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July 30, 2009

Heller's impact on felon-in-possession crimes finally starting to generate attention

As regular readers know, I have been blogging about the possible impact of the Second Amendment on federal felon-in-possession crimes and sentencing since the Supreme Court first granted cert in Heller.  Now, thanks to a terrific concurrence by Judge Tymkovich (discussed here) about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here), this issue is finally starting to get some broader attention. 

Specifically, in this post at SCOTUSblog, Lyle Denniston responds to Judge Tymkovich's opinion and asks "Did Heller say too much?". Similarly, in this post at The Volokh Conspiracy, Eugene Volokh comments thoughtfully on Judge Tymkovich's opinion.  Here is hoping that other big bloggers and also the media start engaging with this issue more thoughtfully and dynamically.

Some related Second Amendment posts:

July 30, 2009 at 10:06 AM | Permalink


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Does anyone know if inmates were ever given a gun on release from prison? Someone posted that as true recently somewhere but without citation and a cursory search to confirm it failed. Maybe release evolved from gun to "gate money"?

Posted by: George | Jul 30, 2009 10:15:20 AM

Good luck getting anything done legislatively, for the same reasons nobody is pushing for census counts of prisoners in their original urban residence instead of their rural prison.

Posted by: . | Jul 30, 2009 10:16:44 AM

I just wish J. Tymkovich liked the 4th Amendment as much as he likes the 2nd Amendment.

Posted by: 10th Cir. lawyer | Jul 30, 2009 1:55:09 PM

Putting aside the stupid views of the moron who is about to become a Supreme Court Justice, voting rights can be denied to felons. Are the rights secured by the Second Amendment more precious than voting?

Posted by: federalist | Jul 30, 2009 2:23:14 PM

I guess, then, that Sens. Graham, Alexander, Martinez, Snowe, Collins, et al, are “morons” for supporting her?

Posted by: Marc Shepherd | Jul 30, 2009 2:39:31 PM

I wonder how a moron managed to graduate summa cum laude from Princeton. I also wonder if federalist did that well in college. If not, one would have to assume he's more moronic than the person about to become a Supreme Court justice.

Posted by: abc | Jul 30, 2009 2:41:10 PM

All you guys have to do is look at her comments at the hearing to see that she's a dim bulb. Not as dim as Judge Clay, but a dim bulb nonetheless.

She claimed the Ginsburg's Ricci dissent would have affirmed the Second Circuit, which is flatly untrue, given the fact that Ginsburg's dissent didn't even deal with the Equal Protection Claims of the plaintiffs. Her answer to Kohl on Supreme Court term limits defines the word "garbled".

Posted by: federalist | Jul 30, 2009 3:21:46 PM

Just admit it, federalist. Your definition of "dim bulb" is "someone who I disagree with." I disagree with many of Justice Alito's positions, but - unlike you - that doesn't make me think of him as a dim bulb. Although he didn't do as well at Princeton as Sotomayor, his relative success there (and other places) makes me respect his intellect, even if I disagree with him most of the time.

I know others have urged you to refrain from personal attacks (to no avail), but I'll try one more time. Your comments on this blog would carry so much more weight, and would be so much less tedious, if you could just bring yourself to stick to the issues.

Posted by: abc | Jul 30, 2009 3:40:19 PM

Come on, abc. First of all, I did weave the Sotomayor slam in there pretty nicely. Second of all, you won't ever catch me calling Stephen Reinhardt a dim bulb.

I notice you have backed off calling Sotomayor smarter than I. Let's see you defend her "Ginsburg would have affirmed me" claptrap. And then please explain, please, why a federal judge, sitting on the bench for 17 years makes such an elementary mistake. She doesn't really get the excuse that it was an obscure case, as it involved her decision and certainly she prepared for it. The only explanation I can come up with, after reading a lot of her testimony, is that she ain't that bright.

Posted by: federalist | Jul 30, 2009 3:51:34 PM

Morons, marc, or more interested in politics than talent on the Court.

Posted by: federalist | Jul 30, 2009 4:31:49 PM

This is an interesting issue that Prof. Berman's been watching for a while, and a prominent opinion has *finally* taken it up.

My 2 cents on this is that the opinions from the other courts of appeals have probably given cursory treatment to the question Judge Tymkovich raises because (1) as he concedes, the courts of appeals are probably bound by the Heller dictum, and (2) from what I've seen, most of these arguments are poorly made.

