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July 17, 2008

Lots of Heller and a notable Ninth Circuit ruling

There's lots of interesting Heller discussion going on over at The Volokh Conspiracy, and one post from Eugene Volokh really caught me eye and has me concerned again that courts (and also Eugene) are not prepared to take the implication of the Heller decision seriously, especially in the context of the operation of the criminal justice system.  This post, titled "Ninth Circuit's Sensible Response to a D.C. v. Heller Claim," reports on an unpublished ruling Ninth Circuit US v. Gilbert, No. 07-30153 (9th Cir. July 15, 2008) (available here), and after a long quote Eugene says "it seems to me the Ninth Circuit read and applied Heller quite correctly."

Gilbert is a very interesting read because it confirms my belief that Heller creates lots of potentially unexpected prosecutorial headaches.  In Gilbert, the defendant sought to mount what might be called a Second Amendment defense to federal firearm charges (during a trial that clearly took place long before Heller was decided). Here is part of the Ninth Circuit's explanation of what happened at trial:

Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms.  Each time, the court sustained government counsel’s objections and instructed the jury to disregard Gilbert’s answers.

The court also denied Gilbert’s request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use.  The final jury instructions included, at the government’s request, the following instruction:

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun.  A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

In light of established Ninth Circuit law at the time of Gilbert's trial, everything that the trial judge did seems proper.  But after Heller, in my view, much of what transpired seems legally problematic.  We now know, thanks to Justice Scalia et al., that Gilbert was right when he asserted (and sought to tell the jury) that the Second Amendment provides an individual the right to bear arms.  And, notwithstanding some dicta in Heller, we no longer can be sure that unregistered rifles or machineguns are not within the scope of protected Second Amendment rights.

Nevertheless, even though Heller would seem to change how Gilbert's defense could and should have been allowed to be presented at trial, the Ninth Circuit affirms Gilbert's convictions with this (unpublished) reasoning:

We conclude that the challenged instruction did not make the instructions as a whole misleading or inadequate to guide the jury’s deliberation. Garcia-Rivera, 353 F.3d at 792. The district court’s instructions were particularly appropriate to rebut inferences created by Gilbert’s counsel’s statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert’s stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law. The Supreme Court’s recent decision in District of Columbia v. Heller, 554 U.S. ___ (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion.  Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., Slip. Op. at 27.

I find this last sentence from the panel decision  especially troubling, because I believe after Heller is it an open and debatable question whether individuals now may sometimes have a Second Amendment right to possess machineguns or short-barreled rifles in their home for self-protection and/or to possess some firearms despite being a convicted felon when needed for self defense.  I am not surprised that a Ninth Circuit panel is eager to curtail Second Amendment rights this way, but I am surprised that Eugene is so quick to bless the Ninth Circuit's hasty work here.  I am pleased, though, to see that some commentors are questioning the embrace of this (under the radar and first?) circuit discussion of Heller.

Some related post-Heller posts:

July 17, 2008 at 05:10 PM | Permalink


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I agree. This is a great candidate for GVR or per curiam.

Posted by: karl | Jul 17, 2008 9:23:12 PM

I don't see how you can be either surprised or troubled Doug. Many people, including myself, predicted this exact course of action before Heller was even decided. Let me ask you this question: given everything the SC has said in Heller, given the substantial social and institutional investment our society has already invested in gun control, and in light of SC precedent in numerous other case, what is the basis for your optimism that Heller should be read broadly?

"holding that the Second Amendment protects a limited individual right". The word "limited" is the operative word in that sentence.

Posted by: Daniel | Jul 17, 2008 9:33:48 PM

As I noted in this post and others, Daniel, I am not surprised at all that courts are largely unwilling to read Heller broadly. What surprises me is how Eugene in this post and other supposed "fans" of the Second Amendment are backing away from their fandom as people they may not like are trying to assert the rights that Heller recognizes.

In the end, I am not really surprised that some (most?) Second Amendment fans only like for gun rights to extend to people they like. In this way, Second Amendment fans are like more fans of most rights --- they are very motivated to protect rights for those they care about and very willing to forego the same rights for those they do not care about. I guess I am just surprised that those who were so troubled by a legal status quo that recognized no enforceable Second Amendment rights are now so eager to preserve much of that status quo in the wake of Heller.

