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February 24, 2009

Even the Chief and Justice Scalia are content to damn gun possession with faint praise

I have now read the Supreme Court's work in the Hayes gun possession case, and it confirms my sense that none of the Justices (even those who championed individual Second Amendment rights in Heller)have any interest in giving real force or even serious attention to the constitutional right to gun possession in the home.  Consider first this passage from the majority opinion in Hayes, authored by Justice Ginsburg and joined by Justices Alito and Kennedy:

Practical considerations strongly support our [broad interpretation of this federal criminal statute prohibiting gun possession by certain persons].  Existing felon-in-possession laws, Congress recognized, were not keeping firearms out of the hands of domestic abusers, because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.” 142 Cong.Rec. 22985 (1996) (statement of Sen. Lautenberg).  By extending the federal firearm prohibition to persons convicted of “misdemeanor crime[s] of domestic violence,” proponents of §922(g)(9) sought to “close this dangerous loophole.” Id., at 22986.

Construing §922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress’ manifest purpose.  Firearms and domestic strife are a potentially deadly combination nationwide.  See, e.g., Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae 8–15....

I highlight here key sentences because they reveal the willingness of a majority of the Supreme Court, including two of the Justices in the majority in Heller, to embrace and endorse assertions by proponents of broad gun bans and by the Brady Center as to just when certain types of firearm possession are sufficiently "dangerous" and "potentially deadly" to obviate any apparent constitutional concerns with using federal criminal prohibitions to restrict broadly any gun possession in the home by certain persons.

Perhaps even more telling, however, are the punches pulled by even Chief Justice Roberts in his closing statements in his Hayes dissent (which was joined by the surprisingly silent Justice Scalia, author of Heller majority opinion):

It cannot fairly be said here that the [statutory] text [prohibiting prohibiting gun possession by certain persons] “clearly warrants” the counter-intuitive conclusion that a “crime of domestic violence” need not have domestic violence as an element.  That leaves the majority’s arguments about legislative history and statutory purpose.  This is not the “rare” case in which such grounds provide “fair warning,” especially given that there is nothing wrong with the conduct punished — possessing a firearm — if the prior misdemeanor is not covered by the statute.

If the rule of lenity means anything, it is that an individual should not go to jail for failing to conduct a 50-state survey or comb through obscure legislative history.  Ten years in jail is too much to hinge on the will-o’-the-wisp of statutory meaning pursued by the majority.

I highlight here a key phrase that sure seems to damn "possessing a firearm" with faint praise.  Note that the Chief says merely that "there is nothing wrong with the conduct" of possessing a firearm.  In the wake of Heller, it is telling that he does not say instead that "there is a provision of the Constitution that protects an individual right to engage in the conduct" of possessing a firearm in the home for self-protection.  Moreover, in light of Heller, wouldn't reference to the Second Amendment have been appropriate at the close of this dissent?  Why didn't the Chief (or Justice Scalia) add something like this:

If the Second Amendment and Heller means anything, it is that an individual should not forever lose his right to possess a gun just because he may have long ago pled guilty to a misdemeanor that the state now says makes him too dangerous to retain his constitutional right to personal self-defense in the home.  Ten years in jail is too much to threaten on the will-o’-the-wisp of potential misdemeanor prosecutions secured by states that might be eager to pursue back-door limits on who can exercise Second Amendment rights.

Especially in light of the disrespect Heller has been given in so many other criminal justice settings, I am not at all surprised with the outcome in Hayes.  I am troubled, however, that all the Justices seem content to hope that nobody will notice their gutting of Heller is the case is simply not mentioned.  And I will be further troubled if the gun rights community fails to take even their favorite Justices to task for trying to sweep these issues under the statutory interpretation rug.

Some related Second Amendment posts:

UPDATE:  I see Tony Mauro in this coverage of the Hayes ruling has this money quote from the folks at the Brady Center:

The Brady Center to Prevent Gun Violence applauded the decision. "In its first gun case since the landmark Hellerdecision, the Court wisely upheld this reasonable restriction, said center president Paul Helmke. "Today's ruling is the right one for victims of domestic abuse and to protect law enforcement officers who are our first responders to domestic violence incidents."

Similarly, this coverage of Hayes from The Hill has various anti-gun advocates commenting that this ruling shows Heller does not mean a hell of a lot:

Gun control advocates hailed the ruling as a good sign following the Court's decision in District of Columbia v. Heller, a 2008 decision that defined the Second Amendment as covering an individual's right to possess weapons.... "That's a good sign that Heller is the limited ruling we thought it was," said Daniel Vice, a senior attorney at the Brady Center to Prevent Gun Violence.

