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February 18, 2009
Seventh Circuit gives short shrift to drug dealer's Heller claim
Though the result is not at all surprising, the Seventh Circuit's decision today discussing Heller is still notable for how (and how quickly) it disposes of a drug dealer's effort to claim that his home gun possession was constitutionally protected. Here is the Heller discussion in the ruling (per Judge Easterbrook) in US v. Jackson, No. 07-3849 (7th Cir. Feb. 18, 2009) (available here):
The Court said in Heller that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection. Jackson was distributing illegal drugs (cocaine and unlicensed dextromethorphan hydrobromide tablets) out of his home. The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash. Jackson says that he lived in a dangerous neighborhood and wanted to protect himself from burglars and other marauders. That may be so, but his decision to operate an illegal home business also matters. Suppose a federal statute said: “Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there.” Such a statute would be valid, as Jackson’s lawyer conceded. And if Congress may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns. The statements “if you have a gun, you can’t sell cocaine” and “if you sell cocaine, you can’t have a gun” are identical.
Some related Second Amendment posts:
- What if no lower court judges participate in a "Second Amendment Revolution"
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- An argument that the Second Amendment and Heller should help Weldon Angelos
- Starting to make the Second Amendment case for Plaxico Buress
- "The New Second Amendment: A Bark Worse Than Its Right"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
UPDATE: Eugene Volokh astutely discusses this Seventh Circuit opinion in this post.
February 18, 2009 at 03:22 PM | Permalink
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Comments
I'm not sure that last part makes sense. "If you have a gun, you can't sell cocaine" may only work because you still can't sell cocaine even if you *don't* "have a gun". That is, *nobody* can legally sell cocaine.
If cocaine possession/distribution/sale was generally legal, but a statute made it illegal only for gun possessors, I think there would be a serious question about whether that impermissibly infringed on a constitutional right.
So, I don't think those statements are "identical". In the latter statement, the disability (no gun) is essentially a forfeiture based on doing something that is illegal in all circumstances (selling cocaine). In the former statement, on the other hand, the disability (no cocaine) does not result from the possession of the gun (which is legal in most other circumstances). Rather, it arises from the generally applicable law, irrespective of gun possession.
I'm not saying the result is necessarily wrong, but I am not sure I am on board with the reasoning, at least based on this excerpt.
Posted by: Observer | Feb 18, 2009 8:21:33 PM
The statements “if you have a gun, you can’t sell cocaine” and “if you sell cocaine, you can’t have a gun” are identical.
They may be identical in effect, but not in construction.
The first sentence's "if" clause is superfluous. The second sentence's "if" clause is anything but.
Or put another way, in this supposed statute, whether gun possession makes cocaine possession illegal is ambiguous, since cocaine possession is already assumed to be illegal.
It would seem equivalent for Congress to say "Anyone who chooses to exercise their first amendment rights in their home is forbidden to sell illegal drugs there." And extending the opinion's logic, we have that if you sell cocaine, you can't exercise your first amendment rights. That would be absurd.
Ignoring these distinctions seems to ignore the key question entirely; in effect it simply circumvents any real consideration of to what extent Heller applies in these more difficult contexts.
(I have not read the full opinion.)
Posted by: Simon | Feb 18, 2009 8:53:32 PM
Like Observer said ... :)
Posted by: Simon | Feb 18, 2009 8:55:29 PM
All lawyers should be made to take and pass a course in logic. The statement: (1) If A then B is NOT identical to the statement: (2) If B then A. In fact statement (2) is the inverse of statement (1); they are NOT logically equivalent. For example: If you are a monkey then you are a primate is a true statement; however, If you are a primate then you are a monkey is a false statement since there are primates, such as humans, that are not monkeys.
The logical equivalent of statement (1) is its contrapositive If not B then not A; the logical equivalent of statement (2) is its contrapositive If not A then not B; which is the converse of statement (1). [They are not logically equivalent either.] These logical equivalents are taught using Venn Diagrams. All lawyers should learn logic, then such erroneous statements would be known by all other lawyers and judges to be false, and no one could get away with such faulty logic. This reasoning in a legal brief (motion, or order) fails miserably.
Posted by: layperson | Feb 19, 2009 1:26:41 PM
Further, If A then B means A implies B. When B is a universal, true statement, then A is not a necessary condition for B, and A does not imply B. B stands on its own. In this case B is "one may not keep or distribute illegal drugs from his [one's] home," which is a true statement by law. A does not imply it and is irrelevant to it. Jackson's lawyer should not have conceded that point; it is not reasonable by logic. The real question is if a gun may legally be possessed in the home for self-protection [and it is admitted that Jackson's risk of being robbed is greater than that of the general population], but it is illegal to possess a gun "in furtherance of" a drug-trafficing offense, then must the gun be identified and delegated to legal self-protection, or is any gun deemed not to be for legal self-protection but in furtherance of a drug-trafficking offense. This falls into the category of being illogical either way it is resolved as in the question of who shaves the barber when the rule is only those who cannot shave themselves must be shaved by the barber; if the barber can shave himself then he must shave himself and not be shaved by the barber; if the barber cannot shave himself then he must be shaved by the barber. How to resolve the delemma?
Posted by: layperson | Feb 19, 2009 2:19:23 PM
Further, If A then B means A implies B. Here B is a true statement irrelevant to A. That is what Simon is trying to articulate in his 1st post. The real question here is how to resolve the dilemma created by Heller that one has the right to possess a firearm in one's home for self-protection but one may not possess a firearm in furtherance of a drug-trafficking offense. Does the firearm have to be identified and reserved for self-protection? This dilemma is similar to the question of who shaves the barber when the rule is that only he who cannot shave himself must be shaved by the barber; if the barber can shave himself then he must do so and not be shaved by the barber, and if he cannot shave himself then he must be shaved by the barber. Either way there is a contradiction, as here.
Posted by: layperson | Feb 19, 2009 2:44:32 PM
In layperson's post of Feb.19, 2009, 2:19:23, line 2 replace "necessary" with "sufficient." Sorry.
A necessary condition of a statement must be satisfied for the statement to be true. Formally, a statement B is a necessary condition of a statement A if A implies B. For example, the ability to breathe is necessary to a human's survival. Likewise, for the whole numbers greater than two, being odd is necessary to being prime, since two is the only whole number that is both even and prime.
A sufficient condition is one that, if satisfied, assures the statement's truth. Formally, a statement A is a sufficient condition of a statement B if A implies B. Thus, jumping is sufficient to leave the ground, since an intrinsic element of the concept jumping is leaving the ground. A number's being divisible by 2 is sufficient for its being even.
If A implies B then A is sufficient and B is necessary, i.e. sufficient implies necessary; or If A then B is true means A is a sufficient condition for B and B is a necessary condition of A.
Posted by: layperson | Feb 19, 2009 3:05:48 PM
The point they are making is quite simple.“if you have a gun, you can’t sell cocaine” and “if you sell cocaine, you can’t have a gun"
All its saying is whether the gun is registerd and legal is irrelivant. Its still concidered to be an illegal firearm if your a drug dealer. all in all If your a drug dealer dont get caught with a gun.
most drug dealers carry guns to protect themselves from addicts and robbery.There for the aasumption is the gun was specifically purchased and used for that purpose (protection from the actions of his illegal activities)
Posted by: according to me | Nov 7, 2009 4:01:17 PM
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