court decision last week, Lund v. Salt Lake City Corp., 2008 U.S. Dist. LEXIS 98722 (D. Utah Dec. 4), in which a federal district judge cites Heller in support of the proposition that "mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution."  The post from Lyle Denniston at SCOTUSblog reports on yesterday's Supreme Court argument in which the state of Arizona and the federal government argued for — and got Justices supporting — the broad proposition that police who encounter someone in a public place should have the authority to frisk that individual any time they fear he may be “armed and dangerous,” even if they have no suspicion that any crime has been or is being committed.

Connecting these dots suggests the possibility that Heller may give me and all other citizens (save those with any criminal record?) a constitutional right to possess a gun in public, but the reasonable probability that some person may exercise this right in turn provides police with ready and perhaps unlimited authority to frisk any and everyone in public based on the (ever-present?) fear of an armed and dangerous individual.  Of course, police authority to frisk everyone in public may be limited by statute, but it seems that a number of Justices are prepared to assert it has virtually no limit in the Fourth Amendment.

These issues get extra tricky given that big-city mayors like Mike Bloomberg seem prepared and eager to say that anyone armed within a city is necessarily dangerous (especially if his gun is loaded).  Could the Mayor of DC (or any other city that might have a gun ban struck down after Heller) instruct police forces to frequently and repeatedly frisk any and everyone who might be armed in order to make sure that any possessed gun is unloaded and/or in good working so as not to be dangerous?

The deepest irony here is that those Justices who have embraced broad individual gun rights in Heller seem to be the same Justices untroubled by police having broad power to search individuals for guns.  Their view is, apparently, that legislatures are quite constitutionally limited in their power to restrict gun possession, but police are not very constitutionally limited in their power to search anyone who might be in possession of a gun.  These positions do not conflict as a matter of logic, but they make for a strange relationship between government power, gun possession and individual liberty.

December 10, 2008 in Second Amendment issues | Permalink | Comments (6) | TrackBack

Wednesday, December 03, 2008

Starting to make the Second Amendment case for Plaxico Buress

I am very pleased to discover gun rights guru David Kopel starting to make a Heller-based Second Amendment argument for Plaxico Burress in this Wall Street Journal opinion piece.  The piece is titled "Free Plaxico Burress: New York City's gun law is unconstitutional," and here are snippets:

New York Giants star receiver Plaxico Burress is facing a mandatory 3½ years in prison and the end of his football career. His crime? Not having a license, which New York City never would have issued him, for the exercise of his constitutional right to bear arms....

Mr. Burress's behavior was bad. However, Mr. Burress is not facing prosecution for carelessness, but simply for carrying a weapon. This is unjust and perhaps unconstitutional....

The Second Amendment might not require New Jersey or New York City to issue as liberally as Connecticut does. But with a population of several million and only a few thousand (consisting mainly of politicians, retired police and celebrities) able to get permits, New York City's licensing process is almost certainly unconstitutional on a number of grounds, including sheer arbitrariness.

Some commentators contend that Plaxico Burress should have hired bodyguards, instead of carrying a gun himself. Mr. Burress might now agree. But people who aren't as wealthy as he is also deserve to be safe, and they don't have the money for bodyguards. New York City needs to regularize its carry permit system so that law-abiding people can protect themselves, especially if their circumstances (such as being a witness to a gang crime) place them at heightened risk.

The Burress case also shows why mandatory sentences are a bad idea. He was careless but had no malign intent. Legislators and mayors like to appear tough by pushing through such draconian laws. Yet the victims are people like Mr. Burress whose conduct may have been improper, but who do not deserve the same sentences meted out to robbers and burglars.

Related posts on the Plaxico Burress case:

December 3, 2008 in Second Amendment issues | Permalink | Comments (3) | TrackBack

"Main Threat to Burress Is a Sentencing Law"

03weapon_600b Today's must-read is this terrific piece by Michael Schmidt in the New York Times that provides some of the back story on the mandatory minimum sentencing law that may make it very hard for Plaxico Burress to avoid jail time in the state pen for his (seemingly minor?) gun possession crime.  Here are snippets from a piece that all sentencing fans should read in full:

[P]erhaps more important than the question of whether Burress ever plays for the Giants again is the question of whether his future will include time in prison. [L]egislation ... signed into law in November 2006 by then-Governor George E. Pataki ... eliminated a provision that gave judges the option of not imposing jail time on people found guilty of illegally possessing a loaded firearm.

Instead, the three-and-a-half year minimum sentence was established. As a result, legal experts said Tuesday, Burress may have little wiggle room as he tries to avoid prison time. “Even if he pleads down, he can only plead down one count and he would still face a minimum of two years in prison,” said Robert C. Gottlieb, a New York-based criminal defense lawyer and a former prosecutor in the Manhattan district attorney’s office. “The other wiggle room is that he could try and prevent the district attorney’s office from charging him with this crime and charge him with a lesser crime.”

In fact, John M. Caher, a spokesman for the New York State Division of Criminal Justice Services, said that fewer than 10 percent of the people in New York City who were charged with criminal possession of a weapon — the charge Burress is facing — were convicted of that charge and that many ended up being convicted of a lesser charge.

However, Gottlieb noted that the public attention made it unlikely that prosecutors would accept a lesser charge. Another option, some experts said, would be for Burress to provide authorities with information that would lead them to prosecute others, although that seems unlikely considering the narrow circumstances of his case.

As [Burress's lawyer Benjamin] Brafman begins to plot his legal strategy, he cannot help but think back to that argument [he had with an NYC lawyer] nearly two years ago. “The point I made then, and I will continue to make, is that laws involving criminal justice that do not have exceptions for extraordinary circumstances are inappropriate in a democracy where we pride ourselves on fair play,” Brafman said in a telephone interview Tuesday.... 

On Monday, Bloomberg drew attention to the issue when he sharply criticized Burress and said that the authorities should prosecute him to the fullest extent of the law.  Brafman said that Bloomberg’s comments damaged Burress’s legal standing.  “When you have the mayor of New York demanding the maximum sentence in a case which has just begun and nobody has been convicted, it certainly doesn’t help,” Brafman said. “Mr. Bloomberg may have cost my client his job and cost him an ability to get a fair trial.” 

This article confirms some of what I expressed in my first post on the Burress case  — namely that Mayor Bloomberg's comments on Monday may ensure that Plaxico may soon become a poster-child and a great test case for groups like Families Against Mandatory Minimums that have long argued about the unfairness of mandatory minimum sentencing terms (especially for first offenders).

The only important point missing from the NYTimes article (and from Brafman early efforts to develop pro-Burress public sentiments) is the Heller Second Amendment issue I often champion.  As I noted in my prior post, if the Second Amendment is applied to the states after Heller (which seems very likely) and if Burress says he carries a gun for personal self-defense (which seems very plausible), anyone with a serious commitment to the right of persons to possess a gun for self-defense (like those at the NRA) should be very troubled by the notion that Burress is facing years in prison for merely possessing a gun.

December 3, 2008 in Celebrity sentencings, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Monday, December 01, 2008

NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions

Thanks to the apparent foolishness of a prominent NFL player, the folks at Families Against Mandatory Minimums and at the National Rifle Association might have a new high-profile poster-child for their very different public policy causes.  I am referencing, of course, the case involving New York Giants wide-receiver Plaxico Burress, whose major criminal law problems are well summarized in these snippets of this New York Times article (emphasis added):

Giants receiver Plaxico Burress was arraigned Monday in a Manhattan criminal court, charged with two separate counts of criminal possession of a handgun in the second degree after accidentally shooting himself in the thigh three days ago at a Midtown nightclub.

He faces a mandatory sentence of 3½ years in state prison, with a maximum of 15 years, on each count....

After a long day — during which Burress spent about five hours at the New York City Police Department’s 17th Precinct station house, where he likely posed for mug shots, was fingerprinted and sat for interviews with detectives — details of the shooting became clearer.

The police said that Burress arrived at the Latin Quarter nightclub in Manhattan on Friday at 11:30 p.m. with four others, including teammates linebacker Antonio Pierce and Derrick Ward. The other two members of their party were not football players, according to police. At 12:05 a.m., a single gunshot is heard.