“Today, the Supreme Court sided with abused women and children and against the gun lobby,” said Sen. Frank Lautenberg (D-N.J.), a gun control advocate and the author of the original amendment. “Today's decision means we can continue keeping guns out of dangerous hands and saving innocent lives.”

Gun control advocates spun the decision as a blow to gun rights groups. The National Rifle Association and major gun rights backers in Congress did not immediately comment for this story.

February 24, 2009 at 01:12 PM | Permalink


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Note that the Chief says merely that "there is nothing wrong with the conduct" of possessing a firearm. In the wake of Heller, it is telling that he does not say instead that "there is a provision of the Constitution that protects an individual right to engage in the conduct" of possessing a firearm in the home for self-protection.

Looks like a new high water mark for farfetched posts about the Second Amendment.

Posted by: ab | Feb 24, 2009 1:51:50 PM

I wonder what the Chief and Scalia are getting (or have already received) in return for not pointing out the elephant in the room. I smell a little judicial horse-trading.

Posted by: Anon | Feb 24, 2009 2:57:15 PM

Would you feel the same, ab, if the issue in Hayes was whether persons who committed certain misdemeanors had a right to go to church or a right to author a book without being subject to federal criminal prosecution? Should/would the Justices in a parallel criminal prosecution setting talk about safeguarding First Amendment rights to free exercise and free speech --- or just say that there is nothing wrong with going to church or writing a book?

My point is that all the Justices ONLY talk a good game about gun rights when it serves their limited interests (as in Heller), but then are readily dismissive about the importance of gun possession when it doesn't serve their interests (as in Hayes). To me, this shows that they care about something quite distinct from gun rights, though what they actually care about other than just stirring the political pot escapes me.

Posted by: Doug B. | Feb 24, 2009 3:02:36 PM

Doug, are you a law professor? For reasons that should be obvious, the government has the power to regulate guns and that includes the ability to restrict ownership of a weapon by certain people (how far that ability goes is another issue). The government is without power to regulate church attendance or free speech. That explains the different treatment.

Posted by: federalist | Feb 24, 2009 3:22:26 PM

The government is without power to regulate free speech? So I CAN yell "fire" in a crowded theatre? Who knew?

Posted by: AFPD | Feb 24, 2009 3:44:38 PM

Oh yes, AFPD, and it can regulate libel, and it can regulate commercial speech. By using the term "free speech", I was hoping to avoid such muddying things. The point is, and your snark to the contrary doesn't change it, that guns and free speech are different, and anyone with half a brain knows this.

Posted by: federalist | Feb 24, 2009 4:10:37 PM

I'm just a common citizen who is watching the Constitution being interpreted more on political expediency than on principle. As a matter of fact, the government is moving to censor free speech in church with its hate crime approach to church doctrine. Try preaching about the practice of homosexuality as anathema in Judeo-Christian scripture and see what happens. Wait another 10 years and see an even more protective and strident response. The US government has no right to influence doctrine through any of its available tactics. Separation of Church and State works both to protect citizens from a state sponsored religion as well as to protect churches from government intrusion in belief and conscience.
The 2nd Amendment isn't just about protecting your home from the boogey man, it's more about protecting your liberties from the bastards who pose as the heirs of our Founding Fathers. Our liberties flow from the Christian ideal of the value of the individual. The move to bigger government, for "social Justice" is a move to collectivism and the minimization of the role of the individual. That's why Christianity must be a target for the left. Christian principle stands in stark contrast to leftist ideology. Individual gun ownership makes it more difficult for oligarchs to impose their will on the non-apathetic citizen. The assaults on the 2nd amendment are just the prologue to an advancing assault on all of our Constitutional rights.

Posted by: Otrere | Feb 24, 2009 4:16:07 PM

Your biases are showing, federalist, especially since I thought the whole point of Heller was to clarify that the Constitution places limits on government power to criminalize gun possession. And, critically, Justice Scalia in Heller repeatedly compared the nature/scope of Second Amendment rights to the nature/scope of First Amendment rights.

