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June 1, 2012

Second Circuit rejects Second Amendment attack on federal firearm possession statute

Thanks to a very helpful reader, I see that the Second Circuit has a notable new Second Amendment opinion in US v. Decastro, No. 10-3773 (2d Cir. June 1, 2012) (available here). Here is how the majority opinion (per Chief Judge Dennis Jacobs) gets started:

Following a bench trial on stipulated facts in the United States District Court for the Southern District of New York (Patterson, J.), Angel Decastro was convicted of transporting into his state of residence a firearm acquired in another state in violation of 18 U.S.C. § 922(a)(3).  Decastro appeals on the ground that § 922(a)(3) violates his Second Amendment right to keep and bear arms.  He argues: [1] that § 922(a)(3) is unconstitutional on its face; and [2] that, in combination with New York’s licensing scheme, the prohibition on the transportation into New York of a firearm purchased in another state made it virtually impossible for him to obtain a handgun for self-defense. For the following reasons, the judgment of the district court is affirmed.

Judge Hall concurs in a separate opinion in order to "enunciate how [he] reach[es] the determination that § 922(a)(3) does not impose a substantial burden on the exercise of Decastro’s Second Amendment right."

Until I have a chance to review this opinion more thoroughly, I cannot predict with confidence how strong supports of broad and potent Second Amendment rights might react to this ruling. But I can already predict that NYC Mayor Bloomberg, a very strong advocate of very strong gun control, is certain to be very pleased with this opinion (unless Chief Judge Jacobs happened to hand the opinion down in Manhattan while drinking a Big Gulp of Mountain Dew).

June 1, 2012 at 11:17 AM | Permalink


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It's been a few weeks short of four years since the Supreme Court decided Heller. From the day the Court's opinion was announced, the defense bar, and particularly its representation on this blog, has been waging an intense campaign to arm previously convicted criminals and exempt them from the statutes that forbid it. The reason fronted for this campaign is that even felons sometimes need to defend themselves. And so they do, which is why a legitimate, serious, immediate theory of self-defense is and has been available to felon-in-possession charges, before Heller and afterward.

The actual reason for the campaign to arm felons (and the roaring disinterest in arming anyone who abides by the law) has very little to do with defense, but a lot to do with offense. A thug is, after all, more dangerous, and more effective at his chosen trade, when he is able to stick a gun in his victim's ear.

After four years, it's now time to declare the defense bar's campaign the total flop it is. One interesting testament to its failure is the absence of a single comment on this Second Circuit opinion.

Apparently reality has dawned. Congratulations! As some of us said at the time, the Heller dictum preserving the power of legislatures to disarm previously convicted felons was not going to just get ignored by the lower courts, and it hasn't been.

I suppose there will be some dead-enders. Fine. Have at it guys. We all know where this one winds up. If you want to keep on wasting your time, OK, it's your time. Why stop losing now?

Posted by: Bill Otis | Jun 3, 2012 5:40:13 AM

not really bill. More a case of those of us with brains to see what a bunch of treasonous criminals now run the USSC have given up considering the rescent list of toaly fucked up decisions have come from their traitorous mouths!

It's no longer worth the bother

Posted by: rodsmith | Jun 3, 2012 9:59:32 AM

rodsmith --

"It's no longer worth the bother."

I agree, adding only the observation that it wasn't worth the bother to start with. The idea that the lower courts were going to just push past the very explicit Heller dictum was a defense bar pipedream, start to finish. The only reasons the defense bar pushed it were (1) they wanted to see their violent clients better armed (and thus more successful at what they do when not in the PO's office pretending to be downtrodden), and (2) it was cost-free, since almost all the litigation expenses were footed by the taxpayers.

Posted by: Bill Otis | Jun 3, 2012 2:32:46 PM

i disagree bill. last time i looked at the constution i saw NO restrictions in the wording of the 2nd amendment and for 200+ years the courts agreed! up till the 1960s after the kenndy assination you could leave prison and get your weapons that WERE NOT used in a crime returned. funny how all of a SUDDEN it's NOW unconstutional to have them!

Posted by: rodsmith | Jun 3, 2012 4:37:44 PM

i also find it funny that NO lawyer has yet to come back and prove i'm wrong on that statement!

Posted by: rodsmith | Jun 4, 2012 1:00:26 AM

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