Posted by: Doug B. | Jul 18, 2008 3:17:02 AM

Doug, "people they may not like" is not a fair characterization of Eugene's position on this issue. There is a world of difference between saying that someone should not have equal rights because of some kind of animus toward that person's group and saying that a person has lost a right by his individual choice to violate a law that society deems important enough to make its violation a felony. All regular readers of this blog know that you disagree with the latter position, but the vague implication that it is somehow equivalent to group animus (such as the original Bill of Rights' limitation of the right to bear arms to Protestants) is uncalled for.

Karl, no, this is a really bad candidate for GVR or per curiam. Such dispositions are generally for decisions that are contrary to existing, fairly specific Supreme Court precedent, not those that merely decline to extend general principles in precedent further. Whatever one may say about this decision, it certainly does not fit in the summary disposition category.

Posted by: Kent Scheidegger | Jul 18, 2008 9:37:05 AM

On rereading, my description of the category of cases suitable for GVR was a bit too narrow. "Grant, vacate, and remand" orders are also used extensively when a Supreme Court decision subsequent to the Court of Appeals' decision changes the legal landscape and at least arguably requires a different result. That's not the case here, where the Court of Appeals' decision is after Heller and takes it into consideration. Whether that consideration is correct is an issue to be briefed and argued in full if the Court grants certiorari at all.

Posted by: Kent Scheidegger | Jul 18, 2008 10:16:02 AM

Kent, you raise a wonderful conceptual issue that I may pursue in later posts, but I want some clarification first: do you think it is fair and just to be persistently biased against anyone and everyone who has COMMITTED a felony, or just against those who have been formally CONVICTED of a felony?

As we both know well, lots and lots of people make an "individual choice" to commit felonies, but do not ultimately get convicted as a result of their criminal behavior. (I believe that both our current and former Presidents fall into this category: Clinton, lied under oath and perhaps committed other (sex-related) crimes; Bush, drunk drove and perhaps committed other (drug-related) crimes.)

My chief concern is really that we use only CONVICTION of a felony, rather than the COMMISSION of a felony, as the justification for legal discrimination and group bias. Given my (justified?) belief that money and power have a profound impact on which persons get convicted among a much larger number of persons who commit felonies, I am principally complaining about the inequity of our bias being concentrated on ONLY the convicted, rather than on the larger universe of true offenders.

Does this make sense? Can you clarify if you are really endorsing and are comfortable with group bias against ALL of those who make an "individual choice to violate a law that society deems important enough to make its violation a felony"? Or are you just advocating group bias against those who have been formally convicted of such a violation?

Posted by: Doug B. | Jul 18, 2008 10:40:07 AM

"If you outlaw guns, only outlaws will have guns."

This has been the NRA mantra for a long while and the NRA supported various mandatory minimum sentences for felons using guns. Since one of the basic principle arguments for gun rights was self protection against criminals, the NRA was obligated to this position. The irony is that the other basic reason for gun rights was the protection against government tyranny. The NRA might be the first to support the loading of criminals onto trains to U.S. concentration camps.

So take their rights, not mine, as long been the position of the NRA.

Posted by: George | Jul 18, 2008 12:14:37 PM

I have one issue with this post in regard to Prof. Volohk's comments on this case. He merely stated that the 9th circuit correctly applied Heller, which is very likely true. There has been plenty of other commentary on whether Heller was correct to make such a limited holding, especially without any discussion to back up the regulations that were not to be considered in doubt.

As for your comments regarding commission vs. conviction, while I would not in theory have a problem extending whatever limitations are allowed on felons to those who actually commit felonies, conviction is the only legal basis we have for taking that measurement.

Posted by: Soronel Haetir | Jul 18, 2008 9:41:00 PM

Doug, as noted in my previous comment, I don't see this as a "group bias" issue at all. As that term is generally used in American law and society, it implies assuming some characteristic merely from a person's membership in a group. In this case, the characteristic is an adjudicated fact actually determined on an individual basis.

If you are asking whether I favor a permanent revocation of gun rights for any felony as a matter of policy, the answer is no. But that is very different from the constitutional question. I read someplace recently, "failure to distinguish ... policy arguments and constitutional claims ... gets my legal-process goat...." Mine too.

Posted by: Kent Scheidegger | Jul 20, 2008 4:55:21 PM

A policy argument is just an inartfully made constitutional argument.

Posted by: Sr.cotus | Jul 23, 2008 11:38:15 AM

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