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March 26, 2014

Without much to say about the Second Amendment, SCOTUS gives broad reading to federal firearm possession crime

In a unanimous ruling (with two separate concurrences), the Supreme Court this morning interpreted broadly in US v. Castleman, No. 12–1371 (S. Ct. Mar. 26, 2014) (available here) the federal crime set forth in, 18 U.S.C. § 922(g)(9), prohibiting anyone who has been convicted of a “misdemeanor crime of domestic violence” from ever possessing a gun. Here is how the main opinion in Castleman, authored by Justice Sotomayor, gets started and its final two paragraphs:

Recognizing that “[f]irearms and domestic strife are a potentially deadly combination,” United States v. Hayes, 555 U. S. 415, 427 (2009), Congress forbade the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.” 18 U. S. C. §922(g)(9).  The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. App. 27. The question before us is whether this conviction qualifies as “a misdemeanor crime of domestic violence.”  We hold that it does....

Finally, Castleman suggests — in a single paragraph — that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms.  But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman’s cursory nod to constitutional avoidance concerns.

Castleman’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualifies as a “misdemeanor crime of domestic violence.”  The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

Notably, there are separate concurrences by Justice Scalia (author of the landmark Heller Second Amendment ruling) and Justice Alito (author of the follow-up McDonald ruling describing gun possession as a fundamental right). But neither Justice seems even a bit concerned by a broadened interpretation of a federal statute that makes forever criminal the possession of a firearm by millions of persons who have been convicted of only a certain type of misdemeanor.

For many of the reasons set forth in the various Castleman opinions (which I need to read carefully before commenting further), I think the Justices are on solid ground with statutory interpretation in this case. But what I think makes the case truly interesting and telling is what short shrift is given to the supposedly fundamental rights protected by the Second Amendment even by all five Justices who have previous spoke grandly about these rights in Heller and McDonald.

March 26, 2014 at 10:36 AM | Permalink


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From the getgo, it was a losing argument that the Heller dictum (noting that states could still properly prohibit previously convicted criminals from owning guns) was going to run afoul of the Second Amendment. (And yes, that means you, too, Martha Stewart). But for those who still had flickering hope that this argument would sell, today's unanimous opinion is the end of the line.

Posted by: Bill Otis | Mar 26, 2014 10:53:21 AM

So, Bill, especially in light of Castleman, do you think Congress could constitutionally make it a federal felony for anyone convicted of any state misdemeanor (including, say, speeding or texting while driving or running a red light camera) to ever possess a gun?

Posted by: Doug B. | Mar 26, 2014 11:08:08 AM

Doug --

I don't think speeding or running a red light camera is a misdemeanor; certainly they didn't count as misdemeanors when I did them! I think they're just infractions. I don't know about texting while driving.

The question here is about line-drawing, as it often is in law. The question you pose is a vintage law school question out of that mold, i.e., "Would you get the same result if we went just a little bit farther...?"

The Court has now said pretty clearly that it's OK for states to forbid gun ownership to felons and some other offenses that society, over the last few years, has come to take more seriously than it used to. Wife beating, which is the common name for "domestic violence," is one of those offenses.

I have no problem with that. Why should I? For people who don't want a firearms disability, the answer ain't that hard: Don't beat your wife. Or your girlfriend. Or your kid. Grow up and control your temper. If you won't, you'll not be owning a gun (legally).

As I say, I have no problem with that, and neither do any of the nine Justices.

Finally, as often happens with law school hypotheticals, it explores territory that's not there. No one is going to impose a firearms disability for speeding, as I'm sure you know.

This decision is welcome, not least because it shows judicial deference to the decision by the political branches as to where, among several plausible places, the line is to be drawn. In that sense (not to bring up a sore point or anything like that), it conforms to the equally welcome judicial discipline in allowing the political branches rather than the judiciary to decide what charge to bring, whether or not the charge carries a MM sentence.

In a country founded on the central idea of democratic rule, allowing the political branches to make decisions like this, rather than have them all sliced-and-diced by the Robed Aristocracy, is a healthy thing.

