« Recalling the human realities of mass incarceration | Main | Latest USSC data perhaps suggesting Gall effect »

May 20, 2008

A ruling that must be wrong if the Second Amendment is about the right of self-defense

The Third Circuit today in US v. Alston, No. 06-1559 (3d Cir. May 20, 2008) (available here), affirms a mandatory 15-year felon-in-possession conviction in yet another case that has to give serious pause to real fans of the Second Amendment.  Here are the basics:

Alston admitted to possessing a firearm but he claimed it was necessary for self-defense.  The uncontested facts [show] ... that in June 2001, he was robbed and shot five times at 45th and Sansom Streets in Philadelphia. After returning home from the hospital, Philadelphia police officers asked him to prosecute.  On the basis of Alston’s identification, two men were arrested and tried. Alston testified against the men at the preliminary hearing and at trial, having received police assurances of protection.  The two defendants were acquitted of all charges.

After the acquittal, various people told Alston “to watch [his] back because they heard [the defendants were] out looking for [him], to get revenge from [him] getting them arrested.”  Nevertheless, Alston did not change his address and eventually returned to work after recovering from his injuries.

On the day he was arrested, September 30, 2002, around 4:45 p.m., Alston was transporting his daughter home on his mountain bike and rode past Louis Bentley, one of the acquitted suspects against whom he had testified. According to Alston: “I was riding past with my daughter but [Bentley] was talking to somebody and I heard him, he said he’s gonna get me, he said that’s the dude that got me arrested in 2001, he said he was gonna get me.” Alston immediately took his daughter home then secured a revolver from his mother’s house, in order, he said, to protect himself from Bentley.  Alston left his mother’s house on his bicycle, carrying the gun and wearing a bulletproof vest.   As noted, Alston was arrested around 10 p.m. that same night.

Under these undisputed circumstances, the Third Circuit affirms the district court's decision that Alston should not be allowed to argue the defense of justification when being prosecuted for felon-in-possession.  Here is the heart of the panel's analysis:

To hold otherwise would immunize a convicted felon from prosecution for carrying a firearm solely based on a legitimate fear for life or limb.  Someone in Alston’s circumstances must show more than a legitimate fear of life and limb, as possession of a firearm by a convicted felon in the hope of deterring an assault is unlawful. Congress has not allowed it, and courts have only allowed the defense where the immediacy and specificity of the threat is compelling, and other conditions are met.

It can be reasonably debated — and there is an interesting jurisprudential debate among the circuits — as to whether Congress intended to completely prevent all previously convicted persons from possessing a firearm when facing "a legitimate fear for life or limb."  But, whatever Congress might intend, doesn't this prosecution trouble fans of an individual Second Amendment right?

I have often heard gun advocates claim that the Framers intended the Second Amendment to safeguard an individual natural right of self defense.  If the Second Amendment is to be so understood, shouldn't Mr. Alston at the very least be able to argue his justification defense to a jury?  (Indeed, had I been advising his lawyer, I would have advocated on these facts seeking jury nullification at trial rather than entering a conditional plea to a charge that carries a mandatory 15-year term.) 

Whenever I post about my concern regarding the trampling of the gun rights of former felons, many commentors call reasonable the blanket federal ban on gun possession by anyone previously convicted of a felony.  But can anyone really justify placing Mr. Alston in federal prison for 15 years simply because he carried a gun for self-defense for a short period when indisputbly facing "a legitimate fear for life or limb"?   

Some recent related posts on potentially lively Second Amendment cases:

May 20, 2008 at 03:37 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A ruling that must be wrong if the Second Amendment is about the right of self-defense:


Perhaps you should write the petition for rehearing en banc or for certiorari. Heller should be released within a couple of weeks.

Posted by: | May 20, 2008 3:54:50 PM

If asked and time permits, I'd be happy to give this a go. Indeed, I think there might be viable 5th and 8th Amendment claims, as well as a 2d Amendment claim on these facts. Then again, all these kinds of claims might be deemed waived by the condititional plea....

Posted by: Doug B. | May 20, 2008 4:06:48 PM

How about allowing a neutral magistrate to determine the propriety of a self-defense exemption on a case-by-case basis? Much the same way that minors can petition a judge for an exemption to parental notification laws.

