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May 14, 2008

Sentencing of Army reservist for gun crime causing a stir

As regular readers know, the Heller case and related Second Amendment issues has me keeping a close eye on gun crime sentencing cases of note.  This new article from the Milwaukee Journal Sentinel, headlined "Automatic gun transfer nets prison sentence," spotlights a defendant sentenced yesterday in a case that has already drawn significant media attention.  Here are excerpts:

A Wisconsin man whose federal conviction for illegally transferring a machine gun drew national attention on CNN and the Internet was sentenced Tuesday to 30 months in prison.  David R. Olofson, 36, of Berlin, who remains a member of the Army Reserve until his felony conviction becomes official, was convicted by a jury in January.

Olofson, whose case has been reported several times on Lou Dobbs' show on CNN, faced up to 10 years in prison, Federal sentencing guidelines called for 27 to 33 months.   U.S. District Judge Charles Clevert said Olofson knew or should have known the gun in question fired automatically. "This was a man who has considerable knowledge of weapons, considerable knowledge of machine guns," Clevert said. "Mr. Olofson, in this court's view, has shown he was ignoring the law."

Assistant U.S. Attorney Gregory Haanstad noted that Olofson had two previous gun-related convictions, including carrying a concealed weapon with his children trick-or-treating.  He also noted that Olofson was reprimanded for corrupting Army computers and perhaps providing militia groups access to sensitive information.

Olofson's attorney, Brian Fahl, who had asked for probation, promised a swift appeal with help from the National Rifle Association.  He argued that Olofson's rifle malfunctioned because of the way it was manufactured. Fahl said the case is being watched nationally because some believe it allows for criminal charges whenever a weapon accidentally fires more than once. "If you have a multiple firing, it looks like you can be prosecuted," Fahl said....

Prosecutors argued it is a straightforward case of someone knowing a gun fired automatically and giving it to someone else.  In July 2006, Olofson lent an Olympic Arms AR-15 rifle to Robert Kiernicki, who took it to a shooting range in Berlin, according to court documents.  Kiernicki was responding to an ad posted by Olofson to sell an AR-15.

AR-15s are semiautomatic rifles that fire a bullet each time the trigger is pulled. Federal law classifies a weapon that fires more than one bullet with a single trigger pull as a machine gun. People can legally own fully automatic, military-type M-16 rifles, but they must have a federal license and cannot transfer it to someone else.

Once again, I cannot help but assert that this kind of federal criminal prosecution and lengthy federal sentence for a highly technical gun possession crime seems to undermine robust Second Amendment rights.  I know some (many? most?) believe that a pro-gun holding in Heller won't impact federal gun prosecutions, but cases like this suggest again to me that we can and should expect lots of post-Heller Second Amendment litigation in federal criminal gun prosecutions.

Some related posts on other notable federal gun cases:

May 14, 2008 at 09:27 AM | Permalink


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I certainly believe in "robust First Amendment rights," but, to use an ancient example, that doesn't give me the right to shout "fire" in a crowded theater. And the Fourth Amendment doesn't give me the right to resist a warrantless search in exigent circumstances. And the Sixth Amendment doesn't give me the right to an attorney not licensed to practice in the jurisdiction. And on and on.

Again: Constitutional rights are subject to reasonable regulation. The only post-Heller question, then, will be whether Regulation X (such as the ban on possession by previously convicted felons) is REASONABLE (not perfect, or precise, or drawn in the detail it might feature -- but simply reasonable).

As I have noted before without disagreement from other commenters, there is no realistic chance that courts post-Heller would strike down rules that forbid minors from having guns. This is not because no minor can be trusted with a gun; indeed, it wouldn't be all that hard to find 1000 17 year-old's who are demonstrably more to be trusted with guns than a select group of 1000 37 year-old's. It's because such a ban on possession by minors, though imprecise, is sufficiently justified in general to be reasonable. And exactly the same will be found to be true for the felon-in-possession ban.

Posted by: | May 14, 2008 10:17:28 AM

10:17:28 AM: Fair points, but realize the case in this post is NOT a felon-in-possession case.

Moreover, an age-based legal distinction for the exercise of constitutional rights strike me as MUCH different than a very broad adult status distinction: what would you think of laws that said adult former felons can never again possess dangerous drinks (e.g., beer) or dangerous books (e.g., adult porn)?

Of course, you and others are likely to say guns can/should be subject to greater regulation because they are much more dangerous and/or much less important to people than alcohol or books. But, of course, it is this very argument being used by folks in DC to justify its blanket handgun ban at issue in Heller.

