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July 18, 2022
Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement
I noted in this post last week the new report from the US Sentencing Commission titled "What Do Federal Firearms Offenses Really Look Like?". Following up on that report, Jacob Sullum has this interesting post at Reason.com headlined "A New Report Casts Doubt on the Assumption That Gun Law Violators Are a Public Menace: The vast majority of federal firearm offenses involve illegal possession, often without aggravating conduct or a history of violence." I recommend that post in full, and here are excerpts (with links from the original):
A new report on federal firearm offenses shows that the vast majority involve illegal possession, often without aggravating circumstances or a history of violence. The data undermine the assumption that people who violate gun laws are predatory criminals who pose a serious threat to public safety. They also highlight the racially disproportionate impact of such laws, which is especially troubling given their excessive breadth....
[T]he federal prohibition of gun possession by people with felony records (technically, people convicted of crimes punishable by more than a year of incarceration) is a lifetime ban except in rare cases where people manage to have their Second Amendment rights restored.
That policy, which threatens violators with up to 10 years in prison, is hard to justify unless you assume that people convicted of violent crimes cannot be rehabilitated and do not change their ways as they mature. That assumption does not seem reasonable in light of research indicating that recidivism declines sharply with age. Yet federal law is based on the premise that, say, a man convicted of assault in his early 20s can never be trusted with a gun, even if he stays out of trouble for decades. Because of that youthful crime, he forever loses the right to armed self-defense.
Furthermore, the USSC's numbers indicate that two-fifths of firearm offenders had never been convicted of a violent crime. Many prior convictions involved drug trafficking (31.6 percent) or previous weapon offenses (44.2 percent). Five percent of the defendants were disqualified from owning a gun because they were illegal drug users. If a decades-old assault conviction seems like a thin pretext for permanently depriving someone of his constitutional rights, a decades-old drug conviction, involving conduct that violated no one's rights, seems even thinner.
The irrationality and injustice of this policy look even worse when you consider the demographics of federal firearm offenders. In FY 2021, 55 percent of them were black. A similar racial disparity is apparent at the state level. According to FBI data, African Americans, who represent about 14 percent of the U.S. population, accounted for 42 percent of arrests for weapon offenses in 2019.... If those restrictions made sense, you might dismiss the disparities, citing cross-racial differences in crime rates. But those restrictions do not make sense, since they apply to millions of people who either are not currently dangerous or never were.
Importantly, as I have noted in some prior posts linked below, whether or not one agrees with Sullum's policy criticisms of broad federal firearm prohibitions, the constitutionality of some aspects of federal enforcement must be subject to new questions in the wake of the Supreme Court's recent Second Amendment ruling in Bruen. As I noted in those posts, Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation." And the historical record, as I have seen it, seems to make quite debatable whether broad bans on gun possession by non-violent offenders or drug users is "consistent with this Nation’s historical tradition of firearm regulation."
Prior recent related posts:
- By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements
- Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?
- Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
July 18, 2022 at 12:30 PM | Permalink
Comments
Sullum is a libertarian crackpot, and his piece here is so shot full of lies and distortions that it would take longer than I'm going to devote to it to go through them.
Posted by: Bill Otis | Jul 18, 2022 2:19:14 PM
FYI 922(g) is now 0-15 thanks to the recent gun legislation passed last month. Not 0-10 as the author says.
One of those little nuggets that snuck in as part of the overall package.
Posted by: Zachary Newland | Jul 18, 2022 3:21:34 PM
Mr. Otis agrees with the government that someone (like me) who was half-coerced half-tricked into pleading guilty to a non-violent crime 44 years ago, who has an otherwise perfectly clean record before and since, and whose proof of innocence was never disputed by the state, but was dismissed as untimely, should get a lengthy prison sentence if he possesses a gun, regardless of circumstances. For instance if I was present at a mass shooting and were to save dozens of innocent lives by seizing the shooter's gun.
I conclude that Mr. Otis is dangerously insane, and should seek medical help.
Does he believe the same about possession of automobiles? If not, why not? Cars kill more Americans than guns do, even though there are more guns than cars in the US.
Posted by: Keith Lynch | Jul 19, 2022 6:45:48 AM
Keith,
That is a perfectionist fallacy. If your account is true, so what? The law is an axe, not a scalpel for obvious reasons. No law can accommodate a million different scenarios leading to a felony conviction and denial of your gun rights just as no no credible justice system can prevent the occasional “wrongly convicted” guy in prison.
It’s a balancing act of competing goals.
Posted by: TarlsQtr | Jul 20, 2022 9:48:12 PM
TarlsQtr, I've never asked for special consideration. Anyone who can prove their innocence should be exonerated. Anyone who has had a perfectly clean record for decades is either reformed or was innocent in the first place. The right to defense of oneself and others, which necessarily implies the right to possess the means of such defense, is a fundamental human right, which should be infringed only in the gravest extreme, and only for the briefest period possible. It's even more impossible to keep guns out of the hands of bad guys than it is to keep drugs out of the hands of bad guys -- drugs, unlike guns, are rapidly consumed and will cease to exist unless replenished, so all that gun laws can do is disarm the good guys. If it was the mere presence of guns which were the cause of mass shootings, then Switzerland, where possession of machine guns is *mandatory*, would be the deadliest nation.
Lots of people owe their lives to the fact that Elisjsha Dicken hadn't been falsely accused of a crime or mental illness, nor had he been red-flagged by some random person.
Mistakes can happen, but a legitimate justice system would eventually correct them, not double down on its mistakes. When planes crash, the NTSB figures out why and fixes the problem. Imagine if it instead said engineers have been building planes wrong for more than 21 days, so they have to keep building them wrong forever.
Posted by: Keith Lynch | Jul 21, 2022 7:57:25 AM
TarlsQtr --
I don't know that it's a good use of your time to try reasoning with Keith Lynch. He says, citing no law, that a heroic person, as he imagines himself to be, can, if he's a previously convicted felon, be cruelly and unjustly punished for possessing a firearm in the obviously urgent case where he has no sane choice but to defend himself or others.
The reason he cites no law is that it would contradict his florid claim, see e.g., https://caselaw.findlaw.com/us-6th-circuit/1647521.html, US v. Moore, a Sixth Circuit case decided nine years ago that has an extensive discussion of the well-established exception to the FIP statute in cases of self-defense. Either Mr. Lynch does not know about this caselaw, in which case he's just spouting from florid ignorance, or he does know about it, in which case his whole "oh-poor-me" discussion is breathtakingly dishonest.
Posted by: Bill Otis | Jul 21, 2022 8:54:09 AM
Bill,
One thing I learned very early while frequenting these message boards is that whenever a “woe is me” story is given, there is more to it than what is presented.
Posted by: TarlsQtr | Jul 21, 2022 9:38:19 AM
TarlsQtr --
You observation is especially apt as respects Mr. Lynch, who was convicted because HE TOLD THE JUDGE HE WAS QUILTY, and now claims his in-court admission was false, that it was everybody else's fault, and that he's really utterly innocent.
When I asked him to produce the records to back up his claim, he declined, and said it was my job to fetch them for him, because it was only "walking distance" for the law school where I teach. Actually, it's a bit over six miles.
But back to the substance of his present claim: There has been a self-defense exception to the FIP prohibition since forever, but he just walks right past that. Is that how an honest person would behave?
Posted by: Bill Otis | Jul 21, 2022 11:08:31 AM
When I was teaching in prison, 2/3 of the inmates were innocent/railroaded, etc. Just ask them.
My favorite and most common was the “wrong place at the wrong time” excuse. He was riding around with his buddy, they were pulled over, and there was a gun plus a brick of cocaine under the passenger seat. They are always shocked, I mean SHOCKED, it was there.
Never mind the buddy was a known drug dealer, never had a job in his life, and was driving a Cadillac Escalade.
No warning signs at all!
There are always choices in life. To get or not into the buddy’s car. To plead guilty (even if not) or make your case. Keith lied to the judge in court.
As they say, “Play stupid games, win stupid prizes.”
Posted by: TarlsQtr | Jul 21, 2022 2:51:06 PM
Bill Otis said, "... a heroic person, as he imagines himself to be
...." No, I said the exact opposite of that. I said that if I were
present at a mass shooting I would *not* attempt to seize the killer's
gun. I am not willing to risk five years in prison. Neither, of course,
would I carry a gun in a mall, as Elisjsha Dicken did, or anywhere else,
on the off chance that someone might shoot up the place.
No, I wasn't familiar with the Sixth Circuit case US v. Moore. Why
would I be? I'm not a lawyer. But I do know that Virginia, where I
live, is not in the Sixth Circuit, so that case law doesn't apply to
me. Are you trying to trick me into breaking the law?
I don't know of any Virginia case law with that exact fact pattern,
but I do know that the relevant law, 18.2-308.2, mentions no "hero"
exception. And I do know of a Virginia case where a person was
convicted for having a flare pistol in his boat, although that's
a required piece of safety equipment, and is not what most people
would think of as a firearm. I would no more rely on prosecutorial
discretion to save me from a charge I'm technically guilty of than
I would rely on claims made by a telemarketer or spammer.
TarlsQtr wrote, "One thing I learned very early while frequenting
these message boards is that whenever a 'woe is me' story is given,
there is more to it than what is presented." What, always? Did you
miss the news about several *thousand* exonerations in the US? And do
you think every convicted person who wasn't exonerated must have been
guilty?
If anything I said about my case is a lie, that should be easy for
anyone to prove. Mr. Otis objects to my alleged demand that he look
it up. I made no such demand. But it's simple human decency to not
make accusations without evidence. If he doesn't have the time to
check my record, fine, but then he should STFU about it. But I
suppose nobody with simple human decency can become a prosecutor.
I've told Mr. Otis at least twice that I did *not* tell the judge I was
guilty (or even "quilty"). If either of you believe that a guilty plea
requires a confession, then I too have a case to point to: North
Carolina v. Alford, 400 U.S. 25 (1970).
He calls me a liar, but suggests that I should go to the Arlington
Courthouse myself and report back what I find about my case. Again I
ask what would be the point? Whatever I told him I found, he'd just
call me a liar again. The only way he can know for sure what the
records say is to check them for himself. If he doesn't care enough
to check, that's fine, but then he should stop pontificating about it.
And yes, six miles is walking distance for any healthy person. If he
can't walk that far, I can't help but wonder if his brain is in as bad
a shape as his body. It would explain a lot. But I never suggested
he actually walk it. I was just remarking on the remarkable coincidence
that the relevant courthouse is so close to his workplace, given that
he could have been anywhere in the US.
You also say, "When I was teaching in prison, 2/3 of the inmates were
innocent/railroaded, etc. Just ask them." Perhaps they are, given
that the methods most used to convict people have so little to do with
the methods used to learn the truth. The overwhelming majority of
defendants are convicted in coerced plea bargains, not trials.
And finally, it's not all about me, or even all about the many other
falsely convicted people. Suppose I *had* been guilty of that
non-violent crime 44 years ago, as you've both smugly convinced each
other that I was, despite -- or rather because -- of a total lack of
evidence. Should I still be forbidden from possessing a gun? Even
one that never leaves my home? How about a flare pistol if I had a
boat? Why? How many people who have had a perfectly clean record for
44 years, and who had never been accused of any violent crime, later
went on shooting sprees? How many more increments to gun "safety"
laws until something in Elisjsha Dicken's past disqualifies him too
from possessing a firearm? Will gun grabbers never be satisfied until
nobody is armed except bad guys? Obviously someone who intends to
shoot up a shopping mall won't be deterred by an additional five year
sentence for possession. But good guys will be deterred from carrying
at the mall.
I am somewhat bothered by Bill Otis's criticism, but I'm not at all
bothered by that of TarlsQtr or any other anonymous troll. I may not
have the courage to attack an active shooter, but at least I have the
courage to always use my real name here and everywhere else.
Posted by: Keith Lynch | Jul 21, 2022 11:44:04 PM
There is one thing Mr. Lynch says that I fully agree with -- that he's not a lawyer. He goes on to prove this big time by saying, "If either of you believe that a guilty plea
requires a confession, then I too have a case to point to: North
Carolina v. Alford, 400 U.S. 25 (1970)."
Of course the whole point of Alford is to note that a defendant can be validly convicted by admitting that the government has enough proof to establish his guilt BRD, even as he refuses himself to admit guilt. In other words, as even intelligent laymen know, an Alford plea IS NOT A GUILTY PLEA.
Then, after his attempt to argue, with ample indignation but no law and no stated limit, that an heroic FIP would be sent away for years for acting in self defense, he also admits that this isn't so under the Moore case. But he obviously still hasn't read Moore, because if he did, he would know that it is merely the specific application of a widely (if not uniformly) recognized common law rule that acting in immediate self defense is an exception to criminal liability under FIP statutes.
The problem Mr. Lynch apparently struggles with, is that decades ago, he pleaded guilty to a crime he now says he didn't commit. But the very core of a GUILTY PLEA is an admission that YOU DID COMMIT the offense. If you show any hesitation about that, the judge simply will not take the plea and you'll be headed to trial. Period. Anyone who's spent any time in a courtroom knows this.
Since HE is the proponent of the argument that he's innocent even though by his own earlier accounts he pleaded guilty, HE bears the burden of persuasion to document his present contrary claim. One way to do this would be by obtaining the court records. But this he has consistently refused to do. We're just supposed to take his word for it that he magically got convicted without either a trial or a guilty plea, and that all this happened, not because of anything he did -- no, he's blameless -- but because of the Big Bad Conspiracy among the malicious cops, the prosecutor, the judge, and of course his own lawyer.
OK, that might conceivably be the state of play. If it is, the case records would shed some light on it. But it is exactly those records he consistently refuses to furnish or even make a slight attempt to obtain. Unlike Mr. Lynch, however, I will not suggest that he should therefore "STFU." Very much to the contrary, the more he writes, the better. Like TarslQtr, I've been saying for years that defendants have an amazingly robust penchant for self justification, and Mr. Lynch's continuing anger AFTER 44 YEARS, and without a shred of documentation to support his claims, proves the point better than I ever could.
Posted by: Bill Otis | Jul 22, 2022 1:35:45 AM
Mr. Otis has completely lost the plot. This thread isn't just about me, it's about everyone whose gun rights are being infringed, especially those whose alleged crimes were non-violent or in the distant past. And not just people who were convicted of felonies, but sometimes also misdemeanors, or who use medical marijuana or who are the victims of malicious gossip ("red flag laws"). After someone has fully "paid their debt to society," how many years must they have a perfectly clean record before they should get their rights back? Especially if they were never even accused of a crime of violence? Is there the slightest public safety benefit to such draconian punishments? Does it make America safer to lock up a boater for years for having a required flare pistol on his boat? (Note that it's also a crime to *not* have a flare pistol on your boat.)
If so, I ask, given that cars kill more Americans than guns do despite there being more guns than cars, why not permanently ban anyone who has ever gotten a traffic ticket from possessing a car, or even being in the presence of an unsecured car? If someone accused of riding his bicycle too fast were to, 44 years later, when visiting friends, momentarily walk through a garage containing a car with keys in its ignition, why not lock him up for a mandatory five year prison sentence, preferably during a pandemic that has killed more than a million Americans?
Is there any wonder so many Americans have such low opinions of police and prosecutors?
Getting back to me, I'm not going to waste my time trying to obtain a transcript that probably never existed, to satisfy someone who would accuse me of lying and forgery if it did exist and it said what I think it would? The only way Mr. Otis can know what documents in that courthouse say is to go there himself, or send someone he trusts to do so. If he doesn't want to, fine, but then he should stop insisting he somehow magically knows what they say.
Alford did not take an "Alford plea," as nothing of the sort existed at the time. He simply pleaded guilty, exactly as I did. Anyone who doubts this, read the case for yourself.
Am I still angry after 44 years? During the 99.99% of the time that I'm not discussing my case, no. But when I am discussing my case with someone who calls me a liar, yes. Mainly because, thanks to people like him, my case is still held against me. This makes no sense. Even if I had been guilty, I have long since paid my debt to society. If 44 years ago I had instead borrowed a million dollars and never paid back a cent, *that* debt would have been completely forgiven after just 7 years. Why the double standard? And, even if Mr. Otis doubts that I was proven innocent, does he also doubt that Virginia has, or had at that time, a 21-day rule that says that such evidence, no matter how strong, is irrelevant after three weeks? Does he also doubt that just this year SCOTUS ruled, not for the first time, that it's perfectly okay to execute a prisoner who has been proven innocent?
Posted by: Keith Lynch | Jul 22, 2022 9:15:49 AM
I really should let this go, but it's just too delicious.
Mr. Lynch says that six miles is walking distance. And it's quite true that an adult of normal health, including me, can walk six miles. But there is this recent invention called "Uber" that can save you the roughly two hours or slightly less it would take to do it. Now maybe Mr. Lynch has a couple of hours to spare during his workday to take a stroll like that, but I don't.
Mr. Lynch also says that it would be no use for him to retrieve the court records he suggests would back up his "I-wuz-cheated" story, because I would still disbelieve him. The question, however, is not what I would believe, but what the records would establish to a reasonable person Mr. Lynch more approves of. But the whole thing's just baloney anyway, since in the modern world, the way you show written material to someone is BY LINKING TO IT, like this: https://www.nytimes.com/roomfordebate/2016/06/08/should-an-unpopular-sentence-in-the-stanford-rape-case-cost-a-judge-his-job/a-judges-recall-is-warranted-for-an-indecent-sentence, or this, https://www.usatoday.com/story/opinion/2017/06/14/mueller-should-recuse-himself-from-investigating-russia--comey-william-otis-column/102827924/
Of course Mr. Lynch already knows this, just as the rest of us do, so it's hard to see much of a point in this shake-and-jive other than as a distraction from the basic fact that Mr. Lynch pleaded guilty (as he admits he did in the third comment on this thread) and now admits (or insists, it's hard to tell which) that his plea was false.
The guy has some problems to go along with his bile. He's accused me of being insane (his exact word), which he knows is false; and of being physically dilapidated, which is also false (but closer to true than it was a few decades ago, that's for sure). He just can't get over the fact that he was convicted of a crime (stealing) based on his own counseled guilty plea.
I can understand being unhappy with the losses or perceived losses of the past. That's human nature. What I understand less well is what's to be gained by clinging to grievance FOR FORTH-FOUR LONG YEARS, and pretending that your unhappiness is everybody else's fault.
Time to grow up and move on. Past time, really.
Posted by: Bill Otis | Jul 22, 2022 10:02:07 AM
Keith,
I suspect the boat flare question is a fringe case at best.
How many cases have there been of a FIP conviction with a guy who was just chilling on the lake with a flare gun in his boat safety box?
Posted by: TarlsQtr | Jul 22, 2022 12:12:51 PM
TarlsQtr --
And how many cases are there in which a FIP had a gun solely and immediately for self defense against an imminent threat of death or grave bodily harm, and then promptly got rid of the gun afterward, but was prosecuted for that behavior? I'm not aware of a single one, and none has been cited on this thread. I strongly suspect that it's a product of Mr. Lynch's fantasies.
Posted by: Bill Otis | Jul 22, 2022 1:27:45 PM
Again, this thread isn't just about me, it's about whether people who have had perfectly clean records for decades should receive further punishment, such as a permanent denial of all gun rights. Mr. Otis refuses to respond to any questions on this topic. Instead he resorts to repeatedly calling me a liar, as it it was all about me, and as if he's much more knowledgeable about my case than the crime victim, who hired me sight unseen right out of prison as he knew I was innocent, or the federal government, which issued me a security clearance after I described the circumstances of my wrongful conviction on my SF-86 form. Again, the state never disputed the proof of my innocence, they just said it was untimely, as it had been more than three weeks.
