Saturday, September 18, 2010

Can dismissed domestic violence complaint justify revoking gun permit?

This local story from Massachusetts provides an interesting spin on both "sentencing" based on dismissed charges and the Second Amendment rights of those accused of violent behavior.  The piece is headlined "Man challenges state gun law: Constitutionality of 2005 permit revocation questioned," and here are the details:

Citing a recent U.S. Supreme Court decision, a Shrewsbury man is challenging the constitutionality of a state law under which his license to carry a firearm was revoked five years ago by Police Chief Gary J. Gemme.  Lawyer Mel L. Greenberg, who represents Raymond J. Holden, filed an amended petition in Central District Court Sept. 10 appealing Chief Gemme’s 2005 revocation of Mr. Holden’s firearms license based on a determination that Mr. Holden was not a “suitable person” to carry a gun.

In a memorandum of law accompanying his amended petition, Mr. Greenberg said the term “suitable person,” as it appears in the law, is unconstitutionally vague given the Supreme Court’s June 28 ruling in the case of McDonald v. Chicago.  The nation’s highest court ruled in a 5-4 decision in that case that the Second Amendment grants citizens a fundamental right to bear arms that cannot be infringed upon by state and local governments.

Mr. Holden, who has a place of business in Worcester, had been granted a license to carry a firearm in 2001, but the license was suspended by Chief Gemme on Sept. 14, 2005, four days after Mr. Holden was arraigned in Westboro District Court for an alleged assault on his wife. The assault and battery complaint was dismissed Oct. 3, 2005, after Mr. Holden’s wife recanted a statement in a Shrewsbury Police Department incident report.

Judge Dennis J. Brennan, since retired, then ordered the reinstatement of Mr. Holden’s license in light of the dismissal of the assault charge. Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed....

“The McDonald ruling adds the Second Amendment right to bear arms to the list of fundamental rights guaranteed to all citizens.  Consequently, any state statute or regulation which restricts or regulates such a right is subject to the strictest judicial scrutiny to insure that it reasonably regulates without infringement of that right and that its application does not result in a denial of due process rights,” Mr. Greenberg wrote.

Vague laws violate due process “because citizens do not receive fair notice of the conduct proscribed by the statute and because they do not limit the exercise of discretion by officials, creating the possibility of arbitrary and discriminatory enforcement,” the lawyer said in his memorandum.

As regular readers know, the Supreme Court and lower courts have repeatedly upheld the constitutionality of enhancing an offender's criminal sentence based on acquitted and dismissed conduct.  But, of course, in those cases the offender has been duly found guilty of some other offense. 

Here, Mr. Holden has not been convicted of anything at all.  But, of course, he also is not being sentenced, just having his gun permit revoked.  And if Police Chief Gary Gemme has a sound basis for concluding that Mr. Holden did in fact beat his wife, his permit revocation decision would seem to accord with Congress's basic view (which finds expression in federal criminal law) that a person who commits even a minor form of domestic violence should never be allowed to possess a firearm under any circumstances.

September 18, 2010 in Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, September 08, 2010

Eighth Circuit (gleefully?) rejects Second Amendment challenge to § 922(g)(3)

The Eighth Circuit today in US v. Seay, No. 09-2778 (8th Cir. Sept. 8, 2010) (available here), rejects yet again a federal defendant's effort extend the reach of the Supreme Court's Second Amendment work in Heller.  That fact alone is not especially notable, but I could not help but notice that the panel seems almost gleeful to reject a Second Amendment claim.  The Seay opinion works hard to dodge an appeal waiver in order to address the Second Amendment merits, and then it has this to say (with lots and lots of cites omitted):

Following Heller, many defendants have argued that 18 U.S.C. § 922(g), or some subsection thereof, violates the Second Amendment. To date, none have succeeded.  For example, we have upheld the constitutionality of § 922(g)(1) (felon in possession).  Our sister circuits have upheld the constitutionality of § 922(g)(1), as well as § 922(g)(4) (persons committed to mental institutions or adjudicated as a mental defective) and § 922(g)(9) (persons convicted of a domestic-violence misdemeanor)....

Turning to the subsection at issue here, § 922(g)(3) makes it unlawful for anyone “who is an unlawful user of or addicted to any controlled substance” to possess a firearm....  Following Heller, one circuit and several district courts have upheld § 922(g)(3) against Second Amendment attack....