The criminal complaint, released by prosecutors Monday, said that an onlooker saw Burress near the V.I.P. area of the club holding a drink in his left hand and fidgeting his right hand in the area of the waistline of his pants. The witness then heard a single “pop” sound before hearing Burress say, “Take me to the hospital.”

Burress was on the ground, with his legs shaking, when a bloody gun — a .40-caliber Glock pistol — fell out of his pant leg and onto the floor, the onlooker said.  Later, Burress, who does not have a permit to carry a handgun in New York City, was treated and released at a hospital before returning to his home in Totowa, N.J.

On Monday, Mayor Michael R. Bloomberg harshly criticized Burress for carrying an illegal handgun; New York Presbyterian Hospital for failing to call the police of his gun-related injury, as city law requires; and the New York Giants, which also neglected to notify the authorities.

“Our children are getting killed with guns in the streets.  Our police officers are getting killed with guns in the hands of criminals, and because of that, we got the State Legislature to pass a law that if you carry a loaded handgun, you get automatically 3½ years in the slammer,” Bloomberg said, speaking to reporters....  “I don’t think that anybody should be exempt from that, and I think it would be an outrage if we didn’t prosecute to the fullest extent of the law, particularly people who live in the public domain, make their living because of their visibility; they are the role models for our kids.”

Bloomberg said that the police did not find out about the incident until it was reported on TV, and that the Giants should have immediately notified the authorities of the shooting.  He said the team had a responsibility to do so if their players want to be role models to the public....

Bloomberg also criticized the hospital for failing to call the police. “I think also it is just outrage that the hospital didn’t do what they’re legally required to do,” he said. “It’s a misdemeanor, it’s a chargeable offense and I think that the district attorney should certainly go after the management of this hospital.”

Wow!  Though I do not teach my upper-level sentencing course until next semester, this high-profile case, with its many notable participants and many possible legal issues, sounds like a problem I might give on my final exam.  Consider these questions right off the bat:

1.  In light of the apparently undisputed facts, is there any legally justifiable way for NY state prosecutors to avoid seeking to convict Burress of the state crime which carries a mandatory minimum sentence of 3½ years in state prison?

2.  Can and should Burress and his legal team raise a Heller Second Amendment right of self-defense claim in response to his criminal charges?  Assuming the Second Amendment gets applied to the states (which seems very likely) and assuming Burress says he carries his gun for personal self-defense (which seems very plausible), anyone who talks seriously about a fundamental right of self-defense (like those at the NRA) ought to be looking to give Burress some help in this case.

3.  Is Mayor Bloomberg already making it easier for Burress and his legal team (A) to argue he cannot get a fair trial in NYC, and/or (B) to suggest to the jury (directly or indirectly) that it should consider nullification in this case simply to avoid forcing Burress to go to state prison for 3½ years?

4.  Can and should Burress and his legal team raise a head-on due process (or cruel and unusual punishment) constitutional challenge to the statutory mandatory minimum sentence in this case?  In light of President-Elect Obama's stated expression of concerns about mandatory minimum sentencing statutes and the Supreme Court's ever-evolving sentencing jurisprudence, the time might be ripe for lawyers at FAMM and other public policy groups to start making a full-scale legal attack on the very constitutionality of mandatory minimum sentencing provisions.  Perhaps this line of constitutional argument just got a prominent celebrity spokesman.

December 1, 2008 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues | Permalink | Comments (20) | TrackBack

Sunday, November 30, 2008

When the pardon power meets the Second Amendment

I helpful reader pointed me to this great Wall Street Journal article comblining two of my favorite legal topics these days: the clemency power and gun rights. The article is headlined "Seeking a Presidential Pardon? Try Praising the Right to Bear Arms -- Five Forgiven by Bush Share a Trait: They Really Missed Their Weapons," and here are excrpts:

On the surface, the list of the 14 people pardoned by the president this week shows few common denominators in terms of time served, geographic location or even type of crime, except that the felonies were non-violent.  But a closer look at some of the newly pardoned shows many of them are church-going, blue-collar workers from rural areas (and ardent Bush supporters) who had little trouble finding jobs after their convictions. There is another common thread: the important role firearms once played in their lives.