Your point seems to be that there are "obvious" differences between the constitutional limits created by the First and Second Amendments. (Or, as you state in a subsequent comment, "guns and free speech are different.") For the benefit of DC and other localities eager to get back to the business of banning guns whenever and wherever they want to, I hope you will detail the obvious differences and when a government authority can (and cannot) tell its citizens to get rid of their guns or face criminal prosecution.

Posted by: Doug B. | Feb 24, 2009 4:20:45 PM

Yes, federalist, Doug Berman is a law professor, and your snark to the contrary doesn't change that.

And anyone with half a brain knows that the Second Amendment, no less than the First, bestows important rights. Different rights of course, but not less important, which is the law professor's point. What is yours exactly?

Posted by: AFPD | Feb 24, 2009 4:47:26 PM

Saying "free speech" is like saying "lawful gun possession". The question is not whether we will have free speech or lawful gun possession; those terms by themselves are meaningless. The question is *what* speech and gun possession will be included within the categories so designated.

I think Doug is saying that the answer as to speech seems to be "most restrictions on speech will be invalid, unless the Government meets a very high standard to show that other societal values require such restrictions", whereas the developing answer as to guns seems to be "most restrictions on guns will be valid, so long as they don't amount to an outright ban". And this seems to indicate that the Court is not applying the same level of scrutiny/protectiveness to Second Amendment rights as to First Amendment rights.

On the other hand, I am not sure this is a problem. It may just reflect a recognition that the baseline balancing of individual versus societal rights is categorically different in Second Amendment cases. With the First Amendment, there is a strong presumption that the value of unconstrained speech will trump other concerns, but maybe, given the particular harms associated with firearms, the Second Amendment doesn't justify such a strong, one-way presumption. After all, a guy ranting on the street corner about the New World Order may be slightly intimidating, but a guy waving a gun on the corner while ranting about the New World Order is a different story.

On the third hand, however, leaving aside the Second Amendment, I am deeply troubled that the government can so easily, and irrevocably, deprive its citizens of *any liberty*, whether or not specifically protected by the Bill of Rights, the way it has deprived them of gun rights under 18 U.S.C. s. 922. That is, based on vaguely worded statutes and vastly overinclusive categories like dishonorable discharge from the military, having the status of "an unlawful user" of controlled substances, or having been convicted of a misdemeanor statistically likely to correlate with domestic abuse, and with (as far as I know) no mechanism for ever demonstrating rehabilitation and reinstating one's liberty. If your replace "possess a firearm" in the statute with "own a motorcycle" or "drive a car," the due process problems are no less concerning.

Posted by: Observer | Feb 24, 2009 4:50:28 PM

My biases are showing? Are you kidding? Guns and free speech are qualitatively different from the standpoint of the government's ability to regulate. And all but the most extreme of Second Amendment absolutists would agree. Do you disagree?

Accepting this reality is not denigrating the Second Amendment, nor is it countenancing a return to nonsense like DC's gun ban.

And I agree with you--this policy of taking away a misdemeanant's right to keep and bear arms is certainly problematic from a policy standpoint. But that the Court didn't deal with it here doesn't justify your rant. You look silly, not because of the fervent nature of your post, but because your argument really isn't that cogent.

Posted by: federalist | Feb 24, 2009 4:55:41 PM

No one was really arguing that Congress doesn't have the authority to bar someone with a domestic violence conviction under the Second Amendment - or that it is not good policy. That situation appears to be fatal to the defendants case in this instance.

What is troublesome is that a person can get convicted of a domestic violence misdemeanor in absentia - or plead guilty or get found guilty of such a crime in what is generally a court not of record where the factual situation may be murky - then face 10 years in a federal prison if they are in possession of a gun. Leaving aside the issue of domestic violence and guns (again - no one argues that barring wife beaters from having guns is a bad thing), there is a real troubling situation where someone could face a long prison term due to doing otherwise legal conduct (and indeed protected by the Constitution) with minimum due process.

Posted by: Zack | Feb 24, 2009 5:23:02 PM

"minimum due process"? Are you kidding Zack? What due process has been denied?

Observer, isn't that my point? I didn't want to get into a huge debate about the contours of each right (and the converse, governmental power)--I just wanted to point out the obvious, that speech and gun ownership are different. And that Doug's rant didn't take that into account.

AFPD, my post wasn't snark, and my point is simple--you cannot point to this case, scream Heller and then accuse the Court of intellectual dishonesty because the First Amendment right is broader than the Second Amendment right. And genius, how is accepting limitations on the right necessarily giving the right short shrift?