Posted by: Bill Otis | Mar 26, 2014 11:42:27 AM

Well, Bill, federal law now already imposes a firearm disability for state DUI if/when that form of dangerous driving leads to a felony conviction. In addition, as a recent article about a well-know celebrity shows, in New York (and I think other states) it is possible to get a felony conviction for speeding: http://www.inquisitr.com/1187732/flavor-flav-speeding-case-postponed-but-other-legal-troubles-loom/

I agree that this is a classic law school question about line drawing, and that is why I am asking it. You seem to be a fan of the Second Amendment (as I am), but also believe that there can be broad restrictions on that right based on relatively minor (i.e., misdemeanor) past involvement in the criminal justice system. Because no other fundamental right is so easily lost permanently, I worry about these limits on the Second Amendment. But you apparently do not, and thus I am wondering what line would need to be crossed before you would begin to worry about this. I suspect that whatever line you would draw is similar to the line likely to be drawn by the Heller majority. I also suspect the "gun grabbers" I keep being told about also what to know how far you think they can go with criminal prohibition on who can possess a gun or ammunition.

Posted by: Doug B. | Mar 26, 2014 12:06:33 PM

"But you apparently do not, and thus I am wondering what line would need to be crossed before you would begin to worry about this. I suspect that whatever line you would draw is similar to the line likely to be drawn by the Heller majority."

Yes, probably. Of course that would be more generous toward gun rights than any Justice in the liberal bloc, all of whom wanted to cut way back on gun ownership for people with NO criminal conviction.

"I also suspect the 'gun grabbers' I keep being told about also what to know how far you think they can go with criminal prohibition on who can possess a gun or ammunition."

What's a "gun grabber"?

I'll be interested in the answer to that, but, whatever it is, I will continue to believe that the correct outlook on this issue is not to keep going after the Heller dictum and its progeny -- which should be accepted as settled law at this point -- and look to a cultural rather than a legal solution. To be specific: The problem is not today's unanimous SCOTUS. The problem is men who think it's OK to hit women and children.

P.S. I am not aware of a single state in which speeding per se is a felony. There are states in which grossly excessive speeding becomes reckless driving, which (I think) can be either a felony or a high class of misdemeanor (I don't know state law that well).

Posted by: Bill Otis | Mar 26, 2014 12:26:59 PM

The reach of the exception to the RKBA might be troubling to some extent but the opinion avoids the question by noting the claim was tacked on and that it was not a close question for avoidance purposes. I wouldn't read much into it for 2A purposes.

Posted by: Joe | Mar 26, 2014 1:50:17 PM

Joe --

Liberals never want to "read too much" into cases they lose, even if they lose them without getting a single vote.

On the other hand, they're happy to proclaim the Next Coming of Miranda when they win a 5-4 case like Laffler. That one, decided two years and two weeks ago, was supposed to revolutionize criminal procedure in the defendant's favor.

So far as I can tell from talking with people in the field, it has had next to no impact and has all but disappeared. Maybe the defense bar "read too much" into it.

Posted by: Bill Otis | Mar 26, 2014 3:36:36 PM

Conservatives also don't want to "read too much" regarding cases they lose and if anything RKBA is more their concern ... though there is bipartisan support for it.

But, hey, don't let me stop your selective targeting ... it's fairly safe when done w/o bullets.

Posted by: Joe | Mar 26, 2014 4:24:53 PM

Joe --

So could you tell me again how Laffler has been the big revolution it was heralded as being? I missed that in your post.

Posted by: Bill Otis | Mar 26, 2014 4:46:45 PM

The Constitutional avoidance argument was essentially a way to backdoor a Constitutional argument that had been forfeited. Had it been raised directly, the Court probably would have said just that (that it was forfeited) and there would be even less of a comment on the merits of the issue. I don't think this case should be seen as commenting on the constitutional issue. I think their refusal to grant cert in 2nd Amendment cases should be seen as a comment that lower courts will be able to decide this issue for themselves, but I don't think this opinion should be read as standing for much in that debate.