President Bush has pardoned fewer people -- 171 -- than any president since World War II, with the exception of his father, who pardoned 74.  Presidents don't discuss their reasons for issuing pardons, with few exceptions.  Nor do they tell petitioners why their wish was granted. The Justice Department's "pardon attorney," who reviews hundreds of petitions a year and recommends candidates to the president, had no comment.

Coincidentally or not, at least seven of the 14 pardoned on Monday are former hunters or shooting enthusiasts.  In interviews, five of them said they wrote in their petitions to the government that a desire to win back the right to bear arms was a chief reason for wanting a pardon....

Convicted felons lose a host of civil rights, including the right to vote, seek political office or bear arms.  A presidential pardon forgives federal crimes and restores basic rights.

Many felons can win back some rights from their states after they complete their punishment.  But the right to possess guns can be restored only by the president, says Margaret Love, a former pardon attorney under the first President Bush and the first term of President Clinton, who pardoned 396, mostly during his second term.

As regular readers know, I consider federal laws making it a serious crime for a non-violent felon to ever posses a gun to be constitutionally suspect in the wake of the Supreme Court's Heller ruling.  Though I am still waiting (impatiently) for lower courts to acknowledge the Second Amendment questions that now surround these broad federal firearm restrictions on gun possession, I am glad to see that President Bush seems willing to use his clemency power to attend to these matters.

Some recent related posts:

November 30, 2008 in Clemency and Pardons, Second Amendment issues | Permalink | Comments (2) | TrackBack

Monday, November 24, 2008

What if no lower court judges participate in a "Second Amendment Revolution"

Thanks to How Appealing, I saw this article in the latest issue of the Harvard Law Record headlined "Profs: District of Columbia v. Heller is a 'Second Amendment Revolution.'"  Here is how the piece begins:

Calling the Supreme Court's decision in District of Columbia v. Heller a "Second Amendment revolution," Profession Cass Sunstein '78 declared in a panel discussion about the landmark Supreme Court decision on Tuesday, November 18.  Sunstein was joined by fellow HLS Professor Lani Guinier and Yale Law School Professors Akhil Amar and Reva Siegel. The panel was sponsored by the Harvard Law Review, whose November 2008 issue focuses on Heller, which struck down the District of Columbia's ban on handguns.  Sunstein stated, "For better or for worse, there has been a sea change with respect to the right to bear arms comparable to civil rights, sex discrimination, and gay rights."

With all due respect, Professor Sunstein, I blogged through a Sixth Amendment revolution with Blakely; I knew Blakely was revolutionary because lower courts started striking down all sorts of federal and state laws based on Blakely; this constitutional sentencing revolution had been a friend of mine. Professor, Heller is no Second Amendment revolution.

Pardon the weak effort to paraphrase Senator Lloyd Bentsen's famous debate line, but I continue to be annoyed and aggravated by all the aggrandizement of Heller and its so-far-inconsequential Second Amendment holding.  As I have suggested in prior posts, I will only believe Heller is important and revolutionary if/when lower court judges start striking down or limiting the reach of broad federal and state gun laws and restrictions based on its Second Amendment ruling.  Until then, I do not think many serious practicing lawyers should put much stock in lots of law professors opining about how significant the Heller decision is.

Some related posts on the Heller's (lack of) importance:

UPDATE:  Not minutes after finishing this post I noticed that Eugene Volokh has posted here on another lower court ruling that basically declares that Heller provides no impediment to federal efforts to prohibit and criminally punish any sort of gun possession by anyone addicted to any controlled substance.  How revolutionary!

November 24, 2008 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Thursday, November 20, 2008

The legal backstory of Heller

Over at Reason online, one can now find this lengthy article telling the backstory of the case that resulting the the Heller ruling.  The article is titled "How the Second Amendment Was Restored: The inside story of how a gang of libertarian lawyers made constitutional history."  Ultimately, I share Ilya Somin's view that this article overstates the ultimate importance and significance of Heller.  But this article is still a must-read as a piece of modern legal history, and also for a useful set of lessons for anyone seriously committed to impact-oriented constitutional litigation.

Some related posts on the Heller's (lack of) importance:

November 20, 2008 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Tuesday, November 11, 2008

Media coverage of Hayes oral argument is not gun shy

I complained in this post yesterday that the Second Amendment got absolutely no love or attention from the Supreme Court when it heard oral argument in the Hayes case.  Specifically, neither the Second Amendment nor the decision in Heller was even mentioned once during the Hayes oral argument.  For this reason and others, I was quite intrigued to discover this kind of coverage of the Hayes oral argument today in the Los Angeles Times.  Note this heading and subheading for the report on Hayes

Domestic violence abusers could get gun rights -- The Supreme Court will decide whether people convicted of misdemeanor assault against their spouses or partners should have their 2nd Amendment rights restored because of a flaw in federal law.

Consider also the story's lead and these additional snippets:

Thousands convicted of a misdemeanor for threatening or assaulting a spouse or girlfriend could once again own guns because of a flaw in the federal law.  That prospect grew more likely Monday after the Supreme Court gave a skeptical hearing to a government lawyer who argued that a crime of domestic violence should result in a loss of gun rights....

But during Monday's argument, Scalia said possessing a gun was "lawful conduct," and a wife-beating charge lodged against a West Virginia man was "not that serious an offense."...

The Brady Center to Prevent Gun Violence said a ruling for Hayes "could re-arm thousands of convicted domestic violence abusers."  About 14% "of all police officer deaths occur during a response to domestic violence calls," the group said.  On the other side, the Second Amendment Foundation said the "fundamental right" to own a gun should not be taken away over a misdemeanor.

This kind of media coverage reassures me that Hayes is a Second Amendment sleeper case even if the Justice may be eager to let a sleeping Heller dog lie.

Some recent related Second Amendment posts:

November 11, 2008 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Monday, November 10, 2008

Is anyone (other than me) discussing the apparent insignificance of Heller?

I noticed over at The Volokh Conspiracy reports on a lecture and a symposium focused on the Heller Second Amendment case.  It seems that both events take as a given that Heller is an important decision.  But activity today at the Supreme Court has me wonderign again if the Heller decision means anything consequential at all. 

As previously noted here, the Justices heard oral argument today in US v. Hayes, which concerns the interpretation and reach of a federal gun law — 18 U.S.C. § 922(g)(9) — which criminalizes any and all gun possession by anyone previous convicted of the wrong kind of misdemeanor.  If Heller really articulated and safeguarded some kind of meaningful constitutional right under the Second Amendment, at least some of the argument in Hayes should have been about the scope of constitutional gun rights and/or whether the doctrine of constitutional doubt should limit the application of the gun possession crime set forth in § 922(g)(9).  However, a quick scan of the oral argument transcript in Hayes reveals that neither Heller nor the Second Amendment was mentioned at all.

As regular readers also know from this recent post, we have not yet seen one single lower federal court ruling that gives any meaning or force to the Second Amendment rights purportedly championed in Heller.  Indeed, in light of the failure of the Justices today and lower courts to even consider the import or impact of the Second Amendment in various settings, I am inclined to ask a legal variation on a classic philosophical riddle: "If a constitutional right falls in the courts and no judge pays it any attention, does the right make any difference?"

Some recent related Second Amendment posts:

November 10, 2008 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Sunday, November 09, 2008

Monday madness at SCOTUS: ACCA, confrontation and a Second Amendment sleeper

As detailed in this helpful SCOTUSblog post (which includes links to more materials), the Supreme Court on Monday has its biggest criminal justice argument day since ... I don't know when.  Here are the particulars:

On Monday, the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in:

  • Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act.
  • United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.”
  • Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution.

Because the Confrontation Clause case is the only one which directly raises a constitutional issue, I suspect it will get most of the media and academic attention.  But Chambers is a case which should be of great interest to federal sentencing practitioners, and Hayes is arguably the biggest sleeper case of the term because of a set of Second Amendment issues lurking deep inside a seemingly minor statutory interpretation case.