Posted by: KipEsquire | May 20, 2008 4:07:26 PM

How about letting a jury of peers decide? Didn't the Framers make much of jury trial rights in the hope that government excesses in the criminal justice system could be policed through the the democracy of the the "little legislature" (i.e., the jury).

Posted by: Doug B. | May 20, 2008 4:14:04 PM

I am a non violent convicted felon and if I were faced with the same circumstances I would have done the same thing. I have myself and a child to protect and if it means that no harm comes to my child I will do the 15. All the while the state will be spending 30k a year to keep a non violent person locked up. What a bunch of CRAP.

Posted by: noway | May 20, 2008 4:23:57 PM

I wonder if the Victims' Rights Industry will pipe up on this issue. Will Cassel and his ilk declare that felons, if they have a reasonably subjective belief that their lives are in danger have a right to carry weapons of self-defense?

The ball is in their court.

Posted by: S.cotus | May 20, 2008 5:19:26 PM

Subjectively reasonable, that is.

Posted by: S.cotus | May 20, 2008 5:20:40 PM


At common law, I believe that children and those who were mentally incompetent could be barred from carrying firearms. I highly doubt that there was an exception to this bar if the child or the mentally incompetent were acting based on a reasonable belief that they needed to defend themselves.

Likewise, at common law, felons could be barred from carrying a firearm. So why should things be any different? In all of your many posts about this issue, I still haven't seen a satisfying answer for why the common-law bar on possession of firearms by felons doesn't absolutely and totally bar any 2A claims by felons today. It seems pretty clear that the original understanding of the 2A didn't protect felons.

Posted by: Anonymous | May 20, 2008 5:22:04 PM

re: waiver, if the issue of whether or not the defendant could argue a justification defense was still in play, then it seems to me that at least the 2nd Amendment issue that interests you would still be live.

no comment on the 5th Amendment

I'm curious about the suggestion that the 8th Amendment might have some relevance, assuming that that sort of a claim isn't waived. I haven't dealt much with the 8th Amendment, but my general understanding is that it only has any bite in the context of: (1) methods of punishment, (2) prison conditions, and (3) procedural rights in capital cases.

The only case I know of where a court said that a prison sentence was unconstitutional under the Eighth Amendment as being "just too much prison time for the crime committed" (my summary, not anyone's actual words) is the Genarlow Wilson case. Do you (Prof. Berman) or anyone else know of any similar cases? Is my general understanding of the 8th Amendment caselaw correct?

Posted by: | May 20, 2008 5:22:31 PM

anonymous, the difference between felons and mentally incompetent/children is that in the latter case, the law doesn't necessarily recognize them as capable of forming a legally significant belief about anything.

S. Cotus, I suppose the natural "victims" in this case would be the people who threatened to kill Alston. If they demand a voice in Alston's sentencing (should he be convicted) or in his plea bargain (should it come to that), that would be quite ironic.

Posted by: | May 20, 2008 5:25:51 PM

felonies, at common law, were radically different than they are today. No attempt crime, for example, was a felony. All theft criems were felonies. Kidnapping was not a felony. So, even if it is true that at common law, felonys (who generally got the death penalty) were barred from owning a firearm, that would have little bearing on whether the felon-in-possession statute was constitutional. Assuming, of course, that Originalism made sense to begin with.

Posted by: | May 20, 2008 5:54:12 PM

For goodness sake they shot the man 5 times the first time. Can anyone really say they would not take action to protect themselves felon or not. Situations like this will continue and you and I will foot the bill for housing someone like Mr. Alston. What a shame. If there was a jury and I was on it I would have voted not guilty!!

Posted by: BS | May 20, 2008 6:24:25 PM

Does anyone know of a study done of felon convictions for gun possession at the ratification of the Bill of Rights and shortly thereafter? Based on court documentation, I mean. Friedman isn't any help.

Posted by: George | May 20, 2008 6:28:47 PM

The definition of “victim” varies based on who you are talking to.

Traditionally, the Victims’ Rights Industry (and make no mistake, it is an industry) seems to think that the first person that some cop decides is a “victim” is objectively, a “victim.”

But, there are many other “victims.” The defendant in this case seems to be a victim, too. After all, he was the target of some degree of “threat” and the fact that the police did not protect him seems to transform him from a “victim” to a “felon.” Pretty nifty.

