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Ninth Circuit Holds That Possession of an "Assault Weapon" Isn't a "Crime of Violence":

Judge Kozinski's opinion on this issue — a matter of construing the Sentencing Guidelines, though informed by an understanding of what "assault weapons" are like and how they may be used — was just handed down yesterday. It struck me as an interesting example of how courts make decisions that rely on statutory text, precedent, action by other government bodies, and understanding of the world, and one that laypeople may find especially interesting because it's tied to (though not squarely a part of) the Great American Gun Debate. I've therefore included it below, for those who are interested; if you want the PDF version instead of HTML (or if you want the citations and footnotes, which have mostly been stripped below), see here.

Thanks to Steve Newman for the pointer.

Matt H (mail):
I found the argument reasonable, but the second to last paragraph is weird: Is Kozinski saying that prisoners do not have a right of self-defense? Near the beginning of the paragraph, when discussing prisoners, he suggests "recreational uses" are the only basis for possessing a deadly weapon. Three sentences later, when addressing "society at large," he claims self-defense is a legitimate basis for possession. Kozinski admits the "threat of violence is constant" inside a prison, so isn't that MORE reason a reasonable, non-aggressive prisoner would want a weapon? I can't follow his thought process; it seems glaringly inconsistent.
1.24.2006 6:57pm
Anderson (mail) (www):
Is Kozinski saying that prisoners do not have a right of self-defense?

This looks pretty easy; a prisoner's right of self-defense is outweighed by the realities of prison management, i.e., arming inmates is a bad idea.

Btw, great snark from the 5th Cir. in n.3 of the op--worth clicking on the PDF.
1.24.2006 7:04pm
Justin (mail):
I hope we'll hear all the textualists here screaming at this activist decision substituting the Judge's opinion of the law for that of Congress, who declared that assault weapons had no legitimate usage, regardless of the effectiveness of such a ban.

(PS - I think this is the correct decision, but I'm not a textualist, and if I were, I know damned well I couldn't get here).
1.24.2006 7:21pm
Houston Lawyer:
Anderson. Thanks for the tip, I missed that and it shouldn't be missed.
1.24.2006 7:22pm
Steven:
All I can say is that when Mr. Serna is resentenced I hope he gets the top of the range. He does not sound like someone I would want to be in possession of a weapon of any kind.
1.24.2006 7:43pm
Eugene Volokh (www):
Justin: I don't think it's quite a question of whether you're textualist or not. First, textualists generally focus more on being bound by the text of this particular statute (or, in this case, guideline); the question of how much attention they should pay to statements in other statutes, as an interpretive guide to this one, is more complex.

Second, unless I'm mistaken there's no explicit finding in the text of the federal assault weapons ban that assault weapons had no legitimate use. It's fair to interpret the enactment of the ban as a Congressional judgment that on balance the benefits of banning the guns -- though with exceptions, for instance for weapons that had been lawfully possessed before the act was enacted -- exceed the harms of banning the guns. But that's a purposive argument, not a textual one, and in any case doesn't equate to a judgment that assault weapons have no legitimate use. (Many things that are outlawed have some legitimate use.)

Third, as the opinion notes, the law had been allowed to lapse, so it's not clear what Congressional judgment should be taken away from the law's temporary existence.
1.24.2006 7:47pm
Chuck Jackson (mail):
Interestingly, the opinion classifies a silencer as "having few, if any, legitimate uses."

Here's a web site advertizing silencers (in Finland where they are legal). http://guns.connect.fi/rs/index.html Their advertising lists a number of legitimate uses including:
hearing protection for the shooter,
reduction of environmental noise (being a good neighbor)
reduction in vaporized lead emissions from firearms.
1.24.2006 7:58pm
nk (mail):
I agree with our host's main point. Possession of a prohibited or contraband item is a malum prohibitum and not a malum in se. (Please excuse my horrible Latin.) Assault, battery, robbery, rape, murder are crimes of violence. Having something the government does not want you to have is practically a political crime.
1.24.2006 8:10pm
nk (mail):
P.S. After the banning of the Hollywood Liberal I am afraid to post my web address.
1.24.2006 8:12pm
Ubertrout (mail) (www):
I hate doing this, but Mr. Bernstein dislikes enabling comments, and I felt a need to share this. From the report he linked to comes the following gem:

Private versus Public. Five of the 2005 Top Ten Whitest Law Schools are public schools (Kentucky, Maine, Montana, South Carolina and South Dakota). All but four of those public schools were significantly over-serving the white population of their state.

Rank. 70% of the 2005 Top Ten Whitest Law Schools were 3rd US News Tier or 4th US News Tier. This is particularly troubling since given the on average lower LSAT of minorities you would expect more minorities to be in the 3rd or 4th tier schools.
1.24.2006 8:23pm
Justin (mail):
Professor Volokh is correct.

Indeed, the act states that:

`(4) Paragraph (1) shall not apply to--

`(A) the manufacture for, transfer to, or possession by the United States or a department or agency of the United States or a State or a department, agency, or political subdivision of a State, or a transfer to or possession by a law enforcement officer employed by such an entity for purposes of law enforcement (whether on or off duty);

`(B) the transfer to a licensee under title I of the Atomic Energy Act of 1954 for purposes of establishing and maintaining an on-site physical protection system and security organization required by Federal law, or possession by an employee or contractor of such licensee on-site for such purposes or off-site for purposes of licensee-authorized training or transportation of nuclear materials;

`(C) the possession, by an individual who is retired from service with a law enforcement agency and is not otherwise prohibited from receiving a firearm, of a semiautomatic assault weapon transferred to the individual by the agency upon such retirement; or

`(D) the manufacture, transfer, or possession of a semiautomatic assault weapon by a licensed manufacturer or licensed importer for the purposes of testing or experimentation authorized by the Secretary.'.

Kozinski could and should have referred to this section in the main portion of his opinion.
1.24.2006 8:27pm
Justin (mail):
BTW, Professor Volokh, I do disagree with your first and third points. One of the "costs" of ignoring intent is you lose focus on how statutes are structured, and thus (as Scalia spends much time on in his A Matter of Interpretation, I believe) one *has* to interpret the statute based on Congress's understanding, FICTIONAL OR NOT, of the meanings of parallel statutes. It is through THIS mechanism that "intent" (regardless of whether it is classified as purpovist or not, see Alexander and Prakash's explanation of the fictional speaker) is manifested.

Third, as any textualist would tell you, what a later Congress's view of the merits of the earlier Congress's actions is irrelevant to determining the meaning of the earlier Congress.

If there is no TEXTUAL explanation as to why sawed off shotguns gets one treatment and assault weapons get another, then one resorts to admitting that judges are policymakers, which textualism specifically rejects.
1.24.2006 8:39pm
therut (mail):
Well who knew that the government said I was committing a crime of violence. Silly government. I wonder if they feel the same about my kitchen knives espically the "Evil butcher knife". The hunting knives would give some seizures. But them so would some of the things I use in surgery. Awful tools I say.
1.24.2006 11:02pm
Frank Drackmann (mail):
A Silencer is essential if you ever need to shoot a mime.
1.24.2006 11:10pm
Matt H (mail):
Anderson:

"Is Kozinski saying that prisoners do not have a right of self-defense? "

This looks pretty easy; a prisoner's right of self-defense is outweighed by the realities of prison management, i.e., arming inmates is a bad idea.


Sure, arming them is a bad idea, but that's a different question from severely punishing them (i.e., punishing them as if they committed a violent offense, even if they didn't) for creating their own weapons which may well be for defensive purposes. If the state regularly fails to provide a safe climate for prisoners, as Kozinski seems to admit, how can it punish them for trying to protect themselves? I can see an argument for trying to minimize the number of weapons due to the difficult "realities of prison management," but to charge someone with a crime for self-defense seems quite a bit excessive. Certainly it's easy to loathe prisoners because so many are scum, but if YOU were in prison trying to protect yourself from an affectionate gentleman named "Bubba" you would be singing a different tune.
1.24.2006 11:18pm
XX Fredrik Nyman (mail):
While I'm pro-gun and a big fan of Judge Kozinski, I don't find his argument quite convincing.

Specifically, I think that his reasoning "So long as the item in question has substantial legitimate uses, its mere possession cannot, without more, constitute a crime of violence." is problematic since there are no legitimate uses; since the felon cannot legally possess the firearm, any use (including hunting and target shooting) is inherently illegal.

I think that the prison case (mentioned at the end of the decision) is a more fitting analogy, and should have guided Kozinski in reaching the opposite conclusion. The question posed, after all, isn't about lawfully possessed firearms in society at large, but illegally possessed firearms by felons.
1.24.2006 11:41pm
therut (mail):
I think felons should have their 2nd amendment rights restored and their right to vote. This would be the most logical and it would also mean that violent felons need very long sentences with no parole. I think society would be made safer,freedom would be greater. If they can not be trusted to own a firearm then they need to be kept in prision because the law aganist felons owning firearms does not seem to deter crime. It makes alot of fuzzy people feel good though.
1.25.2006 1:20am
Kent Scheidegger (mail) (www):
The holding that mere possession of an assault weapon is not a crime of violence is quite sensible and is consistent with the statutory language. The problem, and the hair-splitting, arises in trying to distinguish earlier Ninth Circuit cases that held similar possession offenses were crimes of violence. Sometimes the law gets twisted in knots when a court cannot or will not overrule a precedent but does not want to extend it any further. (In the Ninth Circuit, one three-judge panel cannot overrule a decision of an earlier panel; only the court en banc can do that.)

For possession offenses, very few truly meet the requirement of that statute that possession alone creates serious potential risk of physical injury to another. Perhaps the court should go en banc to reconsider them.

I'm generally hard-nosed on criminal law questions, but I think it is a bad idea to expand enhancement provisions so broadly that they cover most cases. The purpose is to separate the truly bad dudes from the moderately bad dudes and differentiate their sentences accordingly. If everybody is classified truly bad, the purpose is defeated.
1.25.2006 1:48am
Paul Dietz (mail):
A Silencer is essential if you ever need to shoot a mime.

Don't ever do that. A mime is a terrible thing to waste.
1.25.2006 8:41am
Anderson (mail) (www):
Their advertising lists a number of legitimate uses including: hearing protection for the shooter,
reduction of environmental noise (being a good neighbor)
reduction in vaporized lead emissions from firearms.


Riiiight ... and mines are useful for killing large numbers of fish at once. Flamethrowers are great when your charcoal just won't catch. Not to mention that a tank is the logical next step for Hummer drivers.

I must admire the creativity of the silencer-ad author. It's all true, except that another prominent use for a silencer is killing people without being heard &thus caught.

(In a Thomas Harris book, a character tapes a 3-liter plastic Coke bottle around the muzzle of her pistol. Would that work? I think we have lots of gun-knowledgeable folks here.)
1.25.2006 9:37am
Don Miller (mail):
A two or three liter bottle taped to the end of a gun does work for 2 or 3 shots, as a disposable sound suppressor. If the bullet is supersonic, you will still hear the crack of the bullet as it passes.

I personallay hate the term silencer, because it is a misnomer. The gun isn't silent, it is quieter though.

BTW, shooting through a pillow provides a similiar result.

When I was in the Navy, I was a nuclear power technician. The guards at the Naval Reactors Facility in Idaho carried H&K MP5 submachine guns with integrated suppressors and subsonic ammunition. They were very quiet. From about 30 feet away, you only heard the mechanical sounds of the gun's action sliding back and forth and the tinkle sound as the brass bounced on the asphalt. It was an amazing demonstration.

No soda bottle or pillow would ever compare.
1.25.2006 10:49am
IMKierkegaard (www):
XX Frederik Nyman wrote:

While I'm pro-gun and a big fan of Judge Kozinski, I don't find his argument quite convincing.

Specifically, I think that his reasoning "So long as the item in question has substantial legitimate uses, its mere possession cannot, without more, constitute a crime of violence." is problematic since there are no legitimate uses; since the felon cannot legally possess the firearm, any use (including hunting and target shooting) is inherently illegal.

