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October 13, 2022
Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
A helpful reader sent me this morning an interesting new federal district court opinion concerning Second Amendment limits on a couple of federal criminal laws. Here is how the opinion in US v. Price, No. 2:22-cr-00097 (SD WV Oct. 12, 2022) (available here), gets started:
The question before the court is whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms, and 18 U.S.C. § 922(k), which prohibits possession of a firearm with an altered, obliterated, or removed serial number, are constitutional after the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). After considering the arguments presented here, I find that Section 922(g)(1) is constitutional, but I find that Section 922(k) is not. For the following reasons, Mr. Price’s motion to dismiss the indictment against him is GRANTED as to Count Two and DENIED as to Count One.
Based on my first quick read of this opinion, I am not sure I am wholly convinced by the analysis driving either part of the ruling. But I am neither a Second Amendment expert nor a historian, so what do I know about such matter (other than Bruen continues to provide a basis for a lot of new arguments against a lot of federal criminal laws).
Of course, the rejection of a Bruen-based attacks on felon-in-possession prohibition is already become quite common. As the Price opinion notes "Relying on the same ['law-abiding'] dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to Section 922(g)(1)." What still seems notable here is that the author of this opinion, District Judge Joseph Goodwin, reads Bruen to require him to strike down another part of 18 U.S.C. § 922 while making this point: "that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering." Price, Slip op. at 14.
October 13, 2022 at 07:04 PM | Permalink
Comments
But what's meant by a "law abiding" person? Is someone currently not law abiding if they've had a perfectly clean record for several decades? And if they were never even accused of any *violent* crime, why should they be denied their right to a firearm even if their conviction was just last week? And what if they never got a trial, but were coerced and/or tricked into pleading guilty?
Punishments should be finite and proportionate to the crime. If someone got a ticket for driving too fast half a century ago, we don't put them in prison for five years if they're found sitting in a stationary car, just because they *might* drive it, and if they do so they *might* drive it too fast, and if so they *might* hurt someone? It's insanity.
Posted by: Keith Lynch | Oct 14, 2022 12:08:00 AM
There are so many questions, Keith, about how this "law abiding" dicta is going to be turned into law in the Second Amendment context. For starters, this limit on the rights of "the people" is entirely a-textual. Indeed, the text of the Second Amendment describing who has rights ("the people") is textually the same as what the Framers used elsewhere in the Constitution and particularly in the First, Fourth, Ninth, Tenth and (essentially) the Fifth Amendments (which uses "person" and "any person"). Are we going to reinterpret all the rights in those provisions and elsewhere to only cover so-called "law abiding" persons?
Moreover, is a person with a speeding ticket excluded from the "law abiding" class? Heck, how about anyone who has ever sped or once went through a red light, whether they got a ticket or not? How about persons who drank alcohol before they turned 21? How about the millions now violating federal law by using medical marijuana consistent with state law? And so on and so on.
Judge Wilkinson once famously described Heller as the new Roe for being a judicially created constitutional doctrine with lots of unclear complications that the judiciary will have to keep inventing doctrines to manage. Perhaps we should call Bruen the replacement Roe since Bruen was decided the day before Roe was reversed in Dobbs.
Posted by: Doug B. | Oct 14, 2022 9:05:23 AM
Besides this case and the district court out in WDTX that struck down 922(n), are there any other similar decisions striking down federal criminal firearm statutes?
I am preparing to file a motion challenging the statutory provisions prohibiting possession of an unregistered firearm, possession of a machine gun, and engaging in the business of dealing firearms without a license.
Posted by: Tom Church | Oct 14, 2022 2:26:12 PM
It's amusing, I guess, that the one and only time you see any enthusiasm from the Left for gun rights is when we're talking about guns possessed by people who have run afoul of the law. Otherwise, all we hear is how bad, bad, bad guns are for society -- or as Barack Obama once famously said, all those hayseeds clinging to their guns and religion.
