« Judge Posner (aka Hannah Remanda) finds nine things to hate about unreasonable sentence | Main | Debate and controversy over sentencing in the UK »

July 9, 2008

One (of many?) post-Heller motion to dismiss felon in possession federal indictment

A friend of the blog sent me a copy of a notable motion to dismiss a federal criminal indictment for felon in possession based on Heller. The motion is pretty straight-forward (and can be downloaded below), and the heart of the claim is simply stated in the motion:

Heller is the foundation for Barton’s request to dismiss the indictment because, as it is applied, Section 922(g) is unconstitutional.

What led to Barton’s indictment was the search of his home.  The search was conducted after the obtainment of a search warrant. Found inside and taken from Barton’s home were seven (7) pistols, three (3) shotguns, five (5) rifles and 44 pieces of a particular type of ammunition.

It is Barton’s position that he has the Second Amendment right to possess those items in his home and any prosecution based upon those items would violate his constitutional rights under the Second Amendment.

Download barton_motion_to_dismiss.pdf

Details about the defendant's criminal history or what prompter the search of his home do not appear in the motion.  Still, whatever the defendant's personal particulars, this kind of motion should present some conceptual challenge for anyone who takes seriously all of the Heller majority's assertions about "the inherent right of self-defense [being] central to the Second Amendment right" and the right's unique importance in "the home, where the need for defense of self, family, and property is most acute." 

I wonder if any of the many amici support Mr. Heller in the Supreme Court will likewise show an interest in supporting Mr. Barton in federal district court.  (As supporters of ACLU are often heard to say, it is easy to support the rights of people you like, but it takes a serious commitment to rights to support the rights of people you may not like.)

July 9, 2008 at 05:16 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference One (of many?) post-Heller motion to dismiss felon in possession federal indictment:


I remember reading an article about the lawyer in Heller and someone asked him if he thought bans on automatic weapons were constitutional. He said no, but he wasn't planning on being counsel on that case.

My own take on Heller is that it was just what I feared it would be: a right in theory followed by death by 1000 cuts. I'd be shocked if the plaintiff got much traction with his case. I'm 100% sure that the SC will uphold felon in possession laws as constitutional.

Posted by: Daniel | Jul 9, 2008 6:02:49 PM

I feel certain the 2d Amendment will be just the policy that those who exercise real power will want it to be. Those people who are deemed worthy will be protected by it; those who are not will not be. So what's really relevant here are facts we don't know: (1) what race is the defendant?; (2) what race was the victim of the felony, if any?; (3) what socioeconomic status is the defendant?; (4) what socioeconomic status was the victim, if any?; (5) what political and religious beliefs does the defendant hold?; (6) what education does the defendant have; and (7) what crimes was the defendant convicted of committing?

I think if we knew the answers to these questions, we would do pretty well in Vegas betting on the outcome, without any regard to that thing called law. I certainly won't be holding my breath for Heller supporters to line up in support. Unless, that is, the defendant is the right kind of defendant.

Posted by: DK | Jul 9, 2008 7:06:01 PM

We are just at the beginning of litigation to come for felons who want their 2A rights. It may take a year or two but non violent felons will be able to exercise their 2A rights. Just wait for the right case to come along. It is just a matter of time. Those of you who don't believe this are in denial. I for one support gun rights for people who have paid their debt to society.

Posted by: Heel | Jul 9, 2008 8:41:38 PM

His priors are: Possession with Intent to Deliver a Controlled Substance and Receiving Stolen Property (Firearms).

Presumably this has to be an "as applied" as there's no way a defendant is going to win a facial challenge. On that basis, I would think that given his prior conviction of receiving stolen firearms, that a restriction on his ownership of guns would survive a constitutional review regardless of the level of scrutiny. (channeling Scalia there, just for you DK)

Posted by: NewFedClerk | Jul 10, 2008 8:55:24 AM

Daniel, I think that the Heller opinion shows that former Chief Justice Warren Burger (mmmm Burger) knew exactly what he was talking about in saying that the individual rights theory of the Second Amendment was a "fraud on the American public." The Heller majority opinion definitely shows all of the signs of being a fraud on the American public because anyone with any common sense could see that for the elites of society, the right to bear arms ranges from amusement (hunting, target shooting) to a threat (of crime, terrorism, or even armed revolution by the lower classes) rather than a right to be cherished. Thus, it was almost inevitable that whether an individual right was recognized or not, very little practically would change - sure, the government may allow you to keep allow you to keep a gun in your home for protection now, but if you were a law abiding citizen you could have done that even in Washington, DC beforehand (sure, the police could have gotten a warrant, seized the gun, and arrested you, but if you were otherwise a law abiding citizen (especially one from the middle or upper classes, cf illegal drug use), they would have left you alone).