Somehow the Victim’s Rights Industry doesn’t consider the families of people sent to a taxpayer funded hole to be “victims.” Likewise, they usually don’t stop to think too much about whether the “victim” of a crime really wants the defendant to go to jail. I’m no sociologist or psychologist, but I gander that taking away a kid’s family just might hurt him.

Maybe the “victim” of a crime just wants restitution. Maybe they didn’t consider what happened to be a crime, etc. etc. Alas, unless the “victim” and the prosecutor are from similar social backgrounds and share the same life experiences, it is doubtful that any prosecutor would understand where the victim is coming from.

The Victim’s Rights Industry doesn’t care about matters usually cognizable under 1983 or Bivens. Somehow, someone that is the “victim” of a cop doesn’t count as a victim. Indeed, they don’t even argue that Qualified Immunity (a defense, not a substantive element necessary to determining when a constitutional right was violated) actually HURTS that rights of victims. This doesn’t seem to be too profitable for the Victims Rights Industry.

What about everyone acquitted of a crime. Are they victims? What about exonerated people?

Posted by: S.cotus | May 20, 2008 6:39:06 PM

An Organ court has a compelling argument against the constitutional right of felons to own guns.

On the other hand, the use of the need to defend one's self from felons is suspect. Today, expansive surveys show that only about seven percent of handguns owned by violent felons were obtained through legitimate channels.

A good deal of law enforcement effort goes to preventing the ability to commit the crime before it is too late. If the Court uses the same reasoning as in Williams against child porn, and applies it to guns, it may arrive at the same conclusion. (In 1999, 3,385 kids ages 0-19 years were killed with a gun. This includes homicides, suicides, and unintentional injuries.

Posted by: George | May 20, 2008 7:45:34 PM

That Oregon opinion is really embarrassing. It seems to believe that there is a common law rule against felons owning firearms, although the sources they cite don’t seem to all agree on that rule. But as noted above, a “felon” at common law is quite a bit different than a “felon” under current law.

Posted by: | May 20, 2008 8:29:48 PM

What about a Ninth Amendment claim to self preservation which trumps any second amendment issues?

Posted by: bruce cunningham | May 20, 2008 11:28:20 PM


"How about letting a jury of peers decide? Didn't the Framers make much of jury trial rights in the hope that government excesses in the criminal justice system could be policed through the the democracy of the the 'little legislature' (i.e., the jury)."

I'm all in favor of letting the jury decide. Indeed, when I was an AUSA, I was no big fan of plea bargaining and did less of it than any of my 60 or so colleagues in EDVA. Still, it's permitted under Santobello v. New York. Accordingly, where, as here, a counseled defendant enters into a bargain, he's stuck with it (as of course is the government).

The problem with this case seems to be, as the Third Circuit said, in the immediacy and specificity of the threat. Until Heller or post-Heller cases say otherwise, felons cannot legally possess firearms. The Third Circuit implies (I believe correctly) that there is an exception to that ban for self-defense, but limits the self-defense exception in the same way it is limited for non-felons, namely, by requiring that the use of deadly force be in response to an IMMINENT threat of death or serious bodily injury.

In the case as it has been described here, there was no such imminent threat. Alston heard the threatening remarks at 4:45. He was arrested a little more than five hours later, apparently when he was not in either his or his mother's home. (The opinion suggests, but doesn't say, that he was on his bicycle somewhere in the neighborhood).

So what we have is a felon in possession of a firearm five hours after the threat, with the people doing the threatening nowhere in sight, and (it seems) riding around looking to do a preemptive strike.

The case has the flavor of self-defense, but flavor has limited value in litigation. On the actual facts, I can see why the district judge and the Third Circuit were unwilling to find Alston's behavior legally permissible.

Incidentally, am I the only person here who wonders why Alston's prior testimony did not result in the conviction of his antagonists? Did the jury in that earlier case see something about Alston that would cast the present dispute in a different light?

One final thought: I do not agree that juries are "little legislatures." The province of the legislature is for ELECTED officials to make the law. The province of the jury is to find the facts and decide whether they establish every element of the legislatively defined offense, or not.

To allow each jury to become its own legislature is to go halfway down the road to anarchy. Jury nullification -- to render an acquittal despite the facts because it thinks the defendant did "the right thing" -- sounds all well and good, until you look at its history.