Posted by: Bill Otis | Oct 14, 2022 8:11:04 PM
Bill, do you disagree with the notion that none of the other rights secured for "the people" by the Bill of Rights are deemed wholly inapplicable to "people who have run afoul of the law"? That's the issue --- if the Second Amendment is understood to secure certain rights to "the people," what is the textual basis for elitist judges saying that this right actually only extends to certain people of their choosing (and how do us hayseeds know who are the Second Amendment chosen ones)?
Of course, almost everyone "runs afoul of the law" sometimes --- I would be surprised if more than 5% of the US population never engaged in underage drinking or traffic offenses. Indeed, I have done both, and so maybe you and some judges think I am to be excluded from "the people" with rights under the Second Amendment. But how can I or the rest of us hayseeds know? If gun rights are so very important, isn't it critical for us hayseeds to get some clarity on this matter? Until we do, I am expecting a lot more litigation, and I fear a lot less attention to the text of the Second Amendment than so-called textualist seem to claim is essential to proper constitutional interpretation.
Posted by: Doug B. | Oct 14, 2022 11:42:54 PM
Doug --
"Bill, do you disagree with the notion that none of the other rights secured for "the people" by the Bill of Rights are deemed wholly inapplicable to "people who have run afoul of the law"?
Your premise is wildly inaccurate. 2A rights are not "wholly inapplicable" to law breakers or anything close to that. The huge majority of criminal offenses and convictions are for misdemeanors, to which, obviously, felon-in-possession laws do not apply.
But your position is indefensible regardless. "The people" also includes the mentally deranged and criminally insane. Your "textualist" position obligates you to urge gun rights for them too, not just Martha Stewart et al. Are you going to? Good luck with that!
Or better yet, while Biden, Pelosi and Schumer are in charge of the political branches, get the federal FIP laws repealed. Why is it always up to someone else to do the Left's work for them?
Posted by: Bill Otis | Oct 15, 2022 10:27:46 AM
Bill, we are not talking about felon-in-possession statutes, we are talking about the reach of the Second Amendment and the dicta in SCOTUS constitutional rulings suggesting it only covers/extends to "law abiding" individuals. I can read/understand a federal or state statute that aspires to specify statutory rights (or prohibitions), and we can debate in the legislatures what makes for sound policy. But constitutional rights and jurisprudence takes the policy debate away from legislators and makes these matters only for judicial determination. Ergo the importance of and challenge of, in this context and others, understanding the reach and application of a-textual judicial dicta in Heller and Bruen that the Second Amendment only applies to so-called "law abiding" individuals. This is no longer "work" for the political branches, this is work created by SCOTUS rulings that are continuing to produce lots of litigation and leaves me confused about the scope of constitutional rights and proper means of interpretation.
I am not sure of your definition of "mentally deranged and criminally insane," but I think it very worrisome to envision application of any rights limited by state claims of mental illness to exclude large portions of our nation's population. Notably, the CDC states that "more than 50% [of Americans] will be diagnosed with a mental illness or disorder at some point in their lifetime" and that "1 in 5 Americans will experience a mental illness in a given year." Are you asserting that all these people are permanently and forever excluded from Second Amendment (and other) constitutional rights? Gosh knows, many of the political right think those on the political left are "mentally deranged and criminally insane," and vice versa. Are you and your elite jurist friends going to give us hayseeds a more clear accounting of who you think is enough of a good person to get constitutional rights as part of "the people"?
Of course, established constitutional doctrines permit restrictions on all sorts of rights as part of a lawful punishment and in other limited contexts -- eg, prisoners have lots of their rights diminished while in prison and kids have lots of their rights diminished while in school and elsewhere until they become adults. But I am not aware of any other constitutional rights that we say are forever wholly inapplicable to any and every person who might be considered to not be "law abiding." Maybe that will be how the Second Amendment gets interpreted, but it will be a great example of policy-making by the courts, not textual or originalist interpretation.
