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March 2, 2010

Big day for guns (and other fun?) at SCOTUS

As detailed in a bunch of major press piece linked here at How Appealing, the Supreme Court today will hear oral argument in McDonald v. Chicago, another potential landmark Second Amendment case that will determine if the Court's 2008 ruling in Heller extends to the states.  In addition, I think the Court is likely to release some opinions this morning, and before long they will have to start handing down rulings in the bigger criminal justice cases that were argued last Fall.

Though there so many aspects of the McDonald oral argument to follow, I will be especially interested to see if gun rights for the disfavored (e.g., anyone with a criminal record) gets any mention at all.  I also will be interested to see how the Heller dissenters engage (or seek to disengage) with the individual constitutional right recognized in Heller.

What, dear readers, are you going to be looking for in the McDonald argument?

A few related Second Amendment posts:

March 2, 2010 at 08:15 AM | Permalink


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Well one of them came down today. The result in Johnson isn't surprising at all. Not sure there's much more to say about it than that.

Posted by: Soronel Haetir | Mar 2, 2010 11:09:37 AM

Soronel, yes, Johnson came out as expected.

On a related matter, Doug and I have not forgotten your request several months ago about greater elaboration on my opinion about Scalia and Stevens' questions in Johnson oral argument about whether a misdemeanor can be kicked up to a felony due to recidivism.

Amanda Zimmer and I have written an article for the next issue of the Federal Sentencing Reporter, which went to final editing last week. Our opinion that the Court has previously addressed the question and answered it that two misdemeanors cannot a felony make, will be published soon.

I will look forward to your always thoughtful comments.


Posted by: bruce cunningham | Mar 2, 2010 12:16:58 PM

Some of the most interesting 2nd Amendment issues that could come up include:

The status limitations on gun ownership that are most interesting are:

* Pre-conviction bail restrictions for someone who can show that their livelihood is at stake, or that they have a good faith clear and present reasons to fear that they will need to use armed self-defense as a result of threats made against them. This is particularly interesting in cases where the case is prosecuted on an information, rather than by indictment, and there was no preliminary hearing: i.e. when there has been no third party, evidentiary determination that there is probable cause that the defendant committed a crime.
* Prohibitions on felon ownership as applied to felons who have had civil rights restored in the jurisdiction of the conviction which another jurisdiction is not honoring.
* Prohibitions on felon ownership by someone who would quality for restoration of civil rights for felonies committed in the state where the felon resides, but not in the state of conviction.
* Prohibitions on non-violent misdemeanant ownership (e.g. misdemeanor sex offenders in cases not involving physical contact required to register as sex offenders).

I think most of the other status restrictions (minors, felons, violent misdemeanants, people subject to TROs, probationers, etc.) would be catagorically upheld.

Other interesting issues:

* Special state or local legislation covering less than an entire jurisdiction. This kind of geographical limitation could cast doubt on the sincerety of the valid reason to regulate the right, and impairs the idea of the Second Amendment as a check against government tyrany in the form of a refusal to try to prevent private violence against a community.
* Laws that outright ban possession on private property in private settings beyond the home (e.g. workplaces, private clubs, churches, day cares, private schools, private colleges, land used for hunting) for adults without criminal records (or similar taints).
* Laws that apply to formula defined geographically limited areas (e.g. school zones) that overlap with private property where owners could otherwise possess guns lawfully.
* Laws that ban discharge of a weapon anywhere in the jurisdiction, even for shooting practice.
* Open carry prohibitions (and more generally, time, place and manner restrictions).
* Discretionary concealed carry permit laws.
* Prohibitions on types of guns or ammunition that are exceptional in some way.

Finally, there are cases that have a property ownership element to them. On one hand, what restrictions that would be invalid otherwise, can be upheld when government acts as a landowner as well as a regulator (parks, fairgrounds, public housing, public schools, public universities, public ports, roads, private gatherings in rented government buildings), and on the other are the cases where privately imposed restrictions (e.g. of a state chartered HOA) can rise to the level of being quasi-governmental.

Posted by: ohwilleke | Mar 2, 2010 2:41:46 PM


It will be interesting to see what you have to say but I believe it's going to be a very tough hill for you to climb.

Just as a simple example, misdemeanor plus new act that wouldn't even be criminal but for the misdemeanor, specifically domestic violence misdemeanor plus firearm possession (or even ammunition?) equals a new felony. Setting aside the constitutional questions regarding retroactive application to those whose misdemeanor conviction predated the ban I don't see the courts invalidating such a prohibition. I don't even see the courts invalidating the retroactive application though I think that is extremely suspect as a matter of proper constitutional interpretation. I recognize that the 7th and 4th circuits are wrestling with this issue but even there they aren't saying the ban is flatly unconstitutional just that the government must make a further showing.

Given the above I don't see the courts invalidating something like: (a) Whoever steals tangible property having a value of at least $1000 shall be guilty of the offense of petty theft, a Class C Misdemeanor. (b) Whoever steals tangible property having a value of at least $500 within 5 years of conviction for an offense under clause (a) of this paragraph shall be guilty of the offense of aggrevated petty theft, a Class D felony."

I just don't see the courts invalidating something like that. And I don't see them invalidating more catch all schemes.

I would agree with you that the new offense requires some act or omission, but as can be seen with the sex offender registration cases that omission can be frighteningly low. I do think SCOTUS is going to uphold retroactive application of the federal registration requirements.

Posted by: Soronel Haetir | Mar 2, 2010 3:41:51 PM

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