As detailed in this post, I have had my eye on Hayes as a potentially important Second Amendment case even since cert was granted back in March.  Of course, the subsequent Heller ruling finding an individual right to firearms in the home for self-protection added to the potential importance of Hayes

Interestingly, the merits and amicus briefs submitted in Hayes mostly dodge the Second Amendment, but that does not mean that the Justices will not bring up Heller-related issues during oral argument.  In other words, I am already looking forward to reading the Hayes oral argument transcript. 

Some recent related Second Amendment posts:

November 9, 2008 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Tuesday, October 21, 2008

Attacking the felon exception in Heller's articulation of Second Amendment rights

Adam Liptak in the New York Times has this great article on one of my favorite modern constitutional topics, the Second Amendment and the Supreme Court's work in Heller. The piece is headlined "Ruling on Guns Elicits Rebuke From the Right," and I especially like how it starts and ends:

Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault — from the right.

Two prominent federal appeals court judges say that Justice Antonin Scalia's majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law....

In his article, Judge Wilkinson wrote ... that the Roe and Heller cases shared a number of common flaws, including “a failure to respect legislative judgments,” “a rejection of the principles of federalism” and “a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.”

Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”

Mr. Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”

It is too soon to say much about the legacy of Heller. But Judge Wilkinson said that Heller, at a minimum, represented “the worst of missed opportunities — the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.” At worst, he warned, “There is now a real risk that the Second Amendment will damage conservative judicial philosophy” as much as Roe “damaged its liberal counterpart.”

Some related posts (written both before and after the Supreme Court's opinion in Heller)::

October 21, 2008 in Second Amendment issues | Permalink | Comments (2) | TrackBack

Wednesday, October 08, 2008

Has there been a single pro-gun-rights rulings in lower courts since Heller?

Today I came across promotions for two new books that both appear to be celebrating the Supreme Court's Second Amendment ruling in Heller: The Heller Case: Gun Rights Affirmed and Gun Control on Trial: Inside the Supreme Court Battle Over the Second AmendmentI then recalled this post yesterday from Eugene Volokh reporting on yet another lower court opinion rejecting an effort by an individual to assert gun rights based on Heller.  Putting all this together, I am wondering if I am the only one that has noticed and been seriously troubled by the fact that there apparently has not yet been a single notable lower court ruling that protects gun rights in the wake of Heller.

As the title of this post suggests, it is possible that I have missed a pro-gun-rights Second Amendment ruling from a lower court in the four months since Heller came down.  But all the lower court cases I have see have rejected Heller-based claims.  Before I buy any books celebrating the supposedly landmark ruling in Heller, I would like to see some evidence that the case will have a real impact for litigants other than just for the plaintiffs in that one case.

Of course, Heller might affect legislative activities in various ways; I do not mean to assert or suggest that Heller's impact is only to be measured by lower court victories for individuals seeking to assert gun rights based on Heller.  But, to date, I have not seen reason to be seriously hopeful that there will be any significant lower court victories for gun-right advocates based on Heller.

October 8, 2008 in Second Amendment issues | Permalink | Comments (14) | TrackBack

Monday, October 06, 2008

Still more proof that federal courts have no real interest in gun rights

350pxnorinco_sksI am not especially surprised that the Second Amendment ruling in Heller has not changed the extreme sentences being handed out for federal gun possession crimes in federal courts.  And yet I cannot help but note some of the disturbing cases that still get summary treatment despite Heller's supposedly strong embrace of an individual's right to keep and bear arms.

Specifically, consider the unpublished per curiam opinion today from an Eighth Circuit panel in US v. Smith, No. 08-2043 (8th Cir. Oct. 6, 2008) (available here).  Though the details are sketchy from the opinion, it appears that the defendant was acquitted of various gun possession charges at trial, but still was convicted of one count of being a felon-in-possession of a firearm.  (The firearm in question is a popular hunting rifle, the Norinco SKS pictured above.  Notably, the Smith opinion gets the name of the rifle wrong, calling it a Norico SKS.)