On the merits, it's an extremely broad interpretation. That being said, it's a common definition. It's more reasonable to believe Congress wanted to include offensive touchings (which is included in a substantial number of state statutes without being divisible) than only wanting to address the rare situation where there is a serious violent attack in a domestic context but is, for some reason, classified as a misdemeanor. As a matter of statutory interpretation, it's clear. Let someone else challenge the Constitutionality of the law if they wish and we can debate whether a state can bar a person from owning a gun if they were speeding 55 in a 35 (Class 1 Misdemeanor in Virginia).

Posted by: Erik M | Mar 26, 2014 7:52:04 PM

so another illegal decision from the 9 traitors in the USSC.

loved this!

“misdemeanor crime of domestic violence”

wonder what invisible page in the constitution they found this line of bullshit.

or is this what you lawyers call more "creative" interpretation of the Constitution of the United States?

sorry like most of their decisions the last few decades. they are talking out their asses.

Just hope I'm still here when it all falls in the pot and suddenly those twofaced traitors are faced with a few real Americans fixing to exercise their constitution given right to remove traitors from office perminently.

Posted by: rodsmith | Mar 26, 2014 8:16:26 PM

If in time it becomes necessary to form a militia to throw out a tyrannical regime, we will need an armed citizenry. The more who can bear arms gives us more of a chance to throw out the Redcoats. We may need to throw them out of our homes, bedrooms, closets and computer clouds as well. The sequence of the Second and Third Amendment had rhyme and reason. The fact that they follow the First Amendment seems to have further coherence to the threats to our liberties and why they created standards and mechanisms for protecting them. Things have not changed all that much. Some will argue that the Framers were dyslectic and meant to create a right to arm bears. I for one do not buy that. I do not think that the Court should have upheld any gun regulation Power of the state or feds here in this case. States don't have "rights"-- they have "powers". People have rights. Gun ownership, possession and the right to "bear arms" means the right to have a gun on the streets and not just squirreled away in the bedroom safe. This Supreme Court is not strong on the Second Amendment or any of the Amendments.

Posted by: Liberty1stl | Mar 26, 2014 9:34:46 PM

For what it's worth, the amendments were not ordered out of importance, but in the order of the parts of the Constitution they were intending to amend. The two amendments that never passed were the original first and second amendments. The current first amendment, iirc, would amend Article I section 9. I believe the current third amendment would amend Article II, but I could be wrong. The Fourth, Fifth, Sixth, Seventh, and Eighth amendments would amend Article III. Here, they're procedurally in chronological order. The Eighth Amendment was going to go earlier because of the Bail provision, but the sentencing and fines part made sense too so they stuck it after.

Posted by: Erik M | Mar 26, 2014 11:22:49 PM


I have to laugh at the self-deception of those commenters who say that only liberal monkeys in black pajamas are capable of "judicial activism', however that term is bast-rd-zed".

It is the whole rotten system!

Posted by: albeed | Mar 27, 2014 8:56:36 AM

With the Supreme Court discussing the secret service first amendment case and Justice Scalia wanting to apply a Whren-like analysis for First Amendment claims (i.e., even if the intent is to discriminate based on the content of speech, the Secret Service is fine if the actions could be objectively justified as protecting the President), I do wonder if the Court could very well apply an Atwater v. Lago Vista approach to the Second Amendment. In other words, we're not going to look at the content of what the crime is, just that it's a criminal conviction and the legislature deemed it as requiring a loss of right to carry a firearm.

If we do that, the right would be ridiculously watered down since even a seatbelt violation could result in forfeiture of Second Amendment rights. I certainly don't like that idea, but I'm curious where they'd find a better line.

Posted by: Erik M | Mar 27, 2014 12:25:37 PM

I don't know what "Laffler" has to do with what I said.

I also don't really understand rodsmith's comment. Again, if you think the rule accepted in Heller dicta violates the 2A, okay, but the ruling didn't substantively decide the question. As to the seatbelt comment, since a substantive liberty interest is at issue here, not just a "reasonable" search or seizure, there will have to be some outer limits.

But, with over 40 states with RKBA provisions in their state constitution, etc., I don't know where that level of prohibition will arise. Heller dicta said "felony" and cases like this suggest some sort of violent crime and other concerns would be included even if they amount to misdemeanors. But, seatbelts? As is, there are a range of pretty petty "felonies" out there for that to be a good rule for denial of a fundamental right. Be it voting or gun ownership.

