pageok
pageok
pageok
District Court Wrongly Follows Pre-Heller "Collective Rights" Circuit Precedent:

Here's U.S. v. Lewis, from the District of the Virgin Islands:

Malik Ostalaza ... and his co-defendant, Ronald Lewis, Jr., were charged in May, 2008 in a five-count indictment. Count One charges Ostalaza with possession of a firearm with an obliterated serial number, in violation of Title 18, Section 922(k) of the United States Code ("Section 922"). Counts Four and Five charge Ostalaza with unauthorized possession of a firearm, in violation of Title 14, Section 2253(a) of the Virgin Islands Code [which essentially appears to be a ban on possessing a firearm without a license -EV]. Ostalaza is not charged in Counts Two and Three.

Ostalaza now argues that Counts One, Four and Five should be dismissed because they violate the Second Amendment of the Constitution. In his motion, Ostalaza neglects to substantiate that argument with citations to any authority. Instead, Ostalaza points to District of Columbia v. Heller, a case that was pending before the Supreme Court at the time his motion was filed. Ostalaza states only that he "reserves the right to challenge" the indictment on Second Amendment grounds.

In United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997), the Court of Appeals for the Third Circuit explained that "the Second Amendment furnishes no absolute right to firearms." Relying on its decision in Rybar, in United States v. Willaman, 437 F.3d 354, 356-57 (3d Cir. 2006), cert. denied, 547 U.S. 1208 (2006), the Third Circuit rejected the defendant's contention that Section 922 violates the Second Amendment. In reference to the defendant's argument that Rybar "is simply bad law," the Willaman Court stated that "plainly [Rybar] is binding on this panel."

[Footnote: Moreover, while the Supreme Court acknowledged in Heller the right of the individual to possess a firearm unconnected with service in a militia, the Court also held that that right is not unfettered. See 2008 U.S. LEXIS 5268, at *95 n.26 (identifying "presumptively lawful regulatory measures" and noting that the Court's list of those measures "does not purport to be exhaustive").]

It may well be that the defendant didn't provide enough argument to support his motion to dismiss. I'm also pretty sure that the courts will find that the right to keep and bear arms isn't substantially burdened by the ban on knowingly possessing a firearm with an obliterated serial number; and they may well uphold the Virgin Islands license requirement, or conclude that only someone who has tried to get a licensed but been denied one is entitled to challenge the requirement.

But the court's reliance on precedent strikes me as quite weak: Rybar was decided by the Third Circuit on the theory that the Second Amendment only protects gun possession when it has a "connection with militia-related activity." Heller rejects that theory, which means that Rybar and Willaman are no longer good law.

Certainly in the Third Circuit (and to my knowledge in all other circuits) "a subsequent panel may depart frm a previous panel's decision if required to do so by an intervening Supreme Court decision," Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 2008 WL 2420729 (3rd Cir. June 17) (paraphrasing earlier precedent). I take it that district courts can and should do the same: "[W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority[,] ... a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

So I don't think the district court was entitled to punt the matter to the pre-Heller collective-rights precedent. It needed to do the Heller analysis (or, if appropriate, decline to deal with the Second Amendment question, if the litigant hadn't adequately argued it). And simply saying that under Heller the "right is not unfettered" isn't an adequate justification for the court's decision, either: Obviously some fetters are permissible but others aren't, so the question is why these particular gun controls are justified given the Heller reasoning.

UPDATE: I should note that, technically speaking, the Second Amendment might not apply to the Virgin Islands of its own force: The Insular Cases from the early 1900s held that only some constitutional rights apply to such territories, and the jury rights (grand jury, criminal jury, and civil jury) and the Second Amendment have often been seen as not being included. Nonetheless, Congress has expressly applied "the first to ninth amendments inclusive," except the Grand Jury Clause, to the Virgin Islands.

Originalism Is Useful (mail):
I cannot view the pdf. Is it just me? [Whoops, fixed it, thanks! -EV]
7.8.2008 8:32pm
Dilan Esper (mail) (www):
I'm also pretty sure that the courts will find that the right to keep and bear arms isn't substantially burdened by the ban on knowingly possessing a firearm with an obliterated serial number

I quite suspect you are right; however, I would note that a certain type of libertarians who comment on RKBA threads here would probably be apoplectic that the government could impinge on their Second Amendment right to attempt to make their gunfire untraceable and uninvestigable by the government.
7.8.2008 9:04pm
Repeal 16-17 (mail):
Regardless as to whether the Third Circuit agrees with this judge, it should vacate and remand this judge's decision (including overruling Rybar and Willaman). Make the judge do his job.
7.8.2008 9:20pm
BruceM (mail) (www):
Dilan: I'll take the bait.

I see no reason why constitutional rights can be infringed to force those who exercise those rights to be make law enforcement's job easier. Requiring serial numbers on guns is equivalent to requiring a huge window in each room of your house so the police can look inside without a warrant (everything must be in 'plain view').

We're only a few years away from requiring licenses to own homes which, in order to acquire, you have to waive your 4th Amendment rights and universally consent to a search. Exactly like implied consent laws with drivers licenses and DWI. Owning a home, like driving a car, is a privilege, not a right. Blah blah blah (bullshit - they're all rights). The government will have a legitimate interest in licensing home ownership. Of course it will be illegal to buy, sell, broker, mortgage, or live in a home unless you have a license. The 4th Amendment will be voided overnight. I wonder if Scalia would go along with the majority opinion upholding such a law. Give it a few years and we'll find out.

Sure, having a serial number on your gun is nowhere near as invasive as huge windows on your house. Not saying they're equally serious violations. But just because something make law enforcement's job easier doesn't mean we should tolerate it. The harder the police have to work, the more liberty and freedom we have. Ditto with the inverse of that proposition. Liberty is directly proportional to the amount of difficulty law enforcement faces in solving crime. I'm not pro-crime, I'm pro-liberty. But they go hand in hand.
7.8.2008 9:45pm
Lucius Cornelius:
Here is a link to the District Court's website where you can download the file:

http://www.vid.uscourts.gov

This is a topic that I know a little about. Is anyone else here a member of the VI bar? Anyone?

Local law has fairly strict limits on owning firearms. Each specific weapon needs its own permit. There are a number of administrative hurtles to jump before you can get a permit, but it is possible. Generally, the police will almost always issue a permit for owning a weapon to be kept at home. A permit for concealed carry is less likely to be allowed.

Assuming that the law has not changed since I was there, I doubt that it violated the 2nd Amendment right recognized in Heller.

By the way, any tax lawyers out there? The islands have been looking for an Assistant Attorney General (Tax) for a long time.
7.8.2008 9:50pm
Oren:
Regardless as to whether the Third Circuit agrees with this judge, it should vacate and remand this judge's decision (including overruling Rybar and Willaman). Make the judge do his job.
Why not just overrule but affirm under Heller's broad deference to reasonable regulation?

Heller is playing out to be much more steak than sizzle, and we've yet to see how far AMK wants to go here. . .
7.8.2008 10:21pm
Repeal 16-17 (mail):
Why not just overrule but affirm under Heller's broad deference to reasonable regulation?

Because the judge used the wrong standard (collective right). The decision should be vacated so the judge can rule under the correct standard (Heller).
7.8.2008 10:33pm
Dilan Esper (mail) (www):
Bruce:

There is some (though I don't think a lot) of merit to the argument that a serial number requirement empowers abusive law enforcement practices as well as legitimate ones. And I would certainly concede that if one goes far enough in this direction, one could run up against constitutional limits. I would note, however, that your Fourth Amendment example is directly prohibited by the text of the Fourth Amendment-- that would be more analogous to a requirement that in order to purchase a microphone or loudspeaker, the citizen must agree to have all of his or her speech preapproved by the government than it is to a serial number requirement.

The problem I have is that clearly MANY requirements that make law enforcement easier, whether or not they are advisable on a policy level, are constitutional. An obvious example of this is driver's licenses and automobile registration; photo identification requirements are another example.