Nothing in Seay’s argument convinces us that we should depart company from every other court to examine § 922(g)(3) following Heller.  Further, § 922(g)(3) has the same historical pedigree as other portions of § 922(g) which are repeatedly upheld by numerous courts since Heller.  See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213.  Moreover, in passing § 922(g)(3), Congress expressed its intention to “keep firearms out of the possession of drug abusers, a dangerous class of individuals.”  United States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010), pet. for cert. filed, 78 U.S.L.W. 3731 (U.S. June 1, 2010) (No. 09-1470).  As such, we find that § 922(g)(3) is the type of “longstanding prohibition[] on the possession of firearms” that Heller declared presumptively lawful.  See128 S. Ct. at 2816-17.  Accordingly, we reject Seay’s facial challenge to § 922(g)(1).

September 8, 2010 in Second Amendment issues | Permalink | Comments (11) | TrackBack

Friday, September 03, 2010

Seventh Circuit rejects Second Amendment arguments against § 922(g)(3)

Today through its decision in US v. Yancey, No. 09-1138 (7th Cir. Sept. 3, 2010) (available here), a Seventh Circuit panel provides yet another example of the disinclination of lower courts to extend the reach or applicability of the Supreme Court's Second Amendment work in Heller. Here is the start and end of the per curiam Yancey opinion:

Matthew Yancey pleaded guilty to possessing a firearm as an unlawful user of marijuana but reserved the right to argue on appeal that the offense of conviction, 18 U.S.C. § 922(g)(3), violates the Second Amendment as interpreted in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).  We conclude that the statute is constitutional and affirm Yancey’s conviction....

In sum, we find that Congress acted within constitutional bounds by prohibiting illegal drug users from firearm possession because it is substantially related to the important governmental interest in preventing violent crime.

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

Wednesday, August 25, 2010

Another notable Second Amendment claim rebuffed by another federal judge

As detailed in this local report, which is headlined "Federal judge orders BB-gun toting woman to serve sentence," the now-familiar pattern of lower federal courts refusing to give broad application to the Supreme Court's recognizition of individual Second Amendment rights is continuing.  Here are the specifics this time around:

A federal judge Tuesday refused to delay a jail sentence any longer for a Santa Cruz Mountains woman who has been fighting to overturn her misdemeanor gun-brandishing conviction with an argument that her Second Amendment rights have been violated.

In a nine-page order, U.S. District Judge Phyllis Hamilton found that Stanford-educated medical doctor Barbara Saldinger is unlikely to prevail in her legal battle and that she should begin serving her 60-day jail sentence immediately....

A Santa Cruz jury convicted Saldinger more than four years ago of brandishing a weapon after she was arrested during a dispute with neighbors in which she displayed a BB gun as she chased them away from her horse farm.  Saldinger and her husband had been feuding with the neighbors for months over the location of the boundary between their two properties.

In appealing her case in the state and federal courts, Saldinger's lawyers maintain that her conviction should be overturned because her conduct is covered by a constitutional right to bear arms to protect property.  Among other things, Saldinger's appeal argues that recent U.S. Supreme Court rulings extending the Second Amendment to state and local regulations entitles her to a new trial.

Hamilton did not rule on Saldinger's federal claims, but did reject her bid to stay the sentence until her case is fully resolved.  The judge called her Second Amendment argument "misplaced," and indicated she does not believe, based on the facts of the case, that Saldinger's appeals will succeed.

Dennis Riordan, Saldinger's high-profile defense lawyer, said the appeal will continue.  Even if she serves her sentence, Saldinger has vowed to try to clear her name....

Deputy Attorney General Gregory Ott, who represented the state, said Hamilton's assessment of Saldinger's chance of prevailing is correct. "The Second Amendment was being thrown out there to make a merits claim," he said. "The Second Amendment doesn't have any application to brandishing."

August 25, 2010 in Second Amendment issues | Permalink | Comments (12) | TrackBack

Thursday, August 05, 2010

Seventh Circuit rejects as-applied Second Amendment challenge to § 922(g)(1), but suggests a non-violent felon might prevail

The Seventh Circuit handed down today another intriguing Second Amendment opinion in which it finds unavailing an as-applied challenge to 18 U.S.C. § 922(g)(1), the federal felon-in-possession criminal prohibition.  There are lots of interesting aspects of the panel's ruling in US v. Williams, No. 09-3174 (7th Cir. Aug. 5, 2010) (available here) -- including the fact that retired Justice Sandra Day O'Connor was one of the members of the Seventh Circuit panel (though she was not the author of the unaninous panel opinion).

But Williams strikes me as especially notable because the panel's emphasizes on the fact that the defendant challenging § 922(g)(1) had previously been convicted of a violent felony. And then the panel opinion throws in this very noteworthy paragraph:

And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams.  Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him.  See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”).  Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

It seems that the panel here in Williams may be essentially urging that a better candidate in the form of a non-violent felon, take a Second Amendment run at § 922(g)(1).