Posted by: Joe | Mar 27, 2014 1:31:56 PM

Well, I mentioned Whren and the current Supreme Court case where the substantive liberty interest of Free Speech is at issue, but Justice Scalia argued it was irrelevant. That's why I wondered where else the Fourth Amendment jurisprudence could be expanded to.

Posted by: Erik M | Mar 27, 2014 4:37:22 PM

my comment is simple joe. the criminals on the USSC have since the mid 1960's have been using every bullshit excuse to strip American citizens of their legal constitutional right to keep and bear arms. None of the illegal shit they have used like the above is even close to constitutional based on the 2nd.

sorry that was placed in the constitution by our founds to specifically tell the govt you can't touch the guns.

the only reason the damn document was even written was WE ALL HAD GUNS and were willing to use them to run the English out.

we didn't need the constitution to give us permission to have them. we already did. it was to tell the gove to leave them the fuck alone.

because the founders were not sure the new experimental govt we were creating wouldn't need to be controlled with them down the road for one reason and we had just went thought a war with a govt that needed to be cut down to size.

as for "outer limits" this is one of those basic amendments. absent you committing a crime with the gun there are no limits.

Posted by: rodsmith | Mar 28, 2014 5:08:23 PM

Is the real argument here whether it's the type of crime, "domestic violence", or the classification of the crime, a "misdemeanor"? A felon cannot possess a firearm; NOW one convicted of a misdemeanor, a specific type misdemeanor, cannot possess a firearm.

Domestic violence is unacceptable; yet one might ask the question, what other forms/types of misdemeanors might the government determine, at some future date, are egregious enough that one who commits one can be denied possession/ownership of a firearm?

For those who would argue the government would not be so ridiculous as to include any other form of misdemeanor as a basis to deny possession of a firearm, think twice. If such an avenue could benefit the gun grabbers, they will have no hesitation to attempt to do so. So one day, in the far flung future just pissing on your neighbors bushes, a misdemeanor, could deny you gun ownership; after-all, for doing that you are a threat and a danger to society, and government must naturally do something about you.

Liberty is lost a little bit at a time; once lost it is never to be regained.

Posted by: Rick |

Posted by: Rick | Mar 29, 2014 2:52:28 PM

very very good rick!

especially this part!

"So one day, in the far flung future just pissing on your neighbors bushes, a misdemeanor, could deny you gun ownership;"

after all this is already getting individuals illegal LIFE on the Registry

Posted by: rodsmith | Mar 29, 2014 5:30:51 PM

One issue not addressed above that I think is crucial is the relative informality of misdemeanor proceedings. Very often, incarceration is not on the table, meaning there may not even be a right to counsel. Even if the defendant is represented, the level of representation varies wildly. And often everyone involved (ADA, defense lawyer, defendant, judge) is under the impression that not too much is at stake. Any time you are talking about lifetime-long, after-the-fact consequences arising from misdemeanors, I get worried, because it is really not unusual for someone to plead to a misdemeanor just because they think they can pay court costs and get their entanglement with the courts over (so they think), or because going to trial would cost too much, or they are in jail and can't make bail and the plea offer is time served, etc. That doesn't mean there aren't serious "wife beaters" and abusers convicted of misdemeanors too. It's just that I think the category is likely to be *way* over inclusive. And it only makes things worse that police, under a lot of pressure to take d/v seriously, sometimes follow a "mandatory arrest/complaint" policy whenever they are called out for a domestic dispute, even if there is no evidence of more than yelling or slamming around pots and pans... Indeed, police sometimes also follow an "arrest both parties and let the DA figure it out" policy, which combined with the informality/low stakes concerns above, can actually lead to the *victim* taking a plea to a d/v misdemeanor. I'd like there to at least be a 10 year time limit or something. Combining the unreliability of the category with the lifetime extent is too much.

Posted by: anon | Apr 2, 2014 1:59:28 PM

This really helped me for my civics class and I felt that in McDonald v. City of Chicago the court made the right decision, however i guess that some reasons why we sometimes forfeigt this amendment is to ensure the safety of others.

~ AJ
8th grade

Posted by: AJ | Nov 11, 2014 8:51:02 AM

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