By far the most prominent incidence of jury nullifications consisted of Jim Crow juries handing out acquittals to killers. You might remember the case of Byron DeLabeckwith, a Klansman who had participated in a particularly sadistic murder of a black person back in the 1960's. (It might have been the fire bombing of the Birmingham church; I just can't recall right now). State juries simply would not convict him. This was not because the evidence was deficient; indeed, DeLabeckwith gave an interview to Look Magazine in which he all but boasted of his role in the crime.

The reason he got off was that the jury was doing some nullifying -- acting as its own legislature. The jury's "statute" read more-or-less as follows: "It shall be unlawful to kill a human being intentionally and with malice aforethought, unless the killer is white and the person killed is an 'uppity' black."

Moral of story: once you let jury nullification out of the bottle, be ready for some unpleasant surprises about the looks of the Genie.

Posted by: Bill Otis | May 21, 2008 9:25:59 AM

Bill, even if there was an immediate threat, defendants have been convicted of possession of a firearm by a convicted felon. I am aware of such a case from Henry County, Virginia - defendant who was a convicted felon shot and killed a person. The evidence at trial showed that the decedent and another person were firing shots at the trailer where the defendant lived. Defendant was acquitted of the murder charge but still convicted of possession of a firearm by a convicted felon. Obviously that was a state case, but it seems that there is no exception in Virginia even in cases of legitimate self defense.

Bruce raises a great point - let's not forget the forgotten 9th Amendment and that seems like a better location for the right to self defense.

Posted by: Zack | May 21, 2008 4:29:06 PM

I think Bill Otis nailed the big problem with this case that made it a terrible vehicle for a Second Amendment challenge to felon-in-possession laws: the facts. The fact pattern looks very familiar to anybody who's ever dealt with small-time gang-bangers. First a verbal threat or disrespectful comment. Later, the "victim" of the threat arms himself. And goes out looking to find whoever dissed him. Usually with tragic results -- here, fortunately, the defendant was apprehended before blood flowed. On those facts, this guy has no leg to stand on under any application of the law of permissible deadly force. The Third Circuit was dead-on right.

For a self-defense exception to felon-in-possession laws to have any chance of working, you're at minimum going to need a defendant who ONLY possessed a firearm in the minimum manner necessary to defend him/herself or others from an imminent threat of death or serious bodily harm. Preferably in a "castle doctrine" state, with the defendant's actions otherwise meeting the safe harbor requirements.

Hypothetically speaking (or not, you decide): I know of one very small, non-publicized case many years ago involving a recently-released Federal defendant who had cooperated in a major conspiracy investigation and received a significant 5K1.1 downward departure. The defendant had a late-night "visit" at home from a drunken relative of someone he'd helped put away. While the relative was standing on the porch shouting at the defendant, he called the emergency number for the local county sheriff. And armed himself with a hunting rifle (used to be his; per his defense lawyer's advice it had earlier been transferred to his wife under the applicable state regulations). If the enraged, drunken relative invaded the home and tried to kill the defendant or a family member, that would be your case. But that's not anywhere close to the case the Third Circuit had.

BTW - the rest of the story in my hypothetical: Nobody got hurt. Sheriff showed up and got rid of the relative. And then saw that the defendant had a gun. Arrested him -- possibly the biggest bust of the week in that rural county. The local part-time prosecutor, who'd been cut out of any action in the big case the defendant had earlier flipped in, wanted to throw the book at the defendant. Under state law he was looking at a mandatory 2-year minimum. The Feds learned of this and told the locals they were assuming jurisdiction over this defendant's clear violation of the terms of supervised release (for those not familiar with Federal practice, not possessing firearms is a boilerplate supervised release condition). And with the active collusion of the Probation Officer and a District Judge, the USAO cut him a MUCH better deal in exchange for his plea to the supervised release violation. One might even argue that this case shows not all AUSAs are heartless, jackbooted thugs... ;)

Under the right narrow circumstances, you might win on a combination Second Amendment/self-defense argument, as applied. However, IMHO, I just can't see any court accepting a facial challenge to 922(g), regardless what thepost-Heller world looks like. The concept of generally not wanting felons or mental defectives to have gun rights is just too distasteful to almost everyone, even appellate judges. And the precedential and factual history of this and other civil rights disabilities applied to felons is just too strong (even if the definition of "felon" is a bit fuzzy at the edges, as noted in some of the comments above).

Posted by: zippypinhead | May 23, 2008 6:41:27 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB