pageok
pageok
pageok
Felons and the Second Amendment:

U.S. v. Harden, No. 06-79-KI (D. Or.) (King, J.):

Defendant Daniel Devon Harden is charged in a single-count indictment under 18 U.S.C. § 922(g)(1) with possessing a firearm after being previously convicted of a felony. Harden moves to dismiss his indictment based on District of Columbia v. Heller, in which the Court held that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Harden argues he has a Second Amendment right to possess a firearm for self-defense, even though he is a felon.

The Court also cautioned, however:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not 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.

Harden's argument goes well beyond the holding in Heller. I decline to extend the case to that extent.

If Harden's argument simply went beyond the holding in Heller, it seems to me that a judge probably ought to give reasons for "declin[ing] to extend the case" -- but here, the argument goes firmly against the dictum in Heller, and thus seems to be basically disposed of by the Supreme Court's opinion.

Cornellian (mail):
I wonder how far a legislature can push the envelope in banning firearms ownership by someone with a prior record of convictions. Can it ban ownership by someone with a 10 year old conviction for a minor assault from a fist fight in a bar when he was 18 years old?
7.21.2008 8:11pm
CuriousGeorge (mail):
And I've always wondered WHY the second amendement has been treated so poorly compared to some of the other first ten. While the 3rd has been gutted, and the fourth is weak these days, only the second really seems to be interpreted based upon if the person has committed a crime. Restricting right while someone is in custody isn't an issue - all right are restricted while in custody.
But it seems that only the second amendment is applied based on your previous conduct - the 1st is recognized as being valid no matter what you may have done prior - same with the 5th, 5th, 7th, and 8th - in fact, many of the rights only are really applicable to those who have been accused or convicted - yet the 2nd is deemed to simply "not apply" to people who have committed a felony.

Is there any logic to this, or is this simply a case of the courts ruling to suit a political agenda?
7.21.2008 8:13pm
CuriousGeorge (mail):
I wonder how far a legislature can push the envelope in banning firearms ownership by someone with a prior record of convictions. Can it ban ownership by someone with a 10 year old conviction for a minor assault from a fist fight in a bar when he was 18 years old?


Well, if you are a federal felon, your only recourse is a presidential pardon - at least since the office of the BATF that dealt with re-instating firearm "privileges" was de-funded years ago.
7.21.2008 8:15pm
krs:
While the 3rd has been gutted

Really? I think the political branches have given that amendment so much respect that they have not tried very often to push its limits or otherwise to do things that lead to the intervention of the courts.

Perhaps this is because of the efforts of the ever-vigilant National Anti- Quartering Association

(see also here for those on Facebook). Those noble souls would probably be shocked at your assertion that the amendment has been gutted.
7.21.2008 8:34pm
Dilan Esper (mail) (www):
Curious:

To be fair, the right to vote is often held to be fundamental, and felon disenfranchisement has been pretty universally upheld as constitutional.

I could expand on this point, but I don't think it is that helpful to be constantly "comparing" the Second Amendment's protections to other rights. (This occurs in the demands for strict scrutiny as well.) Different constitutional rights arise from different traditions, with different competing interests and different histories. It's pretty weird to adopt a one-size-fits-all approach to the level of protection they grant.

In saying this, I am not saying you can't make an argument for why felons should have Second Amendment rights. Of course you can. I just don't think that simply referencing the fact that felons have other rights is that strong an argument.
7.21.2008 8:35pm
Germanicus:
CuriousGeorge:

