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February 25, 2009

Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?

The failure of any Justice to even mention the Second Amendment or Heller or the statutory interpretation canon of constitutional doubt in Hayes (basics here and here) has me wondering how far jurisdictions can go in categorically criminalizing gun possession by certain types of persons. 

For example, can a jurisdiction interested in gun control (like DC and other cities) draw from Hayes the idea that it could and should categorically prohibit and criminalize gun possession by anyone and everyone ever convicted of any type of misdemeanor?   Could (and might) a jurisdiction criminalize gun possession by anyone guilty of a moving violation traffic offense or even by anyone with an arrest record?

For various reasons, there is good reason to believe that some jurisdictions will be eager to evade whatever constitutional limits on gun control emerges from Second Amendment or Heller.  I am blogging so much about Hayes in part because I think it helps create a ready blueprint for such evasion.

Other recent posts on the Hayes decision:

February 25, 2009 at 12:39 PM | Permalink


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Heller hasn't even been held to be applicable against the states yet.

Posted by: federalist | Feb 25, 2009 12:47:01 PM

Could Machiavelli have schemed up a better way to disarm the populace?

Posted by: the prince | Feb 25, 2009 1:22:54 PM

Maybe the Court is waiting for a better case with which to address incorporation???

Posted by: Anonymiss | Feb 25, 2009 2:52:50 PM

The Court will need to definitely decide whether the 2d Amend. applies to states and local governments. And a good vehicle to do so may not be far away. See http://www.scotusblog.com/wp/heller-sequels-move-along/

Also, sooner or later, the Court will also need to articulate a definitive standard of scrutiny (strict scrutiny, intermediate, rational basis, ect.) to review regulations of a person's second amendment right.

Further complicating this issue is whether and how far the 2d Amend. applies to gun possession outside of the home.

Posted by: DEJ | Feb 25, 2009 3:10:35 PM

"Maybe the Court is waiting for a better case with which to address incorporation?"

Like, for example, one where somebody has actually preserved and briefed the issue.

Posted by: Kent Scheidegger | Feb 25, 2009 3:19:09 PM

The threshold question is did the offender commit a crime? It doesn’t make any difference whether that crime was a felony or misdemeanor. Criminal offenders of all kinds have a greater risk of committing another crime than non-offenders.

Risk becomes an issue when it has been established that a person committed a crime. Of course that risk may change over time. With some offenders that risk may be great. As to others it is negligible. It seems to me that a categorical prohibition on gun possession is ridiculous. But it is sensible to forbid gun possession on a case-by-case basis, based on a risk assessment. I believe that the challenge in cases like this should be directed at the categorical prohibition, not the threshold crime.

Posted by: Tom McGee | Feb 25, 2009 5:46:50 PM

I guess its my californication education, but every since grade school i was told that felonies were different from misdemeanor crimes in the fact that felons had rights taken away and people that commit misdemeanors didn't.

Maybe it was just me, but the first time i noticed when felony/misdemeanor boundaries started to disappear was with the sex offender laws.

Now they seem to be moving into other areas of crime and punishment with the same philosophy.

Remember this saying?
" First they came for the criminals but I did not speak for I was not a criminal...Then they began to take the Jews...I did not speak up.I was not a Jew..Then they came for the trade unionists and I was not within the union and I did not speak out, They then came for the Catholics but I was not a Catholic I did not speak out. Then they came for the protestants and by then there was no one left to speak out..."

Posted by: MarkM | Feb 25, 2009 7:30:43 PM

Mark, criminal offenders of any kind do not have a right to be dangerous.

Posted by: Tom McGee | Feb 25, 2009 8:59:10 PM

of course they do Tom, they have a right to be dangerous, just don't have the right to violate another person's rights or to break any laws. If we don't have the right to be 'dangerous' we should put every person that turns 18 years old and go through every day of their lives and analyze it for dangerous 'redflags'. Then determine if they are acceptable to be in society.

Posted by: MarkM | Feb 25, 2009 9:51:34 PM

dang, ok i was doing two things at once and shouldn't have been.

If we dont have the right to be 'dangerous' then we should but every person that turns 18 years old on trial....

Posted by: MarkM | Feb 25, 2009 9:52:51 PM

further illustration that the misdemeanor/felony distinction makes no sense any more. In NC a person convicted of felonious littering (greater than 500 pounds) can't possess a gun, but someone convicted of misemeanor assault with a deadly weapon can.

bruce cunningham

Posted by: bruce cunningham | Feb 25, 2009 10:30:28 PM

I think that the Second Amendment Foundation's Amicus brief in Hayes recommends a good system for prohibtions of gun possession. Rather than using the crude felony/misdemeanor distinction (which as Bruce pointed out, can result in some absurd results - my favorite from Virginia law - if you threaten someone over a computer, it is a felony - but if you threaten them in person, it is a misdemeanor (even if you are brandishing a firearm)) - their recommended approach would be based on whether the prior offense suggests a higher degree of danger. Thus, a domestic violence conviction - or assault with a deadly weapon would even if classified as a misdemeanor result in a prohibition of gun ownership. Many of the non-violent felonies would not result in a permanent ban of gun ownership.

It is an interesting proposal - and seems like a more rational way to do things than the current system.

Posted by: Zack | Feb 26, 2009 10:16:00 AM

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