He seems to have a serious problem with reading comprehension, as I've told him these facts several times, and told him where he can find proof of them. And as he most recently responded to a comment in which I said "But I never suggested he actually walk it" by saying "Now maybe Mr. Lynch has a couple of hours to spare during his workday to take a stroll like that, but I don't." He keeps harping on my inability to say much about my plea of guilty except that I did plead guilty at the insistence of my court-appointed lawyer, I was not guilty of what it turned out that I pleaded guilty to, and that I did not knowingly lie. In his latest reply, he implies that he believes a transcript, or maybe even a video, of my allocution definitely exists, not just in the courthouse, but on the Web. Sure, everything any court reporter took down with their steno machine somehow ended up online. It would be nice. Why won't I simply Google "Keith Lynch allocution" to find it? I just tried that, and found nothing about me except my previous comments on this blog.
I stand my my claim that anyone who thinks someone who has had a perfectly clean record for more than four decades and who has never been accused of a crime of violence should permanently lose important civil rights for the protection of the public, is insane.
In a more recent thread, about sentencing, he says that "Neither a pardon nor an acquittal means the defendant didn't do it." That's literally true, but legally irrelevant. The fact that Mr. Otis has never been charged with a bank robbery doesn't mean he has never robbed a bank. For that matter, I've never seen any proof that he *hasn't* been charged with robbing a bank (mainly because I never bothered to check). So of course if he's ever convicted of a crime, the judge should sentence him as if he was guilty of every crime in the world.
Why is he even on this blog? This blog is about sentencing reform. His thesis seems to be that sentences are already perfect, except for not being harsh enough. But the only "evidence" he presents is to call anyone who presents evidence otherwise liars. He's like an NTSB investigator who insists that no plane has crashed in the US in the past 50 years, and calls anyone a liar who points out examples of crashed planes. About like Alex Jones claiming that the Sandy Hook massacre never happened (for which he has been successfully sued).
As for my "letting it go," as I just said, this isn't about what happened to me 44 years ago, it's about what is still happening to me to this day, and to millions of other Americans. Why doesn't the *state* let it go?
I can't provide him a transcript of my allocution, but I'll repeat what I said in a previous thread, now that he's once again denying the easily-proven existence of grossly defective plea allocutions:
Changing the subject from my case to cases with defective plea-bargain
allocutions in general, I refer you to the case of my friend Theodore
William Wells, federal prisoner number 12561-050. He was coerced into
pleading guilty to kidnapping, and was sentenced to ten years. I've
seen a transcript of his allocution, and confirmed that it left out
the element of preventing the alleged victim from leaving. Nobody
ever claimed that she wasn't free to leave at any time. She arrived
at Wells's home by Greyhound bus (crossing a state line), and the next
day from Wells's house phoned friends to come and pick her up, which
they did, using directions that Wells provided to them. Those facts
are all undisputed. I'm sure you can easily find a copy of that
defective allocution yourself. Given that you're interested in the
legitimacy of plea bargains, please do so.
Finally, has anyone actually confirmed that Mr. Otis is who he claims to be? He sounds to me more like a bad parody of a prosecutor than like someone with an actual law degree.
Posted by: Keith Lynch | Jul 23, 2022 2:32:21 PM
Keith,
You can literally just Google his name.
Posted by: TarlsQtr | Jul 23, 2022 3:15:54 PM
I did long since Google his name, which is how I learned how close to Arlington Courthouse he works. This came as a welcome surprise to me, since he could have been anywhere in the US.
But that doesn't prove that the person who posts here with that name really is that person rather than an impersonator. When someone doesn't know that it's possible to plead guilty without confessing, or that the text of decades-old plea allocutions isn't likely to found online, or that there have been thousands of exonerations in the DNA era, or that in the vast majority of cases there never was any DNA evidence and that the error rate in those cases isn't likely to be any lower, it's hard to believe he's a real lawyer, especially one who worked in criminal law for many years.
Posted by: Keith Lynch | Jul 23, 2022 4:04:56 PM
TarlsQtr. --
Captain Queeg puts in an appearance.
Posted by: Bill Otis | Jul 23, 2022 10:05:08 PM
