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October 25, 2007

A Second Amendment problem with Peltier?

Along with commentors, I have bemoaned the statutory problems and the practical craziness of the Fifth Circuit's affirmance of a 10-year maximum sentence for a not-particularly-serious version of felon-in-possession in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here).  And, with the Supreme Court now poised to consider whether the Second Amendment protects an individual right to keep arms (a view I believe the Fifth Circuit has already embraced), I am now wondering whether there might be a serious Second Amendment issue lurking here.

Recall that in Peltier the defendant "pleaded guilty to one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1)."  Specifically, he possessed an "old, rusty .12 gauge shotgun stashed in an outdoor shed," which he said "he kept ... for personal protection."  Of course, even if the Second Amendment confers upon individuals a right to keep arms, some reasonable restrictions on that right (just like reasonable restrictions on free speech/press rights) must be allowed in the name of public safety.  And perhaps even a total ban on felons possessing firearms might qualify as such a reasonable restriction in the name of public safety.

But at some point, if the Second Amendment does confer on individuals a right to keep arms, wouldn't extraordinarily severe criminal punishments for non-threatening possession raise serious constitutional questions?  Don't the penumbras of the Second, Fifth and Eighth Amendments cast a dark shadow on rulings like Peltier in which a defendant is deprived of 10 years of liberty by a judge simply for having a shotgun in his shed?

Perhaps I am trying to read too much into the Second Amendment, but cases like Peltier are one of many reasons I am keeping a close eye on the brewing gun litigation brouhaha.

October 25, 2007 at 02:22 PM | Permalink


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"Please don't emanate in the penumbras."

Posted by: Kent Scheidegger | Oct 25, 2007 5:09:34 PM

It’s a fair question, Doug. If one values gun rights and believes that contemporary federal and state criminal codes are overloaded with felonies, then broad criminal felon-in-possession statutes are troubling.

As for the Second Amendment, the answer will depend on the proper level of scrutiny for federal restrictions on the Second Amendment right to keep arms. (This of course assumes, as I hope will occur, that the Supreme Court takes Heller and affirms the D.C. Circuit's holding that the Amendment protects an individual right to possess firearms, good against the federal government.) The Fifth Circuit, which as you note already recognizes an individual right to keep arms, has suggested that the appropriate level of scrutiny is for “reasonableness,” which sounds like intermediate scrutiny. However, if memory serves, the Fifth Circuit has declined to rule out the possibility of strict scrutiny.

Most firearms regulations are claimed to be justified by an interest in protecting public safety / life and limb – clearly a "compelling government interest." Thus, I believe that post-Heller Second Amendment challenges will tend to boil down to the issue of "narrow tailoring."

Some sorts of felonies are plainly both severe enough, and probative enough of future criminal violence, that they could provide a valid predicate for debarring the convict from possessing modern firearms,** even under strict scrutiny. Murder, attempted murder, armed robbery, etc. But others, especially some nonviolent and white-collar felonies, have a much more attenuated connection to future violence, and a court might fairly hesitate to hold that the fit between the statutory means and ends in such a case is tight enough to support the abrogation of a fundamental right.

Drug felonies are going to pose tricky issues. On one hand, a modest possessory drug crime, even if punishable by (say) 2 years in jail, does not seem highly probative of future armed violence. On the other hand, the offender’s involvement with drugs suggests that he may be a drug user himself, which means frequently intoxicated or under the influence, which is a classic reason for debarring someone from possessing arms. As a practical matter, I doubt post-Heller litigants will succeed in convincing federal judges that 922(g)(1) is unconstitutional as applied to drug felonies – and indeed, there are some plausible reasons for federal courts to uphold the statute as applied to those sorts of convictions. But with respect to other types of nonviolent convictions, Section 922(g)(1) may indeed undergo some constitutional trimming around the edges. I wouldn't mind seeing that.

One last observation: Section 922(g)(1) is interpreted to include an affirmative defense of self-defense (justification), but the scope of the defense is narrow. It requires, inter alia, that the defendant face a "present threat" to life or limb, and he has to abandon the firearm once the present threat disappears. So if Peltier were being chased by an armed assailant and found a shotgun lying on the ground, he could pick it up and use it to defend himself, notwithstanding 922(g)(1). But he couldn't keep a firearm around the house for the general purpose of self-protection.

**: I say “modern firearms” because "antique firearms" (pre-1899), and contemporary replicas thereof, are not considered “firearms” for purposes of 18 U.S.C. 922(g)(1), the federal felon-in-possession statute. See 18 U.S.C. 921(a)(16).

Thus, where state law permits, a felon can legally obtain a functional, replica cap-and-ball blackpowder revolver for protection. This does not obviate the potential constitutional issue, since an antique firearm is by no means an adequate substitute for the sort of defensive handgun the law-abiding plaintiff in Heller wishes to possess – viz., a modern semi-automatic pistol firing modern cartridge ammunition, just like the ones the D.C. government allows its servants, the police, to use. Still, some blackpowder replica guns have value for defense. E.g.: http://www.ubertireplicas.com/products/bp1860Army.html

Posted by: Mike O'Shea | Oct 25, 2007 9:15:42 PM

Please --

the plural of penumbra is penumbrae.

Posted by: pd | Oct 25, 2007 9:26:12 PM

I realize that this is just idle speculation, but the suggestion is more than a little farfetched.

And pd, Justice Douglas spelled it penumbras...

Posted by: | Oct 25, 2007 11:24:55 PM

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