For the crime of possession a popular hunting rifle, the defendant in Smith gets a sentence of more than eight years in federal prison.  Of course, Mr. Smith is surely a bad dude, since we know he has a felony record, and that must have been a long record in order to have resulted in an applicable guideline sentencing range of 100 to 125 months.  Still, according to Smith opinion, the defendant did have some mitigating circumstances going for him.  Moreover, as I keep wanting to believe, if there really is a serious commitment to Second Amendment rights, there should be some constitutional concerns about sending someone to prison for nearly a decade simply for possessing a hunting rifle.  But apparently not, since the Eighth Circuit panel summarily affirms the defendant's sentence in Smith.

Some related posts (written both before and after the Supreme Court's opinion in Heller)::

October 6, 2008 in Second Amendment issues | Permalink | Comments (4) | TrackBack

Saturday, September 27, 2008

Heller and the Second Amendment stir up controversy

The AP has this new piece noting that some notable judicial conservatives are assailing Justice Scalia's activism in the Heller Second Amendment case.  Here are snippets from the article:

The judges, J. Harvie Wilkinson of the 4th U.S. Circuit Court of Appeals in Richmond, Va., and Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, take Scalia to task for engaging in the same sort of judicial activism he regularly disdains....

Wilkinson said elected officials are in a better position to determine gun laws than the courts. He compared the gun case to Roe v. Wade, the abortion rights decision that conservatives consider among the court's worst....

Posner, writing in The New Republic last month, said of Scalia's work in Heller: "The decision ... is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology."

Though I do not think too much of the label "judicial activist," it does seem to be a reasonable description of Justice Scalia's work in Heller.  But this is one reason why I like the Heller outcome.  As Damon Root rightly asserts in this essay at Reason, "the courts have been at their historic best when rejecting the will of the majority and acting in defense of individual rights."

September 27, 2008 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Thursday, September 18, 2008

Proof of aphorism "no good deed goes unpunished"?

Here is another notable example of how gun laws prohibiting felons from possessing guns can lead to strange developments in the federal criminal justice system.  This local story, headined "Felon aided woman but kept gun and gets jail: Man not faulted for stopping suicide, but keeping weapon," starts and ends this way:

A man who stopped a woman from harming herself with a handgun was sentenced to 12 months in prison this week by a federal judge.  Bryant K. Ervin ended up with prison time not because he stopped a potential suicide, but because he was a convicted felon and was barred from possessing a firearm.

In court, Assistant U.S. Attorney Shawn Weede said the government was seeking jail time because Ervin kept the weapon for more than a week afterward, not because of the way he came to possess the silver handgun.

Federal sentencing guidelines called for a prison term between two and three years. Weede recommended a sentence of 15 months, or about half the guideline range, because of the circumstances.  Ervin's defense attorney, Kier Bradford-Grey, asked District Judge Sue L. Robinson to give him a sentence of time served, or about seven months....

U.S. Attorney Colm F. Connolly said the message from this case is, "Felons and guns don't mix and we have a zero tolerance level for convicted felons possessing weapons." However, he said if his office encountered "an extreme case where a felon did take possession of a gun to save the life of another individual, and that person called police immediately [to turn in the gun,] we wouldn't prosecute that person."  In this case, Connolly noted, the defendant kept the gun for more than a week by his own admission. "And that is a crime."

September 18, 2008 in Second Amendment issues | Permalink | Comments (5) | TrackBack

Tuesday, September 16, 2008

Is Heller like Griswold or like Roe or like ...?

As I have been blogging since the Heller decision came down, it is going to take a long time and lots of litigation to unpack just what this Supreme Court decision means for the scope and application of individual Second Amendment rights.  Helpfully, some smart folks have some new articles on SSRN helping us with any Heller headaches by suggesting that Heller is really like some earlier landmark Supreme Court rulings.

Professor Cass Sunstein, for example, suggests Heller is like Griswold v. Connecticut in this new paper, titled "Second Amendment Minimalism: Heller as Griswold."  Judge J. Harvie Wilkinson III, in contrast, suggests Heller is like Roe v. Wade in this new paper, titled "Of Guns, Abortions, and the Unraveling Rule of Law." 

