pageok
pageok
pageok
Yet Another Early Post-Heller Second Amendment Case:

Johnson v. United States (E.D. Mo. July 2, 2008), summarily rejects a felon's Second Amendment challenge to the federal ban on felons' possessing firearms:

Moreover, on June 26, 2008, the Supreme Court completely foreclosed Movant's Second Amendment ... constitutional challenge to this statute:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Johnson, who was representing himself, had felony convictions from the mid-1990s for assault with a deadly weapon, theft, and escape from custody. The pistol that he possessed in 2005, when he was arrested for being a felon in possession of a firearm, had been stolen. Because of Johnson's criminal history, which also included "a series of traffic and drug-related misdemeanors, and an additional misdemeanor resisting arrest," he was sentenced to eight years in prison.

TruthInAdvertising:
Where does the second amendment say anything about exceptions for felons, the mentally ill or "sensitive places"?
7.8.2008 2:13am
David Schwartz (mail):
Well, in this case it was a stolen firearm. If the State can't criminalize possessing a stolen firearm, it can't criminalize shooting someone because you feel like it.
7.8.2008 2:23am
Gene Hoffman (mail) (www):
Truth,


It's in the same place that the First Amendment mentions libel, extortion, fighting words, and fraud (fire in a theater amongst others).


If a felon should have a firearm he should now apply to have his rights restored. Heller will mean that his standard of review when BATFE denies him for lack of funding will be quite different.

-Gene
7.8.2008 3:10am
BD:
I do have one quibble with the court's reading of Heller: The court says Heller "completely forecloses" the movant's 2d Amendment challenge. But Heller merely says that nothing in it should be construed as casting doubt on longstanding prohibitions against felons having guns. Thus, Heller doesn't completely foreclose the felon's 2A challenge, it simply doesn't lend any support to it.
7.8.2008 7:30am
scineram (mail):
Where is the power to the felon ban enumerated?
7.8.2008 7:43am
PersonFromPorlock:
This 'principle' of deferring to longstanding practice ignores the many examples of longstanding practices (e.g., Jim Crow laws) that were unconstitutional. Is there really anything to it beyond the courts saying "We don't want to get involved?"
7.8.2008 8:34am
Jim at FSU (mail):
It isn't. The feds have been usurping the police power of the States for some time now.
7.8.2008 8:34am
Tyrant King Porn Dragon (mail):

This 'principle' of deferring to longstanding practice ignores the many examples of longstanding practices (e.g., Jim Crow laws) that were unconstitutional.

Yes, because forbidding a violent felon to own a firearm is just like Jim Crow.
7.8.2008 8:42am
Jim at FSU (mail):
Pro se litigants are the greatest threat to the gun rights movement right now.
7.8.2008 8:47am
Per Son:
I really do not think the gun rights crowd (yours truly) wants to use bans on felon having guns as poster children for the 2nd Ammendment.

Does anyone really think that the 2nd Ammendment is limitless or the founders intended it to be? If you do, do you also believe that fraud and defamation laws are unconstitutional?
7.8.2008 9:18am
cboldt (mail):
-- I do have one quibble with the court's reading of Heller: The court says Heller "completely forecloses" the movant's 2d Amendment challenge. But Heller merely says that nothing in it should be construed as casting doubt on longstanding prohibitions against felons having guns. --

.

Litigants and courts have a bad habit of misconstruing cases, and the type of misconstruction you point out here is common.
7.8.2008 9:19am
Oren:
Pro se litigants are the greatest threat to the gun rights movement right now.
Absolutely. The breathtaking overreach of these cases is making us look bad and imperiling the real gains (handgun bans and capricious 'shall issue' licensing).
7.8.2008 9:34am
Per Son:
I think the people who crafted the Heller case were amazing. They interviewed potenial plaintiffs for over a year and found the best representatives they could find.

I wish the gun show organizers used a little more discretion. I attended a show in Galloway, Ohio, and there were tons of boths with great people doing their thing. However, about 25% of the booths had little to do with guns. These booths varied but together they included books about the illegality of income taxes; conspiracy theories that would make Art Bell blush; shirts and stickers that were blatently racist; and the like. I have only been to one show, and friends who go to them regularly tell me my experience was hardly unique.