A few related Second Amendment posts on related issues:

August 5, 2010 in Offender Characteristics, Second Amendment issues | Permalink | Comments (7) | TrackBack

Thursday, July 29, 2010

Third Circuit rejects Second Amendment attack on federal crime of possessing gun with obliterated serial number

The Third Circuit has a very detailed and interesting discussion of Heller and the Second Amendment's impact on gun possession prohibitions and regulation today in US v. Marzzarella, No. 09-3185 (3d Cir. July 29, 2010) (available here). Here is how the lengthy opinion gets started and ends:

This appeal presents a single issue, whether Defendant Michael Marzzarella’s conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms.  We hold it does not and accordingly will affirm the conviction....

Second Amendment doctrine remains in its nascency, and lower courts must proceed deliberately when addressing regulations unmentioned by Heller.  Accordingly, we hesitate to say Marzzarella’s possession of an unmarked firearm in his home is unprotected conduct. But because § 922(k) would pass muster under either intermediate scrutiny or strict scrutiny, Marzzarella’s conviction must stand.

For the foregoing reasons, we will affirm the District Court’s denial of Marzzarella’s motion to dismiss the indictment and affirm his judgment of conviction and sentence [which was 9 months imprisonment].

As the opinion's penultimate paragraph suggests, the Marzzarella opinion proceeds deliberately and in so doing cover more Second Amendment ground than any other opinion I can recall from the last two years.  (I am tempted here to make a bad pun on the defendant's name by saying that the Marzzarella opinion comes with extra Heller cheese and lots of dicta toppings.) 

In short, the Third Circuit's work in Marzzarella is a must-read for anyone following the development of Second Amendment jurisprudence.  It also provides another notable data point for those hoping (or fearing) that Heller would not seriously impact the vast majority of gun control laws.

UPDATE: The Legal Intelligencer now has this report on the Marzzarella decision, which is headlined "In Wake of 'Heller,' 3rd Circuit OKs Ban on Unnumbered Guns."

July 29, 2010 in Second Amendment issues | Permalink | Comments (5) | TrackBack

Friday, July 23, 2010

Tenth Circuit dodges Second Amendment issue in gun possession prosecution involving self-defense claim

The Tenth Circuit handed down a notable decision today in US v. Pope, No. 09-4150 (10th Cir. July 23, 2010) (available here), in which the panel dodges a potentially challenging Second Amendment issue on procedural grounds.  Here is how the opinion starts:

This case began when a grand jury indicted Mark Pope for violating 18 U.S.C. § 922(g)(9). That statute makes it a federal felony for a person previously convicted of a misdemeanor crime of domestic violence to possess a gun.  In response to the indictment, Mr. Pope filed a motion to dismiss.  While he admitted to being previously convicted of a domestic violence crime, and to possessing a gun, Mr. Pope pressed an affirmative defense that, he said, precluded his conviction.  Because he possessed the gun in question only on the property where he was living and only to protect himself, others, or his property, he argued that the application of § 922(g)(9) to him would violate the Second Amendment.  While the statute may be constitutional as applied to other situations, it is, he submitted, unconstitutional as applied to the facts of his case.

The district court denied Mr. Pope’s motion to dismiss and today we affirm that decision.  We do so without passing, one way or the other, on Mr. Pope’s Second Amendment defense because an antecedent procedural problem lurks here.  All the material facts on which Mr. Pope’s motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence.  Under these circumstances, Fed. R. Crim. P. 12(b)(2) and our precedent preclude the resolution of Mr. Pope’s asapplied constitutional challenge before trial.

Notably, as the Pope opinion explains, after the district court denied the defendant's motion to dismiss, "Mr. Pope opted to plead guilty and was sentenced. In agreeing to plead guilty, however, he reserved his right to appeal the district court’s denial of his pre-plea motion to dismiss." In light of that plea decision, and now the Tenth Circuit's procedural ruling, it is unclear whether or how Pope's Second Amendment claim will ever be adjudicated on the merits.

A few related Second Amendment posts on related issues:

July 23, 2010 in Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (2) | TrackBack

Friday, July 16, 2010

Brady Center VP already making much of Seventh Circuit's ruling in Skoein

In a week full of eventful circuit opinion, the Seventh Circuit significant Second Amendment ruling in Skoien from earlier this week (basics here, commentary here) still seems to me to be the most noteworthy.  Conforming my view is this new piece at The Huffington Post from Dennis A. Henigan, the Brady Center's Vice President, which is headlined, "New Court Ruling Throws Cold Water on 'Gun Rights' Celebration." Here is how the piece starts and ends:

For those in the extremist gun lobby and the libertarian right who view the Supreme Court's recent Second Amendment rulings as assault weapons ready to blow holes in America's gun laws, the Seventh Circuit's ruling this week in U.S. v. Skoien must be a bitter pill.