Though I have not given the matter much thought in these terms, my gut reaction would be to compare Heller to First Amendment rulings rather than to substantive due process rulings because there is an express constitutional provision at the heart of the constitutional debate.  But I must note a bias here because, as detailed here, I am part of a legal team making arguments on behalf of Weldon Angelos in his 2255 action in which we assert that Heller indicates that the Supreme Court's jurisprudence surrounding the application of the First Amendment can and should inform questions surrounding the application of the Second Amendment.

September 16, 2008 in Second Amendment issues | Permalink | Comments (2) | TrackBack

Monday, September 15, 2008

An argument that the Second Amendment and Heller should help Weldon Angelos

Regular readers should recall the name Weldon Angelos; Angelos was subject to federal mandatory sentencing terms of 55 years because of gun possession linked to three small hand-to-hand marijuana sales in a public parking lot.  Regular readers may also recall from this post that, upon the request of Weldon's sister, a pro bono legal team (of which I am a part) filed a lengthy 2255 motion in December 2007 making an array of constitutional arguments on Angelos's behalf.  (The original motion is available at this link, and the government is scheduled to file its response in the near future.)

Today marks another chapter in this legal story because this same legal team has just filed a motion for partial summary judgment based in large part on the Second Amendment as it is now understand after Heller.  The 20-page memorandum filed in support of this motion is available for download below.  As I have indicated before, because I am essentially counsel of record, I do not plan to discuss or debate the merits of the motion on this blog.  However, I am hopeful that everyone interested in the meaning and reach of Heller and the Second Amendment will take the time to read and reflect upon the arguments we make in this motion.  Here is how we introduce these arguments from the memorandum:

Though the government may eventually dispute some facts set forth in the 2255 motion, there is no dispute that Angelos had no adult criminal record prior to the instant case and that he was subject to 55 years of mandatory federal imprisonment based principally on allegations of possession of firearms in his home, in his car, and on his person.  Specifically, the firearms providing the basis for one 25-year mandatory sentencing term were those present within Angelos’s home.  And though there is a dispute concerning whether Angelos possessed a firearm during the marijuana sales engineered by the government’s informant, there is no evidence whatsoever or even any serious allegation that Angelos actively utilized firearms to facilitate three uneventful hand-to-hand marijuana sales. Nevertheless, on the basis of (suspect and perhaps incredible) testimony of a single government informant, who belatedly asserted that Angelos possessed a firearm during two marijuana sales, the district court felt obliged under statutory sentencing provisions to impose another 30 years of federal imprisonment.

In light of the Supreme Court’s broad and forceful recognition of the right of all citizens under the Second Amendment to possess firearms to effectuate “the inherent right of self-defense,” District of Columbia v. Heller, 128 S. Ct 2783, 2817 (2008), the extreme sentence imposed upon Angelos for gun possession are now clearly unconstitutional and his 55-year sentence must be at least partially vacated. As explained more fully below, the Supreme Court’s landmark Heller ruling as applied to the unique facts of this case render unconstitutional (1) the Government’s pursuit of a superseding indictment threatening a 25-year mandatory prison sentence based on the presence of guns within the Angelos home, and (2) the imposition of 55 years of federal imprisonment Angelos is now serving based on his gun possession.

In addition, the Heller ruling, considered together with the Supreme Court’s most recent explication of Eighth Amendment jurisprudence and its application in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), confirms that the 55-year federal prison term that Angelos is serving based on the possession of firearms is constitutionally excessive. Indeed, the combined force of the Heller and Kennedy rulings, along with the notable and constitutionally significant public reactions to both decisions, make plain that the sentence Angelos is now serving violates “the evolving standards of decency that mark the progress of a maturing society.”  Id. at 2664 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

Download angelos_v. U.S. - Memo re MSJ.pdf

A few related posts on the legal history of the Angelos case:

September 15, 2008 in Second Amendment issues | Permalink | Comments (5) | TrackBack