In what sense has the Third Amendment been gutted? I admit I know almost nothing about Third Amendment jurisprudence.
7.21.2008 8:36pm
hattio1:
Professor Volokh,
I'm not sure how or why the fact that this issue was "disposed of" by dicta should effect the trial court. It seems that you are basically arguing that if it weren't for the dicta, the judge would have to analyze Harden's argument and explain why it was wrong (I dont' see why the judge couldn't properly just cite the statute and tell Harden to take it up on appeal). Assuming that to be the case sans Supreme Court dicta, how does the dicta change it? I remember in law school professors making a big deal about the difference between a holding and dicta and only the holding creates law. Dicta (like persuasive precedents from other jurisdictions) is only as useful as it is persuasive. Given this, it seems that if you are correct that the judge should have carefully analyzed Harden's argument without the existence of dicta, he should do the same with dicta.
7.21.2008 8:43pm
hattio1:
BTW,
I should say that in practice, I find the dicta/holding distinction to only matter to judges when they really, really, really don't want to follow established case law. If it's dicta that supports the way they want to rule, it automatically becomes integral to the holding.
7.21.2008 8:46pm
Helen:
Cornellian asked:

I wonder how far a legislature can push the envelope in banning firearms ownership by someone with a prior record of convictions. Can it ban ownership by someone with a 10 year old conviction for a minor assault from a fist fight in a bar when he was 18 years old?

The State of New Jersey denies a Firearms Identification card (FID) to anyone with a juvenile conviction. In addition, since New Jersey law does not distinguish between felonies and misdemeanors, the denial includes anyone with a juvenile conviction for something that would be a misdemeanor in any other jurisdiction. Without an FID, you cannot purchase any firearm, including a long gun, in New Jersey. So, at least one state bans ownership by someone with a "10-year old conviction for a minor assault from a fist fight in a bar when he was 18 years old." In fact, it bars ownership even if it's a 50-year old conviction for something nonviolent at the age of fourteen.

We'll probably see this contested if Heller is incorporated.
7.21.2008 9:01pm
CuriousGeorge (mail):
I misspoke - I said the third had been gutted, when I meant to say is hasn't much been tested these days. The "gutted" was supposed to go with the 4th amendment *grin*.


Dilan Esper
...the right to vote is often held to be fundamental, and felon disenfranchisement has been pretty universally upheld as constitutional.

Um, where is this so-called "right to vote"? there are amendments that say that you may not deny the right to vote for a given reason - the 15th, with race, color, or previous condition of servitude; the 19th, with sex; the 24th, non payment of taxes; and the 26th, age (once over 18).
But no where does it say that every citizen shall have the right to vote! in fact, it specifically leaves open MANY possible discriminatory categories. I could go on about the checks and balances put in place regarding this, but suffice it to say that it is in the State's best interest to have as many eligible voters as possible.
7.21.2008 9:07pm
BillW:

In what sense has the Third Amendment been gutted? I admit I know almost nothing about Third Amendment jurisprudence.


It doesn't chafe to have troops camping in your backyard? Their tank parked in the driveway isn't in the way? They don't wake you when they clamber up the side of the house to the observation post on the roof? This is tyranny, and I want it stopped!
7.21.2008 10:07pm
Fub:
Germanicus wrote at 7.21.2008 7:36pm:
In what sense has the Third Amendment been gutted? I admit I know almost nothing about Third Amendment jurisprudence.
Neither does anybody else.
7.21.2008 10:24pm
Dilan Esper (mail) (www):
Curious:

FYI, the Supreme Court has found a right to vote and has held that it is fundamental. Certainly, Article I provides for an express right to vote with respect to congressional elections, and the guarantee clause provides that states provide a republican form of government, which guarantees a right to vote in state elections.

And yet, felons don't have it.

You ignored my main point, though, which is that it's not good reasoning to simply say that, e.g., because felons are not exempt from the First Amendment, they aren't exempt from the Second Amendment either.
7.21.2008 11:26pm
AKD:

The State of New Jersey denies a Firearms Identification card (FID) to anyone with a juvenile conviction. In addition, since New Jersey law does not distinguish between felonies and misdemeanors, the denial includes anyone with a juvenile conviction for something that would be a misdemeanor in any other jurisdiction. Without an FID, you cannot purchase any firearm, including a long gun, in New Jersey. So, at least one state bans ownership by someone with a "10-year old conviction for a minor assault from a fist fight in a bar when he was 18 years old." In fact, it bars ownership even if it's a 50-year old conviction for something nonviolent at the age of fourteen.


