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June 19, 2009

First(?) significant(?) Second Amendment ruling favoring a federal criminal defendant

Thanks to this post by Eugene Volokh, titled "Rare (Partial) Victory in Second Amendment Case," I learned that earlier this week a federal district judge issued this brief opinion in US v. Engstrum, No. 2:08-CR-430 (D. Utah June 15, 2009), that rules in favor of a criminal defendant based on the Second Amendment.  Though Eugene calls this a "rare" victory, I think it is the first and so far only victory for a federal criminal defendant arguing that the Second Amendment should impact his federal criminal prosecution for a gun possession crime. 

The ruling in Engstrum is a nuanced and somewhat limited ruling (which is why it is described as just a "partial" victory for the defendant).  Despite its limits, I still think Engstrum is potentially significant for both legal and political reasons.  Here is how Eugene describes the ruling:

A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person).  The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

The comments to Eugene's post are as dynamic and nuanced as is the ruling in Engstrum, and I hope readers of this blog will add to the dialogue. 

Notably, the ruling concludes by providing that "the government and Defendant may submit briefs to the Court within ten days of the date of this Order, addressing: (1) the wording of the Court’s proposed jury instruction; and (2) the Court’s ruling on Defendant’s burden of production at trial."  Perhaps readers might even make some suggestions about what the government and the defendant ought to say in these briefs.

June 19, 2009 at 11:10 AM | Permalink


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I like the fact that the judge was smart enough to allow the jury to decide if he posed a threat of violence and if not they are ordered to aquit. It is just stupid to allow a misdemeanor to have the same effect as a felony.

Posted by: Anon | Jun 19, 2009 7:14:02 PM

Prof. Berman: I hope you find the dynamism and nuance you are looking for, below. Mr. First Amendment allows curse words, links to animal sex sites, illegal pharmacy messages, personalized death threats, anything goes. Try discussing the criminal cult enterprise and the rent seeking theory? Banned in 60 seconds, and up goes a nasty moderation policy statement (since modified, because the original was so bizarre).

The hunt is on for the productive male by the feminist lawyer and its male running dogs. These abuse charges are usually false use of the legal system by vengeful feminists to use the police and the courts to destroy the productive male.

Why on earth would male police and male judges be running dogs to the feminist all out attack on the productive male? Because the traditional patriarchal family competes for authority with central government, and all such competition must be destroyed. The destruction of the family and dependence on government program explains all racial disparities in social pathology. Abuse laws target black folks because they are more physically expressive, coming from American South culture. Their racially disparate impact is a constitutional tort. It awaits the Amendment ending all self-dealt, unlawful immunities, including the repeal of the Eleventh Amendment passed in a shady manner in a back room over a few days, after bond holders sued a state not their own, mistakenly expecting repayment of their senior loans.

Any legal utterance, until these feminist-racist male running dogs have been purged from all government positions, is self-dealing, central government promoting, lawyer lying feminist and racist propaganda garbage.

Posted by: Supremacy Claus | Jun 19, 2009 9:15:06 PM

Engstrum is very significant, but I'd call it the second, not the first, significant pro-defendant Second Amendment decision. In United States v. Kitsch, 2008 WL 2971548 (E.D. Pa. August 1, 2008), the court held the defendant must know he is a felon to be guilty of felon-in-possession charges. Most circuits in the past have held to the contrary.

The district court in Kitsch based its holding first just on a plain reading of the statute, but buttressed its holding by noting that the statute potentially infringes on a fundamental constitutional right, and "where the lack of a scienter requirement would raise serious doubts about the constitutionality of a criminal statute, we should read the statute as containing such a requirement unless that reading is contrary to the statute’s plain terms."

Kitsch is perhaps less significant b/c most felons cannot plausibly claim ignorance of their felony status. But I have a client right now with a very strong claim that he thought his 20-year-old conviction had been expugned -- so it's a significant issue for him!

Posted by: Jonathan Witmer-Rich | Jun 22, 2009 9:52:46 AM

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