Skoien is no doubt the most significant lower court ruling on the Second Amendment since the Supreme Court's decision in District of Columbia v. Heller two years ago recognizing the right of individuals to have guns in the home for self-defense.  The Seventh Circuit heard the case en banc (i.e. with all eleven judges sitting) and, by a vote of 10-1, upheld the conviction of Steven Skoien for violating the federal law barring possession of guns by individuals with misdemeanor convictions for domestic violence.  Skoien, like many other convicted gun criminals, saw Heller as a way to avoid punishment by seeking to strike down as unconstitutional the law he had violated.

The Skoien ruling is a bucket of cold water thrown on the "gun rights" celebration following the Supreme Court's decision last month in McDonald v. City of Chicago striking down Chicago's handgun ban....

It is easy to understand why libertarian bloggers like Josh Blackman are upset about the Skoien ruling, which he cites as evidence of the "epic failure" of both Heller and McDonald to truly establish a constitutional basis for the gutting of America's gun laws.  Blackman frets that Judge Easterbrook's opinion in Skoien sets forth "a framework that will likely be relied upon by most courts."  If he's right, and I think he is, strong gun control laws have little to fear from the Second Amendment.

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

July 16, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, July 15, 2010

NBA's Delonte West sentenced (lightly? harshly?) for weapons offenses in Maryland

The fact that the Supeme Court has now made clear that the Second Amendment applies to the states apparently did not prompt NBA player Delonte West or his lawyer to think he ought to try to fight his prosecution for keeping and bearing arms on a Maryland highway last year.  As detailed in this Washington Post article, West today pleaded guilty and was sentenced for his arms possession:

NBA player Delonte West pleaded guilty Thursday to two weapons charges and was sentenced by a Prince George's County judge to eight months of home detention, two months of probation and 40 hours of community service.

West had been charged with six weapons offenses and two traffic violations. He pleaded guilty to carrying a dangerous weapon -- an eight-inch bowie knife -- and illegally transporting a handgun.

At a court hearing in Upper Marlboro, West's attorney, C. Todd M. Steuart, said his client was taking the weapons from his mother's home in Brandywine to his house in Fort Washington when he was stopped by a Prince George's police officer on the Capital Beltway in the Landover area, miles away from either home. West was carrying two handguns, a shotgun, the knife and more than 100 shotgun rounds.

West told Circuit County Judge Graydon S. McKee III that he felt remorse for the incident. "I want you to know how apologetic I am to you and all the other professionals in here who do the right thing," he said. West said he often speaks to Washington area youth who have been in trouble. "I'm able to share my experiences with them," he said. "I'm able to relate to them. If I never dribble a basketball again, I think I found my calling."

Following the hearing, State's Attorney Glenn F. Ivey said the sentence will allow West to go to Cleveland for his job as a player with the Cleveland Cavaliers. West will be allowed to attend practices, home games and away games, Ivey said.

Prince George's prosecutors typically ask for a year in jail for defendants convicted of a weapons offense. Judges usually sentence defendants with no prior convictions -- like West -- to probation or home detention, Ivey said. The terms of West's plea bargain ensure he is being treated no differently than any other defendant in similar circumstances, Ivey said.

As the title to this post suggests, I am unsure whether it is fair to view West's sentence as light, harsh, or perhaps just right.  As I suggested in this post right after West's arrest, a person with a robust view of the Second Amendment might be greatly concerned that West is subject to a significant sanction for merely keeping and bearing arms.  And yet, in light of the significant prison sentences given to Plaxico Burress and Lil Wayne for gun possession in New York City, West likely should consider himself lucky to avoid any serious jail time.

July 15, 2010 in Celebrity sentencings, Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack

Notable press account of Skoein Second Amendment ruling with partisan perspectives

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

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

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

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

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

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

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

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

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

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

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

July 15, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, July 14, 2010

Skoien and the many challenges of Second Amendment jurisprudence

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

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

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

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

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

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

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

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

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

Tuesday, July 13, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, July 07, 2010

Second Amendment lawsuit already filed against new Chicago gun regulations

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

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

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

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

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

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

Some old and new related posts on state litigation and McDonald

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

Saturday, July 03, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, July 01, 2010

Chicago's gun control response to the McDonald ruling

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

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

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

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

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

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

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

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

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

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

Wednesday, June 30, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 29, 2010

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

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

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

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

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

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

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

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

Monday, June 28, 2010

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

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

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

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

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

Some older posts on the Heller and felon gun rights:

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