Posted by: Doug B. | May 14, 2008 10:42:26 AM

To use your argument. It would not be hard to find 1000 felons who do not deserve have firearms and I believe that it would also not be very hard to find 1000 felons who deserve to have their firearm rights restored. Again you and people like you want to lump all felons in the same category. What gives you the right to say that a person cannot protect themselves in their own homes? What about the felons serving in the armed forces protecting our country? Do you think its fair that they cannot have a firearm?

Posted by: BS | May 14, 2008 10:45:08 AM

Professor Berman,

Is anyone actually making the argument that guns should be subject to greater regulation because they are more dangerous? That seems to be something of a straw man. The Second Amendment governs possession of firearms, not possession of alcohol or pornography.

Would you be satisfied if the law prohibited the possession of firearms by only those felons who have been convicted of gun offenses? While this type of law would be less likely to include in its purview those felons who will never use a gun for unlawful purposes, it strikes me as too narrow, given the fact that many offenders may be convicted of non-gun-related offenses, yet have their sentences enhanced as a result of a finding that they possessed firearms.

Posted by: steve | May 14, 2008 12:17:16 PM

As an aside, I actually think that federal laws regarding machine guns will be the most difficult to defend if the Court affirms the DC Circuit in Heller. However, it is almost impossible to fathom that Justice Kennedy would agree that Wal-Mart should be permitted to sell machine guns, so perhaps that law is safe.

Posted by: steve | May 14, 2008 12:24:21 PM


"[Y]ou and people like you want to lump all felons in the same category."

Strictly as a linguistic matter, they ARE in the same category, just as all left-handed people are in a category apart from right-handed people.

"What gives you the right to say that a person cannot protect themselves in their own homes?"

Absolutely nothing. Which is why I haven't said it. What I have said is that a rule adopted by LEGISLATURES that felons cannot possess guns is very likely to be found constitutional because it is, though imprecise, reasonable.

"What about the felons serving in the armed forces protecting our country? Do you think its fair that they cannot have a firearm?"

I would support a rule allowing felons who have served honorably in military combat to possess guns in their homes (in part because I think it's just, and in part because it would affect very, very few people, thus making de minimus any increase in public danger).

Again, however, that is not the question, for the simple reason that what I would do is not the subject. The subject is whether legislatures could, consistently with the Second Amendment, refuse to adopt the exception I would support. And, for the reasons previously stated, I am quite sure they could.

Posted by: Bill Otis | May 14, 2008 6:17:33 PM

Bill you are the first one I have seen comment on felons serving in the armed services. I would personally think with an honorable discharge they should receive a pardon and have the same 2A rights as you have.

Hopefully Heller clears a lot of this up for us.

Posted by: BS | May 14, 2008 6:46:34 PM

This case is less about Second Amendment rights and more about a rogue BATF and overzealous (rogue) prosecution that withholds exculpatory evidence on spurious national security grounds. The prosecutors in this case, if what Lou Dobbs is reporting is true, are seriously ethically challenged.

Posted by: conservatarian | May 14, 2008 10:30:16 PM

I was in the Marine Corps In 1958 -!962 ,we were issued M1 rifles ,on many occasions while on the rifle range an M1 would shoot automatic usually 3-6 rounds before jaming ,or ejecting a clip, this was due to a broken sear located on the trigger housing.
The USA provided hundreds of thousands of M1 rifles to Armys all over the world, and as the Military began to upgrade ,thousands of M1 rifles became surplus on the world marketplace Every gun shop has M1's,even the NRA use to have a Government Markmanship Program that was sponsored by the USA ARMY ARSENALS,thousands have been sent for markmanship programs that have helped train our brave soldiers,what happens when an M1 rifle sudenly fires automatic ,a sear breaks,due we sue the USA Army, manufactures,the ATF, for allowing citizens to be armed with potential automatic weapons, or the many foreign countrys that we gave the M1's,for resell back to us?

Posted by: bob | May 17, 2008 10:52:57 PM

Just a private citizen who spent 4 years in the Marine Corp.

Posted by: Bob | May 17, 2008 11:30:07 PM

The Space Shuttle is a highly complex design and the best minds and technicians in our country and others have built this to launch and land.

It was not intended to explode ... yet because it IS a mechanical device it is subject to failure.

Posted by: Jeff Smathers | Nov 11, 2008 11:17:05 AM

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