I go to a gun show to look at, buy, and learn about GUNS. I do not go to learn about falwed views of the 16th Amendment, and shirts exclaiming "If I knew the future, I would have picked my own cotton."

If anyone knows of gun shows in the metro DC/Virginia area that do not allow these clowns to further stereotypes of gun owners, please post.
7.8.2008 10:04am
PersonFromPorlock:
Tyrant King Porn Dragon:

Yes, because forbidding a violent felon to own a firearm is just like Jim Crow.

All I'm saying is that practice doesn't hallow; not Jim Crow laws and not prohibition of possession by a felon, which can and should be justified by other arguments.
7.8.2008 10:12am
Bored Lawyer:

Where does the second amendment say anything about exceptions for felons, the mentally ill or "sensitive places"?


The answer to your question, as much as I understand Heller, is this:
The Second Amendment does not CREATE the right to bear arms. That right pre-existed the Constitution and indeed the American Revolution. (It is part of the English Bill of Rights -- the English made William of Orange recognize this, among other rights, before he became King William III.)

So all the Second Amendment does is restrict the federal govt. from taking away what was already a right at English law, including English common law.

This is similar to the Habeas Corpus clause. It assumes there is a common law Writ of Habeas Corpus, already in existence. The Constitution restricts Congress' ability to suspend that right.

That being the case, you have to look to the prior history to ascertain the limits of those rights. No rights are limitless -- neither the right of habeas corpus nor the right to bear arms. IF it was accepted for many years that the right to bear arms can be taken away from felons and mental incompetents, then that is part and parcel of the law of that right.
7.8.2008 10:44am
Houston Lawyer:
I will agree that the vast majority of pro se gun cases will be brought by the ill informed pushing untenable theories. But the sheer volume of cases means that every once in a while, they will get one right. In addition, some of the judges who will hear these cases may be very sympathetic to Second Amendment claims.

For instance, to get a Class III permit to buy fully automatic weapons, you now need the sign off of the chief law enforcement officer in your county. My understanding is that many of these LEOs will never under any circumstances approve such an application. I don't think that arbitrary and capricious actions can withstand an individual rights approach.
7.8.2008 10:45am
CJColucci:
This 'principle' of deferring to longstanding practice ignores the many examples of longstanding practices (e.g., Jim Crow laws) that were unconstitutional. Is there really anything to it beyond the courts saying "We don't want to get involved?"
But Heller was written by Justice Scalia, and this "principle" is nearly the whole of his consitutional jurisprudence — anything he is used to, does not strongly disapprove of, and is not squarely foreclosed by Constitutional text is OK. How large a bet would you be willing to place on how he would have voted on Jim Crow in 1954?
7.8.2008 10:49am
Aultimer:

Per Son:

If anyone knows of gun shows in the metro DC/Virginia area that do not allow these clowns to further stereotypes of gun owners, please post.

Try specialty retail stores.
7.8.2008 10:51am
Per Son:
Looks like I am taking a trip to Manassas.

And all please note that I am not trying or wishing any view be censored in its entirety. Instead, I want to go to conventions and learn about new stuff without stand after stand with items recognizing Randy Weaver as an incredible person (he was a neo-nazi white supremacist, who sufferred a terrible tragedy). Granted, he suffered a terrible tragedy which no one else should suffer, but I look at Heller and his fellow plaintiffs, and lawyers like Alan Gura as heros.
7.8.2008 11:23am
darelf:
I think these cases are good for gun rights if they get widely publicized.

It allays the fears of the anti-gun crowd that suddenly the streets will be teeming with mentally ill/violent felon gun owners. It shows that the right is a reasonable one and is being handled in a reasonable manner. It will make it easier, IMO, when a case comes up where a non-felon has been denied this right.

Having these outrageous requests makes what would have seemed dubious to a moderate anti-gun person, look much more reasonable by comparison.
7.8.2008 11:25am
Visitor Again:
I do have one quibble with the court's reading of Heller: The court says Heller "completely forecloses" the movant's 2d Amendment challenge. But Heller merely says that nothing in it should be construed as casting doubt on longstanding prohibitions against felons having guns. Thus, Heller doesn't completely foreclose the felon's 2A challenge, it simply doesn't lend any support to it.

While I think the felon's argument has no chance of prevailing, I also think it deserves more than summary rejection based on Scalia's dictum in Heller. The excerpt from Johnson is barren of any legal reasoning; it merely quotes Scalia's assertion that nothing in the Heller opinion should be construed to cast doubt on the long-standing prohibition against felon possession of firearms. Scalia's observation was not a holding based on historical analysis or, indeed, any kind of analysis; Heller simply did not present the question presented in Johnson.

Scalia's majority opinion also said nothing in it should be construed to cast doubt on laws imposing conditions and qualifications on the commercial sale of arms. When those laws are challenged, as they will be, will it be sufficient merely to state that Scalia's opinion completely foreclosed such challenges. Of course not.


Well, in this case it was a stolen firearm. If the State can't criminalize possessing a stolen firearm, it can't criminalize shooting someone because you feel like it.

That's a red herring here. Eugene did not say the second amendment challenge in Johnson addressed a conviction for possessing a stolen firearm. All that was in issue was conviction for felon possession of a firearm.
7.8.2008 11:32am
Jim at FSU (mail):
We're not trying to have a dialog with the anti-gun crowd. We don't care what they think. The people we are trying to "reach" are the people in the middle. And believe me, those people in the middle don't care about these lawsuits one way or the other. Everyone I know that doesn't follow this issue closely has already forgotten about Heller.

No one outside of the legal community will pay any attention to Gura for the next 5 years until he brings another big case. The key to our success is in ensuring that his case is the one that arrives in 5 years instead of some pro se prisoner suit or a halfassed challenge brought by an "activist" who read too many GOA press releases.
7.8.2008 11:34am
Brooks Lyman (mail):
The Second Amendment, like the First (and probably all the others) has what should be obvious limitations similar to the various restrictions on free speech. These should be common sense, not something to quibble about unless they are abused (like the 70-year old man in MA who has owned guns for years, but was recently denied gun license renewal under the 1998 MA gun law because he had gotten into a fight in a bar in 1947)...

As for gun shows, 1) The wackos apparently also show up at flea markets and so forth. Liberty has its downside, the wise man simply grits his teeth and slogs through. 2) The concern about sales of guns to people who have not been checked out through the National Instant Check System (NICS) is a valid one; the NICS system is currently available only to licensed gun dealers; maybe the FBI should figure out some way for a gun show proprietor to get a temporary permit to use the NICS system and they should be required to provide this service at any gun show where guns are actually sold. The NICS check is a negative check, in that the system is provided (by phone or internet) with the buyer's name and SS# and the database spits out (usually within a few seconds) whether that person has any disabilities which prohibit him from purchasing a gun (felon, mental health, etc.).
7.8.2008 11:44am
Ohio State Law Student:
As of 12:50, Prof. Volokh is still beating Westlaw on this being a Heller citing case. It's not even up on WL yet. Kudos for breaking news, Professor.
7.8.2008 12:54pm
Johnny44 (mail):

It's in the same place that the First Amendment mentions libel, extortion, fighting words, and fraud (fire in a theater amongst others).

There is just one problem with that analogy. The First Amendment exceptions are governed by rules substantively limiting what the government may ban as fightingwords, defamation, true threats and obscenity.
The government could not ban all criticism of the president by calling it defamation thereby foreclosing all challenges to censorship of subversive speech. Sayin that Heller forecloses all challenges to felon possession laws is therefore similar to saying that Beauharnais forecloses all challenges to defamation laws, or that Chaplinsky forecloses all challenges to laws making indecent speech unlawful, or that Roth forecloses all challenges to antipornography laws.
Saying that a right is subject to a historical exception is not the same as abdicating the responsibility to define and enforce substantive limits to that exception, for otherwise saying that the exception trumps the right makes the right a nullity.
7.8.2008 1:52pm
tdsj:
Coming soon, a more legit issue: post-Heller challenges to the statutes that make it a crime for addicts or drug users to possess firearms.
7.8.2008 1:59pm
Per Son:
Johnny44: I agree with you to an extant. Judges need to adequately explain themselves - as did the 5th Circuit in the Emerson case.

Saying Heller says all x laws are bad is something that I would say is wrong. I guess that I believe that felon and similar exceptions are fully constitutional; however, as you said - there needs to be a willingness to define and enforce substantive limitations.
7.8.2008 1:59pm
Johnny44 (mail):
Per Son:
I agree, but still the most extreme variations of felon possession bans function as a lifetime prohibition for all former felons.
One problem with a categorical salvation of all felon possession laws is the incentive for the government to cast a net so broad that exercise of Second Amendment
rights inevitably makes everyone a felon thereby depriving them of the right itself.
For example, the government could upgrade all misdemeanors including traffick offenses to felonies without increasing the actual punishment thereby bringing all violators within the scope of the felon exception.
So read literally the felon exception would permit the government to 1. Upgrade all offenses to felonies; 2. Declare that all former felons shall hence be subject to the felon possession ban. Unless felon for Second Amendment purposes means something different from whether the legislature labels something a felony, I can't hardly see how the categorical felon exception won't swallow the rule in the event that a devious legislature desires to eliminate the right.
7.8.2008 2:28pm
Jimmy W (www):
ref: "The Gun Show Loophole"

Brooks, the NICS does apply to all dealers at the gun show. The majority w/ tables are "dealers" and have to conduct NICS on the people they sell to.

What people mean by the gun show loophole is where private individuals sell guns to each other without inter-state commerce. ie, a Virginian selling a gun to a Virginian. As these people don't have a business of selling guns, instead an infrequent hobby, they do not fall under the jurisdiction of the ATF.

The ATF (and all federal gun laws) derive their authority from the Interstate Commerce clause, and ATF is enforcing a tax law when it arrests an individual for "Dealing without a License".

Without engaging in interstate commerce, I can sell my guns to my neighbor, and it is no business of the ATF. My state may regulate it, but not the ATF.

Therefore, be careful what you wish for, in closing the "Loophole". Closing the loophole would mean giving the Feds a power that has no roots in the Constitution at all [whether gun laws had any Interstate Commerce roots is a debate for another day.] It would be an intrusion into intra-state commerce and state rights territory.
7.8.2008 2:31pm
Per Son:
Johnny44:

The fderal ban for felons does not just say "felony." Instead, 18 U.S.C. 922(g) prohibits any persons who has ever been "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to ever at any time or for any reason "possess... any firearm or ammunition."

So if they start calling everything a felony at the local and state level - the ban will still apply only to a set of crimes. They can call those crimes flubaroos or higgamowazzums, but the focus will be the sentence. Now if a legislature makes all infractions punishable by imprisonment for a terme xceeding a year - we have much bigger troubles than 2nd Amendment issues.
7.8.2008 2:34pm
Per Son:
Jimmy:

If growing marijuana for one's own personal medical use (or wheat) involves interstate commerce, I bet courts will find a sale between two Virginians to be interstate commerce.

The loophole means that anyone can go to anyone other non-dealer and buy a gun with no background check. I believe one either believes checks are ok, or not.

There are examples and counter-examples of that satisfy both sides of the debate. Regardless, I cannot imagine a law closing the loophole would be unconstitutional.
7.8.2008 2:41pm
Johnny44 (mail):
Per Son:
I am aware of 18 U.S.C. 922(g) but I take that variations of felon possession bans exist under local jurisdictions, and the court did not hint that the operative definition of felon in 18 U.S.C. 922(g) is the outer limitation of what the Second Amendment would permit the government to do, so state law could still seek to lower the threshold to something different.
7.8.2008 2:43pm
Per Son:
Fair enough. I guess the answer is "we'll see."
7.8.2008 2:48pm
Jimmy W (www):
Per Son,

In such a case, the buyer will have committed a felony of criminal posession, and the seller the "Straw Purchase" felony. Both are federal offenses.