The points about the desirability of this scheme are well-taken. Very well-taken. But flying off the handle on some rant doesn't make the point very well.

Posted by: federalist | Feb 24, 2009 5:54:20 PM

"Guns and free speech are qualitatively different from the standpoint of the government's ability to regulate. And all but the most extreme of Second Amendment absolutists would agree. Do you disagree?"

I disagree. It is certainly true that the Supreme Court does as a matter of legal fact treat them as qualitatively different, so you are on solid ground there. But that doesn't mean that they are in fact qualitatively different beasts in reality. Personally, I find the justifications for treating them differently unpersuasive. So I don't think they should be treated as qualitatively different.

Posted by: Daniel | Feb 24, 2009 7:08:57 PM

Can a state prohibit a felon from exercising his fundamental right to vote?

Posted by: Anonymiss | Feb 24, 2009 7:22:03 PM

Well, most people think that there should be some minimally intrusive participation of the gov't in gun ownership (licensing, bar for insane persons, felons); most people think that any intrusion of the gov't in the right to speak about most things is appalling.

You may disagree, but I don;t think it's fair to say that because I hold that reasonable point of view that I am somehow only giving lip service to the Second Amendment. That was the thrust of Doug's hyperbolic post, and i was commenting on that.

Posted by: federalist | Feb 24, 2009 7:32:12 PM

Federalist, you have a powerful mind, and I often learn much from your posts, even if I disagree with them. However, your arguments would be far more persuasive were you to treat other bloggers with respect. Sarcastic and snide comments such as "are you a professor?" or "genius" greatly detract from your posts. That's a shame. I urge you to reflect on your manner of responding. You will become a far more forceful and respected commentator.

Posted by: Michael R. Levine | Feb 24, 2009 8:26:06 PM

Point taken, Mr. Levine. I generally respond in kind to how I am responded to. Prof. Berman has impugned my integrity in the past, hence the slash and burn of my recent posts.

And sometimes the boxer in me cannot resist an exposed chin.

Posted by: federalist | Feb 24, 2009 9:07:11 PM

Federalist, I am still looking for you to explain and justify your bold assertion that "the First Amendment right is broader than the Second Amendment right." Saying merely that "most people think so" is not stating a legal principle, and that is the core of my concern. I am looking for legal principles to explain the scope and reach of Heller and the Second Amendment. Perhaps I should be a pure realist and conclude simply that the scope and reach of the Second Amendment is whatever the Supreme Court cares to say it is. But, as a law professor, I keep hoping I can and should try to teach my students that there is more to hard constitutional law beyond just the ability to count to five.

And my post is hardly hyberbole --- it is just an accurate observation that none of the Justices even mention Heller and the Second Amendment even though a robust conception of constitutional gun rights ought to raise serious questions about the legitimacy of saying certain types of misdemeanants can be subject to criminal prosecution for merely possessing a gun in their home.

I share your instinct that the Second Amendment should not significantly limit democratic efforts to regulate gun possession. But Heller seems to hold that the Second Amendment DOES significantly limit efforts to regulate gun possession. So the question is what might be those limits, and this question is not even considered in Hayes. And that's my point. The very fact that SCOTUS dodges this question reveals that broad regulation of simple gun possession is seen as readily justified and justifiable.

Posted by: Doug B. | Feb 24, 2009 9:21:40 PM

What's all this talk about "regulation" of firearms? This is criminalization. Criminalization that impinges directly on the exercise of a recognized constitutional right. How ironic that federalist, a defender of Heller, here sophistically defends its practical evisceration as well.

Observer's comment is on the money.

Posted by: DK | Feb 24, 2009 9:55:57 PM

Good grief. The thrust of what I am saying is that one can accept restrictions on a right without necessarily denigrating said right. (note the word "necessarily"). Your post implies that Scalia and Roberts are making it up as they go along, and that conclusion simply is not warranted. My response is, gee Doug, acceptance that the government can restrict gun ownership to the law-abiding does not mean that they are denigrating the right. One can fiercely believe in the franchise, yet accept restrictions on the franchise to the law-abiding, n'est-ce pas?

On some level, of course, you are right. You could simply do away with the right by making any trivial status disqualifying, but not dealing with Heller in a case involving domestic violence, I don't think, justifies the charge that they are simply following their predilections.