On this second point, the quality of lawyering shouldn't be outcome-determinative, but as any lawyer knows, advocacy matters. If there's an easy path to ruling against you, you have to spell out persuasively and in detail the argument for ruling in your favor. Most briefs I've seen arguing that felon-in-possession laws are unconstitutional or constitutionally problematic make the argument cursorily and predictably get the back of the hand from courts of appeals.

Now, at least, anyone who wants to take a serious crack at the argument has a bit more ammunition. If they don't get a win in a lower court, a good lawyer can at least tee the issue up for the Supreme Court.

*Also, please leave the Sotomayor stuff for another thread.

Posted by: anonymous | Jul 30, 2009 4:53:18 PM

sorry anonymous, the battle has been joined . . . .

Besides, I had to mention that felon-disenfranchisement laws are not beyond doubt ok, given the moron's ascension to the Supreme Court.

Posted by: federalist | Jul 30, 2009 5:35:03 PM

for what it's worth...

1. Sotomayor is very smart. She graduated summa cum laude from Princeton and won the Pyne Prize as an undergrad. Good undergrad doesn't necessarily mean good judge, but the mental wattage is there. I've read a small percentage of her opinions, and she doesn't stand out as in intellectual heavyweight or an innovator, like Calabresi or Wood or Reinhardt, but she's no mediocrity either and certainly isn't a "moron."

2. I take Sotomayor's public statements during the confirmation hearings with a grain of salt. For all intents and purposes, she's a politician for the next month or so. She's playing the game as she must to get confirmed, and playing it well. Bork said lots of smart things during his confirmation hearing, and it didn't go so well for him.

Posted by: anonymous | Jul 30, 2009 6:53:23 PM

anonymous, mischaracterizing Ginsburg's opinion is either a lie or stupid--which is it?

And good God, did you see her response to Kohl.

I agree that she's not as dumb as Judge Clay.

Posted by: federalist | Jul 30, 2009 7:25:33 PM

My thinking about Sotomayor is my thinking about Lance Armstrong. They're the best at something. Lance may be the best bicycle rider ever or he's the best at covering up his cheating. Whatever. He's the best. Same with Sotomayor. She's the best at something, because at the end of the day she will be sitting on the Supreme Court and none of us in this thread will be.

Posted by: Daniel | Jul 30, 2009 8:05:36 PM

Federalist, I'm not very familiar with the caselaw about the constitutionality of felon disenfranchisement.

If you take it as given that those laws are constitutional then it's certainly tougher to make the argument that felon-in-possession laws are unconstitutional.

But I'm not so sure that Judge Tymkovich or anyone else interested in this debate would necessarily accept your premise.

Posted by: anonymous | Jul 30, 2009 8:40:14 PM

Felon disenfranchisement laws have generally been upheld. The moron from the Second Circuit thinks that the VRA puts them in doubt. She'd have incarcerated killers vote.

Daniel, Sonia Sotomayor's main qualification is her heritage. Deep down she knows it. Hence the silliness about a "wise Latina".

But hey, I should be happy--she'll do less damage than someone truly talented.

Posted by: federalist | Jul 30, 2009 9:37:24 PM

Federalist - As John Mcenroe would proclaim : "You can't be serious" - your post carry no weight with anyone with an IQ in double digits or higher because you are nothing but a right wing attack dog.

Posted by: SheliaB | Jul 30, 2009 9:41:02 PM

Well, SheilaB, at least I back up my ad hominem.

Posted by: federalist | Jul 31, 2009 12:12:42 PM


Mostly with Sotomayor I get the feeling she isn't very good at speaking. Her writing certainly appeared adequate from the opinions I read. Certainly Obama could have picked someone more capable if he felt indebted to the far left ideology rather than just identity blocks.

All in all, I guess I can be happy with that. I don't see her being all that adventurous, in the way Stevens is for example. I don't see her coming out and ruling that the death penalty is categorically unconstitutional, despite her advocacy in the early 80s. Or I might be wrong and she is the ultimate stealth candidate.

Posted by: Soronel Haetir | Aug 1, 2009 1:09:56 AM

SH, the answers she gave cannot be chalked up to lousy speaking. I mean, really. She had to have prepared for that Ricci comment, and it is dead wrong. She's not that talented.

Posted by: federalist | Aug 1, 2009 3:27:07 PM

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