I think that the prison case (mentioned at the end of the decision) is a more fitting analogy, and should have guided Kozinski in reaching the opposite conclusion. The question posed, after all, isn't about lawfully possessed firearms in society at large, but illegally possessed firearms by felons.


Actually, I think you miss the issue in this case. I don't think the issue in this case is about "illegally possessed firearms by felons." Although the current conviction is for possession by a felon, the issue in the case is entirely about whether the prior state conviction should be properly used to enhance the sentence under the guidelines. The analysis in the opinion is entirely about whether that prior state conviction for possession of an assault weapon is a "crime of violence."

I posted on this very subject this morning HERE. Although it is not explicitly stated in the opinion, it seems to me that the only plausible inference is that Serna was *not* a felon at the time of the prior conviction. If he was, then I'd tend to agree with your rationale that there is no legitimate use of a weapon by him, a felon (at least under existing law where such possession is prohibited). My reading, though, is that there is nothing to suggest he was a felon at the time of the state court conviction that is the subject of this opinion.
1.25.2006 11:41am
Kevin P. (mail):
Anderson,

I am not sure what point you are trying to make. The "prominent" use of silencers that you claim seems to exist more in the movies than in real life.

Should firearm manufacturers advertise that their products are sometimes use to commit homicide and robbery?

Or Ford advertise that its cars can be used for drive-by shooting and bank robberies?

What point are you trying to make, exactly?
1.25.2006 2:38pm
Anderson (mail) (www):
What point are you trying to make, exactly?

I have to be more clear than I already was?

[POINT] The potentially legitimate uses of silencers are heavily outweighed by the social costs of allowing their use. [/POINT]
1.25.2006 4:09pm
Allan (mail):
Anderson, my understanding (for which I cannot give references, so feel free to bash) is that the Finnish equivalent of our Department of Health and Human Services recommends the use of suppressors for exactly the reasons given above, and that .22 suppressors (at least) are readily obtainable in France.

You know that suppressors are regulated but not prohibited by Federal law, right? California bans them, but other states (I believe Nevada and Arizona, among others) permit them.
1.25.2006 6:24pm
therut:
I also believe flame throwers are legal and not regulated in most states. Ask any rural person who actually owns more than a condo if they have used flame throwers to burn brush. Coarse an old tire and disel is the usual way with a torch. Most such people are not out there striking matches.
1.25.2006 10:07pm
Neal Lang (mail):
You know that suppressors are regulated but not prohibited by Federal law, right? California bans them, but other states (I believe Nevada and Arizona, among others) permit them.

The only question that matters (according to Supremes in Miller) is whether or not a "sound suppressor" - "has some reasonable relationship to the preservation or efficiency of a well regulated militia, ... . (and) that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." See Below:
The guards at the Naval Reactors Facility in Idaho carried H&K MP5 submachine guns with integrated suppressors and subsonic ammunition.

As do Navy SEALS and other Special Ops troops. In fact, as one of the most important missions of US Special Forces troops is working with indegenious troops (militia) it might just be that such a peice of "military equipment" is essential to military operating in the enemy's rear. During WWII US OSS developed a silenced firearm that was used by its operators on covert missions in Nazi occupied Europe. Some of these were even given to resistence members (militia) to carry out missions to "take out" key Nazi military officers.
1.26.2006 7:14pm
Neal Lang (mail):
The potentially legitimate uses of silencers are heavily outweighed by the social costs of allowing their use.

Exactly what are the "social costs of allowing their use". The social benefits would include quieter "plinking", which has pretty high value on the "legitimate uses" scale, IMMHO.
1.26.2006 7:19pm
Brett Bellmore (mail):
The chief social value of easier access to sound suppressors is a reduction in hearing damage among gun owners. As has been pointed out, a "silencer" doesn't render supersonic ammo quiet, but it *does* cut the noise level down enough to prevent you from losing your hearing.

It's not for nothing that I wear ear protection while hunting. If I could put it on the *gun* instead of my head, I could hear what was happening around me more easily.

Actually, I suppose the *chief* social value would actually be the marginal increase in our liberty. Is liberty not a value in this country anymore?
1.27.2006 10:49pm