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.