Posted by: Doug B. | Oct 15, 2022 11:20:11 AM
I for one *am* talking about felon-in-possession laws. What is a felon? Anyone who has *ever* been convicted of any felony, no matter how long ago, even if it was a non-violent crime, even if they never had a trial or an effective defense attorney, and even if the only reason they weren't able to later prove their innocent to a court is because they missed a deadline? In just three years my wrongful conviction will be further from the present than the first spaceship is from the first airplane.
Is there no such thing as an ex-felon?
And what is possession? Since I don't drive, friends sometimes give me rides. Some of them keep firearms in their car. Am I guilty of possession if I remain in the car while they get out to pump gas?
If I help a friend move house, am I guilty of possession if one of dozens of cardboard boxes I lift and carry for them contains a gun?
And what is a firearm? Here in Virginia, someone was convicted of possession and sentenced to a mandatory five years in prison because he owned a boat, and on that boat there was a flare piston, a mandatory piece of safety equipment. If the boat had lacked the flare pistol, he would have been guilty of a different crime.
Anyone who has served their sentence has paid their debt to society, and should immediately get all their rights back. And anyone who has committed crimes but never been charged for them is legally innocent until such time, if ever, that they are charged and convicted.
At the very least, why not restore all rights to anyone who finished their sentence more than however many years after which the recidivism rate drops to that of never-convicted people the same age? Such a person is obviously either reformed or was innocent all along. What purpose does continued loss of rights serve, other than gratuitous cruelty?
Posted by: Keith Lynch | Oct 15, 2022 2:50:43 PM
Doug --
"Bill, we are not talking about felon-in-possession statutes..."
...says the fellow who titled this entry (emphasis added), "Notable new district court opinion strikes down federal serial number law but UPHOLDS FELON POSSESSION BAN applying Bruen."
"But constitutional rights and jurisprudence takes the policy debate away from legislators and makes these matters only for judicial determination."
Thank you for adding insightful support to my suggestion that the whole FIP debate at the federal level would be moot if Biden, Schumer and Pelosi would just repeal the FIP statute. I think the best time to do this would be, ummmmmm, about five days before the midterms, no? Congress should get on board with a full-throated Bill of Rights, no??
"Ergo the importance of and challenge of, in this context and others, understanding the reach and application of a-textual judicial dicta in Heller and Bruen that the Second Amendment only applies to so-called "law abiding" individuals. This is no longer "work" for the political branches, this is work created by SCOTUS rulings that are continuing to produce lots of litigation and leaves me confused about the scope of constitutional rights and proper means of interpretation."
But Congress could play a major part in the most nettlesome item sticking in the "law abiding"-concerns throat, to wit, FIP bans. Let's just do one thing at a time. Make life easy! The Democratic majorities could repeal FIP bans tomorrow, significantly narrowing the scope of any remaining 2A infringements. I mean, Dick Durbin would be OK with that..........wouldn't he??? And AOC?
"I am not sure of your definition of 'mentally deranged and criminally insane,'"...
Fine, then use your own definition, then tell us whether, under that definition, it would be unconstitutional for Congress to ban mentally deranged and criminally insane people from possessing guns. Don't worry, I'll wait.
"CDC states that "more than 50% [of Americans] will be diagnosed with a mental illness or disorder at some point in their lifetime" and that "1 in 5 Americans will experience a mental illness in a given year." Are you asserting that all these people are permanently and forever excluded from Second Amendment (and other) constitutional rights?"
Nope, just asserting that I get to state my own positions in my own words, rather than have tortured versions of them suggested for me. But we've been over that ground sooooo many times before................
" Are you and your elite jurist friends going to give us hayseeds a more clear accounting of who you think is enough of a good person to get constitutional rights as part of "the people"?
Well phooey, Doug, there you go again. Just as I'm about to get mad at you, you crack me up. I love it when the Princeton/Harvard guy refers to himself as a "hayseed." As for my elite jurist friends............oh, if you only knew! But some things stay off the Internet.