The dissent was at least honest - they were not pretending that there is a right that they do not actually want to see used by the people.

Posted by: Zack | Jul 10, 2008 10:11:43 AM

Heel, I believe that those who advocate for the restoration of gun rights for non-violent felons are much better directed towards focusing their energy towards the political branches. I don't think that the courts are going to help other than maybe providing a defense for a few sympathetic defendants.

I agree with you - there should be a process to get rights restored for non-violent felons. However, I do not see in wake of the dicta in Heller, the courts providing general relief in that area.

Posted by: Zack | Jul 10, 2008 10:21:26 AM

I disagree somewhat with those who say that the felon in possession statutes will be universally upheld. The establishment of a constitutional right to possess firearms for protection has certain consequences regarding the level of constitutional scrutiny to be applied. Scalia says it is something more than rational basis. The problem is that, for example, 922(g) allows exceptions to the prohibition for anti-trust and other business related offenses. Thus, allowing some felons to retain their Constitutional rights and prohibiting others faces some substantial challenges under any other level of scrutiny above rational basis. I agree that the Congress may be able to draft a statute that will pass constitutional muster, however, the current version of the statute likely cannot.

Posted by: Andrew Banzhoff | Jul 10, 2008 3:32:13 PM

During WWII a japanese general was asked, why, not invade america's mainland? He said he would not because there was a gun behind every blade of grass. That incident points to the fact that the people, then at that moment, were the militia, exactly as the founders intended. In my opinion "A well regulated militia" should mean that the authorities should know that you are armed. The founders knew that when a town became armed no one is going to break into your home.
and the authorities are less abusive of your rights. They knew that the people and militia are one and the same, as the japanese general already knew, but some judges don't. Why do you think they added "being necesary to a free state"
Why was the right for the people to armed linked directly to being a free state? Did they know something you and I don't?
Ben Judea

Posted by: Abraham Ben Judea | Jul 19, 2008 7:42:38 PM

i called on motion still no ruling

Posted by: larry | Oct 6, 2008 3:12:52 PM

Some new updates are available at http://newfileengine.com/

Posted by: relax | Oct 23, 2008 3:50:10 PM

No over rapidshare crawlers can be compared with Megauploadfiles.com. megaupload.name is a best megaupload search engine.

Posted by: homa | Oct 30, 2008 10:25:10 AM

My name is George and I am a convicted felon/parolee/attorney in N.C. Convictions were for non-violent offenses in 1967 and 1972. At the time of my convictions, N.C. law provided for a 5 yr. disqualification from owning/possessing handguns. At the end of the 5 yr. period, my rights under state law were automatically restored, but I still had to obtain a waiver of the federal disqualification from ATF, which I received in 1980. Thereafter, I obtained permits to buy pistols from 3 different sheriffs, and in fact purchased 3 pistols. In 1995, N.C. amended its Felony Firearms Act to provide that anyone ever convicted of a felony was permanently banned from owning a firearm. In 1996, I applied for and was granted a Pardon of Forgiveness from the governor of N.C., which was conditioned upon my remaining of good behavior. This pardon became known as a "Conditional Pardon", and has been interpreted to mean that all rights were restored EXCEPT the right to own/possess firearms. In 2005, I applied to N.C. Governor Mike Easley (former prosecutor) to amend my pardon to "unconditional". The pardon committee recommended favorable action. Nonetheless, Gov. Easley allowed the request to die by simply not acting upon it prior to the end of his term on 1/10/09. Currently, I am considering a motion in the original court proceedings seeking to set aside my guilty pleas based upon the fact that a permanent firearm disqualification was not a known consequence of my pleas. Any thoughts or ideas for such motion would be greatly appreciated.

Posted by: George H. Whitaker | Jan 16, 2009 11:46:20 AM

Thanks! Very Interesting! Great Job! Great Blog!

Posted by: מוסך מיצובישי | Jan 6, 2011 6:28:19 AM

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