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July 8, 2008

The post-Heller litigation headaches (and judicial cut-backs) have begun

I am pleased to see that Eugene Volokh is tracking some early post-Heller rulings in lower courts, and he has this post spotlighting what appears to be the first ruling, Johnson v. United States, No. 1:07CV155, 2008 U.S. Dist. LEXIS 51148 (E.D. Mo. July 2, 2008), expressly rejecting a challenge to the federal felon-in-possession criminal prohibition. 

I am even more pleased to see that a number of commentors to Volokh's post recognize that the the ruling in Johnson is a bit too quick to rely on Heller dicta to rebuff the notion that broad felon-in-possession laws may be constitutionally problematic after Heller.  (On this front, I am pleased to see Glenn Reynolds here at Instapundit asserting his view that any felon who gets his "right to vote restored, ... should also get [his] right to own a gun back.")  Though the pro se defendant in Johnson is not the "ideal felon" to persue this issues, I am hopeful and somewhat optimistic that some good test cases will emerge in the weeks and months ahead.

Beyond the felon-in-possession issue, it is telling (though not really surprising) that all of the rulings noted by Eugene so far have rejected Second Amendment claims based on Heller.  As I have suggested in lots of prior posts, I expect that we will be seeing lots and lots of plausible post-Heller Second Amendment claims brought by all sorts of litigants, and lots and lots of (less plausible?) rejections of these claims by lower courts.

Some related posts (authored after Heller was decided):

Some related posts (authored before Heller was decided):

UPDATE:  I just noticed that Grits has this strong post adviocating restoring felon's gun rights, titled "Free speech, voting, other rights reinstated for ex-felons; after Heller, why not gun ownership?".  Here is how the post concludes:

Bad guys who want to hurt somebody don't abide by gun laws, anyway, so these statutes [prohibiting ex-cons from gun possession] by definition only influence the behavior of the law abiding.  Why not make restoration of gun rights simultaneous with the restoration of other constitutional rights when an offender's sentence is complete?  Wouldn't treating restoration of felon gun rights more like restoration of voting and other substantive rights be in keeping the with Supreme Court ruling in Heller?

July 8, 2008 at 06:47 PM | Permalink


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I agree that Johnson is not the one to challenge felon in possession, however I think that Barney Britt in Britt Vs North Carolina would be a great case for the SC.

Posted by: BS | Jul 9, 2008 7:44:02 AM

I'm just a Noise Engineer and a gun nut so I have no real impact on the courts

You comment "Yet if lower courts don't conscientiously follow Supreme Court precedent, where does their legitimacy come from"?

It seem the ligitimacy must come from the posibility of having the decision overturned on review. I will note that this hasn't slowed the 9th circus down.

Posted by: Roland Johnson | Jul 9, 2008 9:51:51 AM

I'm a lifelong NRA member, I have a CCW and, as my girl dscribes it, "an arsenel" of my own. But here's a news flash, if men who have demonstrated that they are violent or otherwise incapable of controlling their own actions--i.e., FELONS--become eligible to legally purchase firearms, the individual rights line of cases is going to be "revised" by a later court.

Note to the casual reader: The "Felons' rights" community would be just fine with an overturning of the Heller decision. Don't jump on this bandwagon if you value your rights.

Posted by: Some Guy | Jul 9, 2008 1:09:23 PM

@ Some Guy: Regarding the definition of "men who have demonstrated that they are violent or otherwise incapable of controlling their own actions" ... in Texas 70% of those entering state prisons each year are non-violent offenders. Our Legislature has created more than 2,300 separate felonies on the books. Eleven of them involve oysters. Do you really suppose all those crimes equally demonstrate the offender "incapable of controlling their own actions"?

Posted by: Gritsforbreakfast | Jul 9, 2008 3:43:01 PM

Some guy,
Would I be wrong to guess that you have a problem with the felons serving proudly in our armed services? You know the ones serving and defending our country? I don't know when but I would bet that non violent felons will regain the right to protect themselves with firearms. I am ok with this as long as they have paid their debt to society. You should be too.

Posted by: BS | Jul 9, 2008 4:11:30 PM

Very Interesting!
Great Job!
Great Blog!
Thanks Guys!

Posted by: מוסך בבאר שבע | Jan 6, 2011 6:39:46 AM

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