I think you mischaracterize my posts. I do think that the Second Amendment does place a significant limitation on the federal government from abridging the right to keep and bear arms. I don't know what the contours are, as I am not really all that familiar with this area of the law. And I am also not sure whether Heller should be applied to the states through selective incorporation. (A lot of language in Heller suggests that it should--how can a right be fundamental, but not be protected against state encroachment.)

As for the First vs. Second, I think that this is a side issue. Remember, when I started out, my point was really that the government has very little power to regulate normal everyday speech. Thus, as a practical matter, government involvement in speech is necessarily going to be limited greatly. This makes speech rights more expansive than gun possession rights, especially if you believe, as some might, that the right to keep and bear arms is limited to your castle. Therefore, where a restriction on some etherial right to have a gun is accepted, it doesn't mean that the right is being blown off.

The upshot, of course, is that the Supreme Court's pronouncement is going to be freighted with the practical reality that gun possession and opening one's mouth are two different things. Both fundamental rights, of course, but different in how they will be exercised. Look at the right to counsel, sacred that it is. The government can require that you have a government licensed lawyer etc. etc. No one seriously disputes that the right to counsel is lower on the totem pole because of this.

Heller just came out. We're waiting to see how it's all going to play out. No one thought, when Strickland was decided, that it would have metastized into what it is today. I don't think Hayes creates a "sky is falling" problem that you see here, namely that law is basically the rule of 5. The Nine-Headed Caesar lives, but Hayes is not his handiwork.

It is possible, of course, to critique the Court. Let's face it, the Second Amendment is written in some pretty expansive language. Yet, the Court's tight-fistedness is interesting to juxtapose with expansive interpretations of other Amendments. (Scalia or Roberts are hardly subject to that criticism, though.) Perhaps, if you want to make the case that they are just making it up, then use that line of reasoning, rather than shrieking over, quelle surprise, a Court decision that assumes that one who engages in domestic violence can be deemed unable to pack heat when the very case you point to also states that the gov't can regulate in such a manner. It's like pointing to a court's upholding of a felon-disenfranchisement law (something, of course, specifically contemplated in the Constitution) and whining that the court is blowing off Equal Protection.

Now Doug, if you can just explain how the urban discount fits in with your Obamaian view that the criminal justice system is "just us".

Posted by: federalist | Feb 24, 2009 10:17:08 PM

Yes federalist - minimal due process. I've represented persons charged with domestic violent misdemeanors. At least in Virginia, the cases are not done on the record, thus there will be no factual recordation other than the fact of the conviction. Generally the only evidence available in such cases comes from the testimony of someone who might have large incentives to lie (such as advantages in a child custody battle or divorce settlement) and little chance of being caught (there is a reason why Juvenile & Domestic Relations Courts are often nicknamed "the perjury palace"). Not all domestic violence cases are created equally. One guy in Virginia got a domestic violence conviction for throwing a teddy bear (yes, a stuffed animal) at his live in girlfriend. If 20 years from now, that guy is found with a gun - 10 years in a federal prison.

BTW, in Virginia, homosexual relationships are not covered under the domestic violence laws - thus, a homosexual who abuses his or her partner will not be subject to the gun restriction. That fact alone should show how arbitrary the system is.

Posted by: Zack | Feb 26, 2009 10:49:21 AM

Zack, I read your post, and the only reaction I have is "so what"? I get the unfairness. And I think the law was appallingly cruel--it ruined careers etc.

But the argument that the founders are turning in their graves because their obsession with procedure is being negated, I just think silly and that's on top of the silliness in the post itself.

And thanks for the tip--people lie in domestic violence cases . . . . I never would have known. Any more enlightenment for me? You know, I need a refresher course about WWI and the Franco-Prussian War, maybe you can provide that for me too while you're at it.

Pardon the sharpness, but I cannot help but get the feeling that you are using me as a straw man. I don't defend the conviction. All I am saying is that the arguments set forth in the post and the comments are just silly. I get that this is crappy. I get it.

DK, I am not defending this policy. Not at all. I am just calling into question the argument. How hard is that to grasp.

And you know what, you can accuse me of a lot of things--sophistry is not one of them.

Posted by: federalist | Feb 26, 2009 2:21:12 PM

No offense to most of you reading this, but when the founders decided to codify future generations rights, they knew (9th amendment proves it) that some smarty-pants lawyers would figure out a way to take away our rights.
We've been fighting in the wrong place ever since.(In the courtroom rather than in the streets.)

Posted by: Robert Hale | Apr 30, 2010 7:25:55 PM

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