So since there is not a general constitutional principle that the government may never require something that makes law enforcement's job easier, then there must be some specific principle that the right to keep and bear arms is incompatible with law enforcement being able to trace the serial number of your gun while investigating a crime. And I don't see how that would follow either.
7.8.2008 10:37pm
Visitor Again:
So I don't think the district court was entitled to punt the matter to the pre-Heller collective-rights precedent. It needed to do the Heller analysis (or, if appropriate, decline to deal with the Second Amendment question, if the litigant hadn't adequately argued it). And simply saying that under Heller the "right is not unfettered" isn't an adequate justification for the court's decision, either: Obviously some fetters are permissible but others aren't, so the question is why these particular gun controls are justified given the Heller reasoning.

This and the Johnson case on which you posted earlier today seem to indicate that the lower federal courts involved either don't know what analysis is appropriate under Heller or are unwilling to undertake the work it requires. Both are cases in which the proper result appears to be obvious, and so they could get away with woefully inadequate opinions. But it looks like they're weaving and dodging, waiting for some other court to take the lead, do the hard work and show how it's done.

It's very disappointing. One would have thought courts would be eager to begin constructing, case by case, the analytical framwork by which second amendment claims are to be adjudicated in the wake of Heller. Instead we get garbage. One case, Johnson, approaches the matter as if Heller decided everything. The other, Lewis, approaches it as if Heller were never decided at all.
7.8.2008 11:11pm
BruceM (mail) (www):
Dilan: they already require that poor people who live in government housing (a home for all 4th Amendment purposes) to consent to warrantless searches at any time. Just a matter of time before they extend that to houses. Nobody is forcing you to buy or live in a house... but if you want to, you have to have a house license and to get that, you have to consent to searches.

I'm not saying it's right or constitutional, only that the government will do it and a divided SCOTUS will uphold it. 4th Amendment will be dead - after all, that's what everyone wants... it only helps criminals, after all. Gotta get rid of the 4th Amendment. You know, for the children.
7.9.2008 1:33am
Johnny44 (mail):

The problem I have is that clearly MANY requirements that make law enforcement easier, whether or not they are advisable on a policy level, are constitutional.
An obvious example of this is driver's licenses and automobile registration; photo identification requirements are another example.

Might one distinction be that there is no constitutional right to drive or to own an automobile? The state may reasonably infringe nonconstitutional rights by imposing cumbersome conditions, since the rights themselves are only a matter of grace, but imposing a condition on the exercise of a constitutional right whether free speech or RKBA is perhaps different because there is a constitutional right to do it in the first place?
7.9.2008 5:21am
Lucius Cornelius:
Folks, this is the Virgin Islands. They will do the least amount of work possible. They don't care if it is done right, as long as it gets done...period.
7.9.2008 6:27am
Duffy Pratt (mail):
Shouldn't the next step be deciding whether the second amendment is incorporated? How do incorporation arguments apply the the Vifgin Islands?
7.9.2008 7:10am
PersonFromPorlock:
Johnny44:

The state may reasonably infringe nonconstitutional rights by imposing cumbersome conditions, since the rights themselves are only a matter of grace....

That line of reasoning is forestalled by the Nineth Amendment.
7.9.2008 8:15am
Ryan Waxx (mail):

That line of reasoning is forestalled by the Nineth Amendment.


I think you'll find that the 'right' to drive, for example, is indeed a matter of grace. The DMV repeats in just about every material it prints that driving is a privilege, not a right. And it treats it as such.
7.9.2008 9:19am
BruceM (mail) (www):
Ryan Waxx: just because they say something, and just because most people know the phrase "driving is a privilege, not a right" doesn't mean it's true. It's not a fundamental right, it's a right that can be restricted, and it's a right you have to get permission in order to assert, driving is so pervasive in our society and so necessary to daily life that it most certainly is some form of "right" which the people enjoy.

I'd posit that there's a huge difference between a driver's license and, say, a license to sell securities (which states all regulate, too). To simply say they are both on the same level as "privileges" is ignorant of reality.
7.9.2008 9:57am
BD:

Requiring serial numbers on guns is equivalent to requiring a huge window in each room of your house so the police can look inside without a warrant (everything must be in 'plain view').


Actually, it's not the same thing at all. Requiring people to live in glass houses (to take your hypothetical to an extreme) defeats one of the core purposes of having a home: privacy. To the extent the 4A (or the Constitution more generally) protects people's right to maintain the privacy of their homes, such a requirement would directly interfere with the exercise of that right.

By contrast, requiring a gun to be engraved with a serial number doesn't make the gun any less useful or in any way defeat the purpose of having a gun. Assuming there's some rational basis for the government to require the presence of a SN and that such a requirement doesn't impose a significant barrier to obtaining or using a gun (the way a 200-page license application would, hypotheticaly speaking), then I don't see why there would be any constitutional problem with requiring serial numbers.

A closer analogy would be a requirement that all houses display a conspicuous street address so that fire and police responders can find them in an emergency.
7.9.2008 10:19am
Melancton Smith:

Might one distinction be that there is no constitutional right to drive or to own an automobile? The state may reasonably infringe nonconstitutional rights by imposing cumbersome conditions, since the rights themselves are only a matter of grace, but imposing a condition on the exercise of a constitutional right whether free speech or RKBA is perhaps different because there is a constitutional right to do it in the first place?


This is exactly why Madison was originally opposed to having a Bill of Rights. The Bill of Rights is not a list of all that we are allowed! It is merely a list of the most necessary rights that we have that would appease those people at the time that were concerned with Federal Govt overreach.

I think were those people living today, they would keel over in a fit of apoplexy at the power our Federal and State governments have over us.


I think you'll find that the 'right' to drive, for example, is indeed a matter of grace. The DMV repeats in just about every material it prints that driving is a privilege, not a right. And it treats it as such.


The license to drive is in reality a license to drive on the public roads. You can drive on private property all you want with no license, given you have the permission of the owner.
7.9.2008 10:42am
Carl Donath (mail):
I don't see why there would be any constitutional problem with requiring serial numbers.


Would you say the same to a federal requirement that every book, magazine & newspaper have a recorded, traceable serial number? I'm sure that could solve crimes as well (ex.: crime features a recepie out of Anarchist's Handbook, so trace buyers and check alibis). Surely publishers &ACLU would file suit the very next day, and promptly win.
7.9.2008 11:09am
Johnny44 (mail):
PersonFromPorlock:

The state may reasonably infringe nonconstitutional rights by imposing cumbersome conditions, since the rights themselves are only a matter of grace....

That line of reasoning is forestalled by the Nineth Amendment.
Apart from favorable treatment in academic literature, I am not aware of any court case striking down legislation solely on Ninth Amendment ground.
Glucksberg established the framework for the recognition of new fundamental rights,under which the asserted right is either fundamental and subject to strict or heightened scrutiny, or only amounts to a nonfundamental liberty interest subject to rational basis (any conceivable crazy justification the court can think of as rationally related to a putative or speculative legislative purpose). Are there recent cases not involving bodily autonomy going outside the Glucksberg framework providing support for the Ninth Amendment argument for the right to drive or own an automobile?
Since most regulations of driving or automobiles would not take the form of an outright ban, an argument would have to be framed as an attack on the condition on the exercise of that right rather than on the complete deprivation of the right itself.

Would conditions such as licensing, GPS monitoring or burdensome taxation or felon bans imposed on the right to drive or own an automobile be subject to rational basis or strict scrutiny? A court would likely always find that since cars are dangerous and subject to governmental regulation, the interest in enforcement of subsidiary regulations could be too easily avoided without the new condition.
7.9.2008 11:59am
PubliusFL:
Carl Donath: Would you say the same to a federal requirement that every book, magazine &newspaper have a recorded, traceable serial number? I'm sure that could solve crimes as well (ex.: crime features a recepie out of Anarchist's Handbook, so trace buyers and check alibis).

Makes sense, if you accept the constitutionality of requiring firearms to have traceable serial numbers. The exact same argument applies: "Sure you have a right to own it, own away. But the government has an interest in being able to trace it if it's used to facilitate a crime."
7.9.2008 12:05pm
Happyshooter:
Curtis Gomez, the judge who authored this case, is a little free with his judical power. He is most famous for ordering that judges of the Virgin Islands are immune from investigation or removal.
It would not be a shock to me that he doesn't like Heller and decided that the USVI will not follow it.
7.9.2008 1:18pm
Dilan Esper (mail) (www):
Would you say the same to a federal requirement that every book, magazine &newspaper have a recorded, traceable serial number? I'm sure that could solve crimes as well (ex.: crime features a recepie out of Anarchist's Handbook, so trace buyers and check alibis). Surely publishers &ACLU would file suit the very next day, and promptly win.

No, but that gets to a fundamental difference between the First and Second Amendments that many libertarians will never accept.

The First Amendment protects the right to anonymous speech, and in fact, was clearly intended to do so, having occurred against the backdrop of the anonymous pamphleteering that occurred before the Revolution.

In contrast, the Second Amendment is about open, communitarian gun ownership by individuals. It protects an individual right, but not an anonymous right. Rather, gun owners are intended to comprise the unorganized militia and be subject to organization, discipline, and training by the government.

I should note, however, that even with respect to First Amendment anonymity, that doesn't preclude the government from, for instance, requiring circulation notices in magazines and newspapers as part of generally applicable taxation schemes. So even in that context, anonymity is not absolute and in some instances the government can indeed require a "serial number" in a magazine or newspaper.
7.9.2008 1:22pm
Dilan Esper (mail) (www):
Might one distinction be that there is no constitutional right to drive or to own an automobile? The state may reasonably infringe nonconstitutional rights by imposing cumbersome conditions, since the rights themselves are only a matter of grace, but imposing a condition on the exercise of a constitutional right whether free speech or RKBA is perhaps different because there is a constitutional right to do it in the first place?

That may work for driver's licenses, but it doesn't work for photo identification requirements, which compel speech (and can infringe on religious practices) and therefore pretty clearly implicate First Amendment concerns.

Look, what I was responding to was the argument that making law enforcement easier is never a sufficient interest to justify a law. And that is pretty clearly not true, in the Second Amendment context or any other. Now, one could argue that the serial number rule isn't supported by a sufficiently compelling interest or such a law isn't narrowly tailored to protect the interest, but I don't think those sorts of arguments are going to get you very far. Perhaps you disagree.
7.9.2008 1:25pm
Smokey:
Maybe 3/4 of the States will agree to this slight modification:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear serial numbered Arms, shall not be infringed.

And while they're at it:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of anonymous speech...

How can you get into trouble with anonymous speech??
7.9.2008 2:43pm
Dilan Esper (mail) (www):
Smokey, you are simply begging the question. There are plenty of arguments I could think of as to why the Second Amendment might prohibit a serial number requirement. (I don't think they are very good, but I can certainly think of them.) But you have to make them. It certainly isn't self-evident that a serial number requirement infringes on a right to bear arms, or whether a serial number requirement, even if it does infringe on such a right, infringes in a manner that the Second Amendment would prohibit. Maybe the answers to those questions really are both "yes", but you have to articulate why. Otherwise, no constitutional amendment is necessary.

I am going to sound like a broken record here, but the real point is that it hasn't sunk in with many libertarian types that the Second Amendment, even though it protects an individual right to bear arms and prohibits bans on gun ownership, does not enact the libertarian gun rights platform. It just doesn't. It protects individual rights to bear arms so that an armed citizenry would be available to come to the defense of freedom. Regulations that are consistent with this principle are not only permissible, but were contemplated by the framers and understood to be consistent with the Second Amendment. Other regulations may not be consistent with these purposes and those are unconstitutional.

Libertarians have absolutist conceptions and suspicions of anything that assists law enforcement which don't have very much to do with what the Second Amendment protects.
7.9.2008 8:12pm