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July 28, 2009

"[T]he felon dispossession dictum may lack the 'longstanding' historical basis that Heller ascribes to it"

The title of this post is a line from a concurrence by Judge Tymkovich 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). 

In his concurrence to an opinion rejecting a Second Amendment challenge to a 922(g)(1) conviction, Judge Tymkovich explains why he feel he must follow the dicta in Hellerindicating that felon-in-possession laws are sound under the Second Amendment.  But he goes on to express concern about its soundness --- which he describes as "deus ex machina" dicta and leads him to wonder "at least with regard to felon dispossession, whether the Heller dictum has swallowed the Heller rule."  Judge Tymkovich also expresses concern with the Heller dicta's "inhibiting effect" on lower courts charged with applying Heller.

Needless to say, in light of many of the prior posts in which I have discussed these issues, I am very glad to see Judge Tymkovich giving this matter thoughtful treatment.

Some related Second Amendment posts:

July 28, 2009 at 04:46 PM | Permalink


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Felon in Dispossession Laws in the Tenth Circuit: Lyle Denniston wonders over at SCOTUSblog if "Heller [said] too much" when it declared a Second Amendment right to a handgun for self-defense. His question comes after TenthCircuit Judge Timothy M. Tymk... [Read More]

Tracked on Jul 29, 2009 6:18:04 PM


Prof B,

I'm not sure anyone has claimed that the restriction dates any earlier than 1968, certainly not at the federal level, yet that is long standing enough for the justices in this instance. They just aren't going to play with this particular attractive nuisance.

What bothers me more than the Heller dicta are the flat errors of fact presented, such as the claim that Miller had been convicted. Even worse, both Scalia and Stevens made that mistake. In a lot of ways Miller now seems to be based far more on shared myth than reality.

More so than the felon rule, which despite the late arrival as a federal rule seems to have early legal backing from things like the aftermath of Shays' rebellion I dislike how the 9th interpreted the portion about sensitive locations to mean any government property, regardless of lack of attempt to actually secure the facility.

I am not claiming that Shays has bearing on how the Constitution was interpreted (especially since Shays came first) only that it sheds light on how the Framers viewed the RKBA. And certainly the Civil War generation thought the RKBA was something that could be forfeited.

Posted by: Soronel Haetir | Jul 28, 2009 8:28:04 PM

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