Posted by: Bill Otis | Oct 15, 2022 4:03:14 PM
I wrote "In just three years my wrongful conviction will be further from the present than the first spaceship is from the first airplane." I apologize for the arithmetic error. Those events are 57.7 years apart. My alleged crime was 44.8 years ago. Instead I'll say further than the time from the First World War to the Vietnam War, or from the Second World War to the fall of the Berlin Wall.
Posted by: Keith Lynch | Oct 15, 2022 4:08:42 PM
Bill, most states have FIP statutes, so even federal reform would not moot the issue of whether and how the Second Amendment has a unique a-textual limit that excludes large classes of Americans. And I do think legislators at the federal and state level ought to feel a commitment to comply and legislate in accord with the Constitution, which is why clear jurisprudence from SCOTUS is so important. Many legislators on both sides of the aisle view various forms of gun control to be important to advance public safety, so I do not expect repeals of FIP laws or other gun laws unless and until it is clear the Constitution demands as much -- providing yet another reason we need clarity from SCOTUS on this front.
Just as I think it would be unconstitutional for Congress to say the First or Fourth or Fifth Amendments forever and categorically do not apply to anyone who has ever had mental illness, I do think it would be unconstitutional for Congress to say the Second Amendment forever and categorically does not apply to anyone who has ever had mental illness. I do think that if someone has been, under a proper process, adjudicated to be dangerous because of a mental condition, then that person can be deprived of guns until he or she can establish by some process that they are no longer dangerous. But I do not branding a person "mentally deranged," whatever that means, entails that he or she no long has any constitutional rights. Is that your belief?
In the end, you likely want sound gun control policy. So do I. But limiting Second Amendment rights though invented, a-textual limits is judicial policy-making, not constitutional interpretation. That is my main point: modern Second Amendment jurisprudence is just policy-making by unelected jurists. I surmise you like that form of judicial policy-making in this context, while others prefer it in other contexts. But, since you often extol the virtues of honestly, I would like to see you honestly acknowledge that this is what's really afoot here.
Posted by: Doug B. | Oct 15, 2022 7:32:46 PM
Doug --
"I do think it would be unconstitutional for Congress to say the Second Amendment forever and categorically does not apply to anyone who has ever had mental illness."
Good try, but not what I asked. What I asked was -- present tense -- using "your own definition, then tell us whether, under that definition, it would be unconstitutional for Congress to ban mentally deranged and criminally insane people from possessing guns."
If you're the textualist you occasionally claim to be, your answer has to be that it's unconstitutional for the legislature to ban a person PRESENTLY criminally insane from possessing guns, since the Second Amendment contains absolutely no such exception. As completely crazy person is still a person.
The only problem is that SCOTUS is never going to say any such thing, as we both know (and I strongly suspect, both want).
The Fist Amendment likewise contains no exception allowing legislatures to ban a person from, shall we say, shouting FIRE in a crowded theater. But no court anywhere is crazy enough to say that a ban like that is a First Amendment violation. Textualism does not require judges to take leave of their senses.
Cutting to the chase: Textualism is the strongly preferred method of interpretation, but has exceptions just as virtually everything has exceptions. This is not exactly earth shaking. The sensible debate is about what those exceptions are and how we go about deciding. Abortion as blessed in Roe was a preposterous exception to a textual reading, as was widely recognized at the time by, e.g., Ginsburg and John Hart Ely. Banning previously convicted felons, by contrast, had and has a long historical pedigree, which is why it got embraced by all five conservatives in Heller and implicitly even more firmly embraced by the four dissenting liberals.
If you want to litigate the contours of the 2A, it's completely fine with me, but don't expect to knock out the FIP statutes. And let me add the footnote that the idea that convicted felons only want to be able to possess guns for defensive purposes is a pure, if frequent, fiction. The more typical reason is to use them offensively, for example, to blow the head off of the competing smack dealer. I've been around the track more often than that.
