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November 20, 2007

SCOTUS takes up DC Second Amendment case ... predictions?

Lyle Denniston in this post at SCOTUSblog has the big Supreme Court news today:

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

How Appealing has lots of additional coverage here

As I have suggested in previous posts, if the Supreme Court gets serious about protecting gun rights, I think severe sentences for some minor gun crimes could be subject to a new kind of constitutional attack.  But I'm not betting the Justices will get truly serious about protecting gun rights. 

November 20, 2007 at 02:38 PM | Permalink


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My guess is a "qualified right." State and federal restrictions subject to something equivalent to reasonableness review. I.e., something that will invalidate the total ban that exists in D.C. while preserving all of our felon-in-possession laws and probation conditions, plus enhancements for crimes that feature use or possession of a gun. I doubt it will have any impact on gun-related sentencing.

Posted by: Alec | Nov 20, 2007 2:58:28 PM

I predict that they will find it an individual right that is not incorporated against the states.

Posted by: Bill | Nov 20, 2007 3:59:11 PM

D.C. isn't a state.

Posted by: | Nov 20, 2007 4:57:35 PM

Roberts, Scalia, and Thomas are on record already as pro-individual rights. Stevens' dissent in Staples is a pretty good indicator of his being in the collectivist camp, and I read Ginsburg's concurrence that way too. I would be shocked if pragmatist Breyer would vote for the decisively (from a liberal point of view) unpragmatic individual rights interpetation. Alito is somewhat of a pragmatist, and I still think his comment to the Senate about jurisdictional hooks in the machine gun case he voted on in the third circuit sounds like he doesn't feel that it's too burdensome for the government to constitutionally restrict firearms. That leaves Kennedy and Souter, and I wouldn't be surprised if we find the bachelor from New Hampshire as more supportive of gun rights than the reliably pro-police Kennedy. My predictions imply that no individual right will be found, but if I'm wrong what restrictions are place on the right is anyone's guess.

Posted by: A fellow Ohioan | Nov 20, 2007 11:07:35 PM

Does anyone think that this means that the Felon-in-possession cases could all be vacated, and maybe the USSC will have to conform the guidelines as well?

This, I think, will dwarf the resentencings required by the crack guidelines.

Posted by: S.cotus | Nov 21, 2007 11:34:53 AM

I don't see how a felon in possession conviction is bothered at all by a lifting of the ban on LEGAL gun possession. One doesn't follow the other.

Posted by: dweedle | Nov 21, 2007 2:06:53 PM

If it's constitutional to keep a felon from voting, then surely it is constitutional to keep a felon from owning a gun.

Posted by: | Nov 21, 2007 2:15:43 PM

Dweedle, Well, I guess we are going to see how this plays out. If there is an individual right to carry a gun, my guess is that we would have to go about deciding whether any felony conviction can deprive someone of that right, or whether there needs to be a specific statute.

But, I guess we will have to wait for that issue.

Posted by: S.cotus | Nov 21, 2007 5:00:51 PM


I cannot agree. It's at least arguably unconstitutional to keep a felon from owning a gun based on the second amendment, and applicable to the states if incorporated through the fourteenth. But the constitution contains no right to vote, and only bans states from denying the vote based on race, sex, and age (for people over 18). The constitution on its face certainly allows denial of the vote on other grounds, although I concede that there are probably numerous court opinions that probably ignore this. The only caveat is that the constitution requires states who deny the vote to any non-convict white male felons over 21 to lose representatives in the house in proportion to the percentage of such people denied the vote. Even the Supreme Court, which I think has at lest impliedly recognized the non-existent constitutional right to vote has conceded it doesn't apply to convicts based on this provision.

Posted by: | Nov 21, 2007 8:04:05 PM

Concerning Felon in Possession issues, let's take a case I'm trying Monday. Defendant has a 1988 cocaine conviction, for which he did his time and had his citizenship rights restored. The law in effect at the time allowed him to possess a firearm five years later. He is issued five hunting licenses by the State in the 1990's. His mother is worried about her husband killing himself and removes a 1914 single shot shotgun from her home and gives it to def to store in his bedroom closet. Two years ago legislature changes the law to prohibit any possession anytime, any place by any person with a prior felony, no matter how old. Police search def's house and finds shotgun in closet, charges def with Possession by Felon , and adds Habitual Felon charge, exposing Defendant to mandatory minimum of 80 months in prison.

Seems to me that, even if there is not a Second Amendment right involved, at least, the Defendant should not go to prison unless the State proves he had actual notice that the law had changed and he could no longer store his father's shotgun in his house. I'm arguing that Possession by a Felon is a "passive crime" under Lambert v California and due process requires actual notice of change in the law.

bruce cunningham

Posted by: bruce cunningham | Nov 22, 2007 12:05:52 PM

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