« "Positive Sanctions versus Imprisonment" | Main | "Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests" »

January 20, 2019

DC Circuit showcases Second Amendment's second-class status by holding very old, non-violent felony eliminates right to keep arms

A few days ago at PrawfsBlawg, Gerard Magliocca touched off a debate over the reach and application of the Second Amendment via this post titled "The Bill of Rights Has First-Class and Coach Tickets."  His post riffs off a recent Third Circuit opinion upholding a New Jersey ammunition limit that prompted lengthy dissent by Judge Bibas.  And, as noted in this post from last year, Justice Thomas has lamented in a cert denial that the Second Amendment has become "constitutional orphan."  Long-time readers likely know that this discussion engages sentencing and collateral consequences in a variety of ways, and I have long noted that the Second Amendment seems to be the only (so-called) fundamental right in the Bill of Rights that can be permanently and categorically lost by a single old prior offenses.

The status of the Second Amendment as a second-class right, at least for those with any felony record, was reinforced just last Friday by the DC Circuit through an unanimous opinion in Medina v. Whitaker, No. 17-5248 (DC Cir. Jan 18, 2019) (available here). Here is how the opinion starts and a key paragraph toward the end of the panel's analysis:

Jorge Medina was convicted of falsifying his income on mortgage applications twenty-seven years ago.  Now, as a convicted felon, he is prohibited from owning firearms by federal law.  He argues that the application of this law to him violates the Second Amendment because he poses no heightened risk of gun violence.  Because we conclude that felons are not among the law-abiding, responsible citizens entitled to the protections of the Second Amendment, we reject his contention and affirm the district court’s dismissal order....

On balance, the historical evidence and the Supreme Court’s discussion of felon disarmament laws leads us to reject the argument that non-dangerous felons have a right to bear arms.  As a practical matter, this makes good sense.  Using an amorphous “dangerousness” standard to delineate the scope of the Second Amendment would require the government to make case-by-case predictive judgments before barring the possession of weapons by convicted criminals, illegal aliens, or perhaps even children.  We do not think the public, in ratifying the Second Amendment, would have understood the right to be so expansive and limitless.  At its core, the Amendment protects the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635.  Whether a certain crime removes one from the category of “law-abiding and responsible,” in some cases, may be a close question.  For example, the crime leading to the firearm prohibition in Schrader — a misdemeanor arising from a fistfight — may be open to debate.  Those who commit felonies however, cannot profit from our recognition of such borderline cases.  For these reasons, we hold that those convicted of felonies are not among those entitled to possess arms.

I do not at all dispute the notion that the Second Amendment was not intended to be limitless.  But I do like to highlight how jarring it would be if a state or the feds were to claim that any persons falsifying income on a mortgage application years ago should never again have a right to go to church or to write a book (First Amendment) or never again have a right to due process or against property takings (Fifth Amendment) or never again have a right to a trial or a to lawyer in a criminal prosecution (Sixth Amendment).  In other words, I see the Second Amendment as so obviously a second-class right because we so readily tolerate and even find "good sense" in dramatic categorical restrictions on this right that we would never contemplate with respect to other prominent rights in the Bill of Rights.

January 20, 2019 at 01:49 PM | Permalink

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB