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October 6, 2008

Still more proof that federal courts have no real interest in gun rights

350pxnorinco_sksI am not especially surprised that the Second Amendment ruling in Heller has not changed the extreme sentences being handed out for federal gun possession crimes in federal courts.  And yet I cannot help but note some of the disturbing cases that still get summary treatment despite Heller's supposedly strong embrace of an individual's right to keep and bear arms.

Specifically, consider the unpublished per curiam opinion today from an Eighth Circuit panel in US v. Smith, No. 08-2043 (8th Cir. Oct. 6, 2008) (available here).  Though the details are sketchy from the opinion, it appears that the defendant was acquitted of various gun possession charges at trial, but still was convicted of one count of being a felon-in-possession of a firearm.  (The firearm in question is a popular hunting rifle, the Norinco SKS pictured above.  Notably, the Smith opinion gets the name of the rifle wrong, calling it a Norico SKS.)

For the crime of possession a popular hunting rifle, the defendant in Smith gets a sentence of more than eight years in federal prison.  Of course, Mr. Smith is surely a bad dude, since we know he has a felony record, and that must have been a long record in order to have resulted in an applicable guideline sentencing range of 100 to 125 months.  Still, according to Smith opinion, the defendant did have some mitigating circumstances going for him.  Moreover, as I keep wanting to believe, if there really is a serious commitment to Second Amendment rights, there should be some constitutional concerns about sending someone to prison for nearly a decade simply for possessing a hunting rifle.  But apparently not, since the Eighth Circuit panel summarily affirms the defendant's sentence in Smith.

Some related posts (written both before and after the Supreme Court's opinion in Heller)::

October 6, 2008 at 12:59 PM | Permalink


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While Heller may have been a victory for gun rights, I think you mischaracterize it when you say that it is a strong pro-rights ruling. It did very nearly the minimum possible under the circumstances. While the criminal arena is going to get attention, I believe it is going to lag far behind other issues such as incorporation and the sorts of arbitrary and capricious regulations like those in NYC.

Posted by: Soronel Haetir | Oct 6, 2008 1:19:16 PM

I agree, Soronel, that the incorporation question is drawing the most attention from pro-gun groups these days. But I do not know how one can read Heller as anything but a pro-rights ruling: it said there was an enforceable individual Second Amendment right AND it said that gun restrictions have to be subject to more than just rational basis review.

I suppose a stronger ruling would have demanded strict scrutiny review, though I think that's essentially what the Court applied in Heller. Of course, the fact that lower courts do not want to enforce this right seriously comes as no surprise. Indeed, lower courts are still resisting application of the Sixth Amendment rights recognized in Blakely and Apprendi, and those rights are far less controversial than gun rights.

Posted by: Doug B. | Oct 6, 2008 1:29:14 PM

Prof. Berman,

Other than the briefs in the Lett case, have you written anything spelling out the argument that Heller/the Second Amendment should affect laws criminalizing possession by felons of firearms?

I think I understand the general argument, but in light of the following passage from Heller, it's not hard to see why cursorily-briefed Heller-based challenges to felon-in-possession convictions and sentences often fail:

===begin quote:===
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[FN26]

FN26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
=====end quote (emphasis added)=======

Perhaps the lower courts might be receptive to a well-argued challenge to a specific conviction/sentence, where the person making the challenge spells out exactly why the reasoning of Heller is on his side.

From the few briefs I've been able to examine so far, however, I haven't seen that sort of argument. Instead, what I've seen is the cursory argument that Heller recognized an individual constitutional right to keep and bear arms, so therefore it must be unconstitutional to criminalize possession of firearms...

In principle, the success or failure of an argument shouldn't depend much on the quality of the lawyering, but on this issue I think a fair amount of homework is required.

...either that or a judge with a scholarly bent, a lot of time on his hands, and sympathy toward your views.

Posted by: | Oct 6, 2008 3:33:43 PM

Guns are deffinetly a touchy subject, its really hard to create a law for something as such because useally the law only effects those people who follow it and not the crimminals that usually do not.

Posted by: Mr. Hunting Scopes | Mar 21, 2009 9:56:18 AM

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