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August 5, 2010

Seventh Circuit rejects as-applied Second Amendment challenge to § 922(g)(1), but suggests a non-violent felon might prevail

The Seventh Circuit handed down today another intriguing Second Amendment opinion in which it finds unavailing an as-applied challenge to 18 U.S.C. § 922(g)(1), the federal felon-in-possession criminal prohibition.  There are lots of interesting aspects of the panel's ruling in US v. Williams, No. 09-3174 (7th Cir. Aug. 5, 2010) (available here) -- including the fact that retired Justice Sandra Day O'Connor was one of the members of the Seventh Circuit panel (though she was not the author of the unaninous panel opinion).

But Williams strikes me as especially notable because the panel's emphasizes on the fact that the defendant challenging § 922(g)(1) had previously been convicted of a violent felony. And then the panel opinion throws in this very noteworthy paragraph:

And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams.  Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him.  See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”).  Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

It seems that the panel here in Williams may be essentially urging that a better candidate in the form of a non-violent felon, take a Second Amendment run at § 922(g)(1).

A few related Second Amendment posts on related issues:

August 5, 2010 at 10:36 PM | Permalink


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Considering the 7th Circuit's en banc opinion in Skoien, which focused heavily on domestic violence misdemeanors, I wonder if the would be willing to challenge 922(g)(1) for a non-violent offense (such as a white collar crime). http://joshblackman.com/blog/?p=4979

Posted by: Josh Blackman | Aug 5, 2010 11:25:18 PM

I see this issue as being one of always the bridesmaid and never the bride. Appeals panels are going to look hard for reasons that each claimant is unworthy. Possibly to the point of simply making stuff up, or as in the 10th circuit case mentioned a few days ago ignoring a preserved question entirely. Even if the panel members believe a particular application of the law is unjust they are going to be extremely reluctant to wade into that swamp. I just don't see any objective means of sorting felon-claimants.

Now, misdemenant DV claimants, especially ones whose convictions became final before the change in federal law, there I believe the courts have gotten the issue entirely wrong.

Posted by: Soronel Haetir | Aug 6, 2010 12:05:31 AM

Simple, really. It is reasonalble to bar convicted violent offenders from having weapons. There is no reason to hold that a non-violent conviction should operate as an automatic dishonorable discharge from the state militia, or that it should resould in loss of the civil right of possessing the means of self defense.

Posted by: Lou Gots | Aug 7, 2010 8:45:47 AM

To reply to your request for reader information: Lou Gots, retired attorney, sometime Marine JAG, Assistant D.A. and criminal defense

Posted by: Lou Gots | Aug 7, 2010 8:51:15 AM

horse pucky lou! a large majority of those shipped here from europe were criminals. they helped free this country WITH GUNS and helped right that document that says ALL AMERICANS can carry a weapon and have the RIGHT TO DEFEND THEMSELVE fromy ANYONE. In fact it was put in there to protect them from our OWN GOVT!

because they knew based on history that sooner or later some bunch of criminal idiots would take over the govt and it would need to be controled or tossed. Like today!

Posted by: rodsmith | Aug 7, 2010 7:40:02 PM

I believe that instead of labelling felons as 'violent' or 'nonviolent' we should restore rights based on how long of a period of time they have been law abiding citizens. My husband was convicted of unlawful wounding 26 years ago. He and another boy got into a fight and my husband hit the other boy with a bottle in order to stop him from further attack. THe other boy was injured. The judge ruled it as unlawful wounding because he said although my husband had the right to defend himself he had used excessive measures ( the bottle) in doing so. He has not been in any trouble since that time. This qualifies as a 'violent' felony even though both participants were at fault. Actually the other boy is the one who started the fight. It is only because he was hurt that the charges were brought about. I don't see how keeping my husband from owning a firearm after 26 years serves any purpose. There should be an automatic restoration after a certain period of time.

Posted by: maggie kinkade | Aug 16, 2010 1:32:00 PM

well we can dot or I's and cross our T's and really sound like we know what we should do but truth is, it says we have the right to bare arms it dosent say unless you your a felon or this or that its plain and simple a matter a fact its still in oklahoma law books that every inmate upon realise shall recieve one horse one saddle and one shot gun , well ive yet to get mine. non-vi

Posted by: stewart | Feb 13, 2013 3:12:04 PM

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