It should be up to the states to close their own Gun Show loopholes. States rights and all that. Same w/ the marijuana stuff.
7.8.2008 2:52pm
FantasiaWHT:
Jimmy W -

Without engaging in interstate commerce, I can sell my guns to my neighbor, and it is no business of the ATF


Wickard says otherwise. Hell, Wickard makes something that completely lacks COMMERCE somehow be interstate commerce. Enter the argument that your purchase of a gun from a local affects interstate commerce because you could have bought it from an interstate dealer, but didn't.
7.8.2008 2:58pm
Jimmy W (www):
Fantasia, there is a limit between a "hobby" and a "business".

It would be a very interesting case to test the ATF regulations on "hobby" vs "business". ATF had raised the FFL fees and "business" requirements, in part to drive out most of the "kitchen table" dealers who, allegedly, abets the blackmarket in guns.

Basically, ATF now requires FFL holders to show a minimum business volume and profit to demonstrate a business requirement for an FFL, to renew their FFLs. The requirement is similar to IRS "hobby rule" for home businesses.

Therefore, someone who collects guns, and infrequently sells from his collection, would not meet the "hobby rule". At the same time, the ATF potentially can charge this person w/ "Dealing without a License", even though ATF would not have given this person an FFL due to "hobby rule". It is really a catch-22 for collectors here. It is but for the grace of the ATF that we don't have more firearm felons in the US.
7.8.2008 3:13pm
Per Son:
Jimmy:

We are not talking about a business. We are talking about a person growing wheat for there own personal consumption.
7.8.2008 3:23pm
Tony Tutins (mail):
Where is the power to the felon ban enumerated?

At common law, a felon permanently lost his civil rights, so this, too, is part of our Anglo-American legal heritage. Although not all are routinely taken away, he can still, for example, no longer vote or serve on a jury in most states, until his civil rights are restored. Beecham v. U.S. (1994) held that even if one's state restores your civil rights, people who committed a federal felony still have federal firearms disabilities.

The fderal ban for felons does not just say "felony." Instead, 18 U.S.C. 922(g) prohibits any persons who has ever been "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to ever at any time or for any reason "possess... any firearm or ammunition."

A felony is any crime punishable by imprisonment for a term exceeding one year, so this paragraph merely incorporates the usual definition of a felony.
7.8.2008 4:36pm
CDR D (mail):
There is an interesting "felon in possession" case which seems to clearly allow for a justification defense.

United States v. Gomez, 92F3rd770 (9th Cir 1996).

Opinion by Judge Kozinski:

http://wings.buffalo.edu/law/bclc/web/appgomez.htm
7.8.2008 6:04pm
Jimmy W (www):
Per Son, the chief of ATF has stated in open forum that the ATF views itself as enforcing revenue laws, wrt the NFA provisions (FFLs, SBR/SBSs, et al), rather than criminal laws. Therefore, the business provisions are relevant. Maybe things are changing now that it's in the DoJ.

Not sure if there has been a case affirming the private, intra-state, "hobby" firearm sales. The wiki on Form 4473, the form for background checks, says that some states require private sales to go through dealers.
7.8.2008 6:53pm
Kirk:
At common law, a felon permanently lost his civil rights
You don't have to go that far back to a time when a felon routinely lost much more than that.
7.8.2008 7:07pm
chris m (mail) (www):
the interstate commerce laws can apply to any gun in the same way they do in the gun free schools act...

because SOME part of the gun was involved in interstate commerce... even if it was just raw metal at the time... the federal government has the power to regulate the entire gun and the possession of said gun...

as for the felon in possession laws... all it will take is for someone that was convicted on a silly felony like hopping a rail car or passing a bad check to challenge it and it will probably be struck down...

my argument is that if the person is so dangerous that they cannot be trusted to own a firearm, then they are too dangerous to drive, use kitchen knives, touch poisons, get on an airplane or even just walk down the street... keep them locked up if they cant be trusted to own a gun...

what we need is a revamp of the criminal system... not a repeal of the felons in possession law
7.9.2008 5:54pm