Posted by: Bill Otis | Oct 15, 2022 9:54:32 PM
Weakening the 922(g)(1) argument, I believe, is the definition in 18 USC 921(a)(20), that exclude from the reason of 922(g)(1) felons convicted of "any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices..." "Similar offenses" have been held to include securities law violations. Reyes v. Sessions, 342 F. Supp. 3d 141 (D.D.C. 2018).
So not all felons are prohibited from possessing guns and ammo, only some. And we need not even get started on a former felon living in a state that happens to restore all civil rights.
Posted by: Tom Root | Oct 16, 2022 10:00:07 AM
Bill, thanks for at least admitting that textualism often can and will be modified by judicial "senses." And, as we both know, judicial "senses" have a way of evolving --- which is why I have long thought the only honest account of how all judges conduct constitutional interpretation is a form of living constitutionalism (now often hidden under a variety of semantic cloaks). Maybe to embrace your helpful labelling, and to honor our English heritage, we should call this "sense and sensibility constitutionalism."
As for the link between guns and self defense, my understanding is that no advocate for Second Amendment rights is eager to limit the right to just keeping/bearing arms in self defense. Moreover, there is no doctrine at common law or in modern law that says that any group of individuals is forever or even at a particular moment barred from using reasonable force in self defense. I do not know who you want to call "criminally insane" -- is that someone criminally convicted who seems crazy like Steve Bannon or someone acquitted by reason of insanity like John Hinkley? In either case, if an angry person were to attack Bannon or Hinkley on the street with a knife, they would surely have a right to punch the attacker in a reasonable use of defensive force. Do you disagree?
And that is what rankles: judges and justices and you are making up a crazy quilt of illogical rules for gun regulation that has no connection to either (a) common law or modern self defense doctrines OR (b) historical practices. Broad felon bans do NOT have a "long historical pedigree," especially at the federal level. If so-called originalists want to lean on history to cloak their "senses" of good policy, they ought at least make some effort to pay attention to the actual history. (Like all judges using their "senses" to be policy-makers, I am not a historian; I have read there are some older precedents for barring "dangerous" persons from access to guns, but many persons with felony convictions are not "dangerous.")
It always seemed to me that voters did a nice job debating/securing gun rights at the ballot box when the judicial "sense" of the Second Amendment was captured by former CJ Burger's assertion that an individual rights approach to the Amendment was a "fraud." But, judicial personnel led to the judicial "sense" evolving to create an individual rights approach to the Amendment. But if and whenever the Justices are going to strike down duly enacted laws based on that notion of rights, they need to articulate clear and administrable law/policy for the rest of us to know what is allowed and what isn't as a matter of regulation and individual behavior.
Before Bruen, it seemed public safety concerns could be part of the new Second Amendment jurisprudence that the Justices were inventing. But now that Bruen has articulated a new accounting of judicial "senses" of the Second Amendment, I am going to continue asking questions on behalf of us hayseeds who would benefit from the judicial elites trying at least a little harder to explain their latest "senses" today of what the Second Amendment means (at least before they evolve again). But, in the end, anyone with their eyes open know what is really afoot --- more judicial policy-making based on their living "senses" and not on the actual text or history of the Constitution.
Posted by: Doug B. | Oct 16, 2022 10:52:57 AM
Mr. Otis, you say, "And let me add the footnote that the idea that convicted felons only want to be able to possess guns for defensive purposes is a pure, if frequent, fiction. The more typical reason is to use them offensively, for example, to blow the head off of the competing smack dealer."
Nobody thinks that's the "only" reason. Some want to hunt deer. And some, including me, only want to "possess" guns incidentally, e.g. when helping a friend who owns a gun to move house. If I were to see an abandoned pistol on a street, with children playing nearby who were likely to find it and play with it, should I get a mandatory five year sentence if I were to kick it into a storm drain? As you know, that is constructive possession.
What's more likely in that scenario, given that I've never been accused, much less convicted, of any violent crime or any drug crime? That I wanted to keep a playful child from blowing his friend's head off, or that I intended to come back later to retrieve the piston from the storm sewer so as to go into business as a drug dealer by killing rival dealers?
Again, it's been 44.8 years since my wrongful conviction. Even if I *had* been guilty of that non-violent office burglary, would it be accurate to call me a felon rather than a former felon?
You ask about insane people possessing guns. I point out that we currently have an insane government possessing guns, and often using them to shoot people. The insane government also passes insane laws.
You speak of states that restore all civil rights. Here in Virginia, former Governor McAullife claimed to restore all civil rights to everyone who had completed their sentence. But that somehow didn't include gun rights. To his credit, at least he made that omission clear, lest someone go to prison for the crime of taking him literally.
Getting back to felonies that were never charged, do you think that anyone in the Old Dominion who had consensual oral sex with their spouse before 2003 should voluntarily refrain from ever possessing a firearm? Because they were guilty of a felony. So if they were to buy a deer rifle, they might magically turn into Walter White, and take out rival drug gangs. It could happen.
Posted by: Keith Lynch | Oct 16, 2022 2:40:08 PM
Oh, and speaking of insane people and of John Hinckley, note that as of June 15th he's freed of all restrictions. He's allowed to possess firearms, even AR-15s. Note that his shooting of President Reagan and others was more recent than the non-violent crime I was falsely convicted of. I wonder who owns the gun he used in his crime, and whether he could buy it back.
Posted by: Keith Lynch | Oct 16, 2022 2:52:51 PM
Keith Lynch --
Do you think that the text of the Second Amendment means that the state cannot adopt a criminal statute that forbids a presently insane person from possessing a gun?
Posted by: Bill Otis | Oct 17, 2022 10:02:36 PM
Doug --
"Bill, thanks for at least admitting that textualism often can and will be modified by judicial 'senses.'"
"Admitting"???
This is like thanking me for "admitting" that the First Amendment provides no defense to shouting fire in a crowded theater. It's not an "admission." It's just normal sanity.
The Framers had it. The Court has it. I have it. And so, while we're at it, do you.
You're up to your old tricks -- in this instance, trying to turn normal common sense into a Grand Doctrine of the Living Constitution, in which courts can find whatever they care to in its newly discovered "evolved" meaning.
It's a prescription for judicial imperialism. I'm not buying it. I doubt the present Court will either.
Posted by: Bill Otis | Oct 17, 2022 10:11:16 PM
Okay, Bill, do you want to call your interpretive philosophy "a-textual normal sanity constitutionalism"? Or do you want to call it "a-textual normal common sense constitutionalism"? All I know is that my kids often think I have little common sense, and I sometimes think the same about them. Like "senses" or other mental instincts, "common sense" is often in the eye of the beholder and also evolves in various ways over time. See, e.g., Marcus Arvan, "Common sense leads philosophy astray," https://iai.tv/articles/common-sense-leads-philosophy-astray-auid-2075
("First, commonsense can be regressive, wrongly presupposing the truth of prevailing prejudices. For example, in his 1680 work Patriarcha, British philosopher Robert Filmer used commonsense religious beliefs in his time to defend the divine right of kings, the view that monarchs rule with absolute, God-given authority. Second, to the extent that commonsense can be used to challenge prejudices, it can — if it is not adequately grounded in facts beyond commonsense — be recklessly utopian. For example, although Karl Marx gave what many take to be a strong commonsense argument against capitalism, Marx also claimed that a proletarian revolution to destroy capitalism will (somehow!) give rise to true Communism: a stateless way of human life without private property or exploitation. Suffice it to say, that prediction has never materialized. What has materialized from Marxist revolutions are rivers of blood: 20-62 million deaths in the Soviet Union, 40-77 million deaths in Maoist China, 1.3 million deaths in the Killing Fields of Cambodia, and so on.")
I am fine with whatever label you want to use, Bill, as long as it is clear, as it should be to anyone paying attention, that your latest accounting of constitutional interpretation has nothing to do with textualism or originalism. Also, whatever you want to call it, I feel comfortable I can make a pretty good case against acquitted conduct sentence enhancements (and maybe even for Miranda) by appealing to "normal sanity" or "normal common sense."
Face it, Bill, you have already had to give up the game and that's my main point about what we are seeing post-Bruen: as textualism and/or originalism stop being able to be contorted to give you the policy outcomes you want, new concepts like "senses" or "normal sanity" or "normal common sense" become the means to get where you want judges to take us. (My old classmate, Adrian Vermeule, has decided to embrace the label of "common good constitutionalism" as conservatives throw off the cloak of originalism as a means to desired ends, and he at least gets more points than most for candor here.)
Posted by: Doug B. | Oct 18, 2022 1:19:55 PM
Mr. Otis: You ask me "Do you think that the text of the Second Amendment means that the state cannot adopt a criminal statute that forbids a presently insane person from possessing a gun?"
I don't tend to think in terms of legal frameworks, but in terms of justice. For instance I would say that "Dred Scott" was an objectively bad decision even though the 13th, 14th, and 15th amendments hasn't yet been written. The Second Amendment and the rest of the Bill of Rights don't establish rights, they recognize pre-existing natural rights.
So, do I think it's okay to forbid a presently insane person from possessing a gun. Yes, I do, if a jury in a fair trial has determined that a person is presently insane and is dangerous to others. (No "red flag laws".) Similarly, I think it's okay to forbid someone currently in prison from possessing a gun.
Now please answer some of my recent questions. For instance is our government dangerously insane if it throws a person in prison for kicking a pistol into a storm drain to keep it out of the hands of small children, even if that person was convicted of a non-violent crime decades ago? And is it sane to allow John Hinckley, who shot four people including the president 41 years ago to possess a gun, but now allow me to possess one because I allegedly committed a non-violent crime 44 years ago? If so, please explain why.
Since ownership and possession are not the same thing, Hinckley could make a good argument that he still owns the gun with which he shot Reagan and four others, and should be allowed to retrieve it from the Reagan Library. And, given the laws in force, you could make a legal argument (I won't say a (morally) good argument) that unless he removes it, if I were to accept a position as the director of that library, I should go straight to prison for possessing that same gun. Is that your position?\
Posted by: Keith Lynch | Oct 18, 2022 9:20:33 PM
I apologize for the several typos in the previous comment. I skip proofreading since otherwise my comment is likely not to be posted due to a time-out, forcing me to either start over or give up.
Posted by: Keith Lynch | Oct 18, 2022 9:24:33 PM
Keith Lynch --
"...is our government dangerously insane if it throws a person in prison for kicking a pistol into a storm drain to keep it out of the hands of small children, even if that person was convicted of a non-violent crime decades ago?"
Our "government" consists of many thousands of people, and I doubt a collective that big can be sensibly characterized as sane or insane. I would say that it would be unjust to imprison someone convicted of a non-violent crime decades ago for kicking a pistol down a sewer to keep it out of the hands of children. Indeed, it would be so obviously unjust that over the more than 200 years our country has existed, and with a present population of over 330,000,000, I am not aware of that ever having happened to a single person ever.
Is it theoretically possible? Sure, it's theoretically possible in the same way that my being signed by the Lakers to play alongside LeBron James is theoretically possible. "Anything is possible," as lawyers are wont to say. Is it realistically possible? No.
"And is it sane to allow John Hinckley, who shot four people including the president 41 years ago to possess a gun, but now allow me to possess one because I allegedly committed a non-violent crime 44 years ago? If so, please explain why."
Again, I don't think sanity is the right paradigm for thinking about that question. Judgments can be well grounded or poorly grounded without being painted with more florid characterizations like sane or insane.
If memory serves, Hinckley was never found guilty, and was instead found not guilty by reason of insanity. So the typical FIP statute would not apply to him anyway. Still, I would think it pretty dicey to allow him to possess a gun. I guess he's been found safe to be released, but such judgments are not infallible. His lawyer might have told the court prior to his release whether he was or was not planning to obtain a gun. I doubt he was, but I haven't been following his case so I don't know.
Not having seen any documentation of your case from decades ago, and not knowing you, I am unable to draw the specific judgment you seek. But law is a practice in line-drawing, so the real question is whether the line is drawn in a sensible place. For example, the right to vote is the very foundation of democracy, but you have to be 18 to vote. I'm quite sure there are 17 year-old's with the maturity, judgment and intelligence to vote, but they can't anyway. Likewise, there are 30 year-old's who are foolish, ignorant and irresponsible, and they can vote in every election.
Is that just? Is it sensible? Probably not when subject to granular examination. But that is not the question the law asks. Instead, it asks whether the legislative judgment to draw the line where it's drawn is reasonable taken as a whole. It is, so that's that.
Same deal with FIP statutes. My expectation is that the answer will be the same, too: That while there are likely to be instances of individual injustice, the legislative line is drawn in a reasonable place overall (felony conviction), and thus is likely to remain undisturbed by the courts, as it was in the Heller dictum and in the holding of the case that began this entry.
Posted by: Bill Otis | Oct 18, 2022 11:43:02 PM
Mr. Otis: I couldn't disagree more that "the legislative line is drawn in a reasonable place overall (felony conviction)," and I'm bothered that anyone's moral intuition can be so far out of whack. I think the outermost extreme would be saying no gun possession for five years after a non-violent felon completes his sentence, and for ten years after a violent felon does. It's just so easy for anyone who isn't wealthy to be falsely convicted.
And there are so many actions that so many people aren't aware are felonies. For instance when I attempted to buy several certificates of deposit for $10,000 each, my banker suggested getting several $9000 ones instead, as it would be less paperwork for the bank and less privacy loss for me. Fortunately, I happened to know that would be a federal felony, so I refused, and took my money to a different bank. And, as I mentioned, anyone in the Old Dominion who had oral sex before 2003 is guilty of a felony.
I'm not aware of anyone who was imprisoned for kicking a gun into a storm drain, but I know what the law says, and it's non-discretionary. A jury that obeys their oath *has to* convict such a person if the person had ever been convicted of any felony and had constructively possessed that firearm, even if it was only for a fraction of a second. Sure, the prosecutor could choose not to indict, but relying on prosecutorial discretion is a fool's game. Countless bad laws have been passed with the argument that the law will only be used against bad people, and only a perverse person would ever thing a prosecutor would misuse it. But invariably one does. Trusting an eager prosecutor with an badly-written law is like trusting an insane person with a loaded gun.
Posted by: Keith Lynch | Oct 22, 2022 12:29:41 AM
In this case https://oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2014-2485&cmid=2734460
municipal police without subject matter jurisdiction fabricated a violation of 18 USC 922g8 in a search warrant affidavit. The state magistrate, also without subject matter jurisdiction authorized an illegal search and seizure. Municipal police executed the illegal search and seizure and the district attorney without subject matter jurisdiction prosecuted the fabricated violation of 18 USC 922g8 or in the alternative prosecuted a fabricated violation of state law that doesn't exist.
A wrongful conviction of a felony, federal or state, is a nullity. If through procedural means one is barred from appeal the federal courts may revisit the procedural bar for the indictment of federal firearm firearm prohibition or through the malicious prosecution by the state of firearm prohibition based on a previous wrongful conviction. A wrongful conviction is essentially fraud upon the court and a conviction gained through fraud is a nullity.
Posted by: Clint Patrick | Aug 28, 2023 12:07:17 PM