I would be interested to know if NJ also denies voter registration in those circumstances?
7.22.2008 12:11am
Dave N (mail):
I am also interested to see the impact of the Lautenberg Amendment (barring people convicted of misdemeanor domestic violence from owning handguns) and whether it survives Heller.

By the way, I am waiting for heavy litigation on the scope of the Seventh Amendment.
7.22.2008 1:18am
Helen:
AKD:

New Jersey does not deny voter registration to those with juvenile convictions. I know of no sanctions other than denying the Firearms Identification card.

Since juvenile convictions are, by definition, not criminal records, an applicant for an FID has to sign authorization to search the county-level records for any juvenile conviction. It is up to the discretion of the local police department to decide how many counties to search; there are 21, and he can decide that they all must be searched. So, this is really just another way to delay issuing the FID.

Add to this the fact that there is no way to change your address on an FID; you must start the process all over again if you move. Some police departments are willing to change the address if you move within a municipality, but all will start from scratch if you move to a new municipality. Typical wait time for an FID is 6 to 12 months.

And, even with a valid FID, you cannot purchase a handgun. Along with the FID, you need a separate pistol purchase permit, which starts up the same approval process, requires two written references, and take more months for approval. Some police departments even require that you be re-fingerprinted for each pistol purchase permit application. After that wait, you can purchase ONE pistol. If you want another, you start over again.
7.22.2008 1:23am
zippypinhead:
Professor Berman has been blogging about the possible effect of Heller on felon-in-possession laws over at Sentencing Law and Policy since before the decision was handed down.

It's inevitable that there will be challenges to f-i-p laws after Heller. But there are practical problems with successful Second Amendment defenses in f-i-p prosecutions, in addition to the glaring problem that Justice Scalia carefully cabined off f-i-p laws from being affected by the holding in Heller (regardless whether this is technically "dicta," it's clearly an explicit directive of the Supreme Court, and won't lightly be disregarded by lower courts).

Most importantly, the overwhelming majority of such defendants are, to put it bluntly, terribly unsympathetic. In almost 25 years of practice I've heard of only a small handful of cases where someone faced f-i-p charges who hadn't also committed other significant crimes that either were or could have been charged. When the defendant scares the judge (not to mention the jury), he's not going to get a terribly sympathetic hearing on the argument he has a right to possess deadly weapons. And the more unsuccessful f-i-p prosecution challenges there are, the more the caselaw is going to develop in ways that will broadly block Second Amendment rights restorations for ex-felons under even more sympathetic circumstances.

I can think of two scenarios where a Second Amendment challenge to f-i-p prohibitions might have a reasonable chance of succeeding. Both would be best brought as civil actions by an incredibly sympathetic would-be gun owner who clearly poses no threat to society. My dream plaintiff would be somebody convicted 45 years ago of then-felony marijuana possession (or with an old Lautenberg Amendment-eligible misdemeanor domestic violence conviction), who went on to have a distinguished career as, say, a Vietnam-era Marine, remained a law-abiding citizen for decades, and now as a retiree has become a community organizer in a bad neighborhood and seeks to legally acquire a handgun for self-defense. Alternately, the plaintiff could be a white collar criminal whose crime doesn't quite fit the f-i-p exceptions in 18 U.S.C. §921(a)(20)(A), but who clearly has the same general non-violent, non-recidivist profile of an exempt antitrust offender. Perhaps somebody convicted of insider trading? And for good measure, who wants a firearm for personal protection because of recent stalking problems by a crazed fan? For short I'll call this the "Martha Stewart" exception...

The successful suits:

1. A post-incorporation civil challenge to denial of a state permit, or some other state action that clearly gives rise to standing without a hint of criminal charges. Maybe by my ex-Marine retired community organizer, wanting a handgun for protection while working in some needy inner-city community like Camden New Jersey, where a permit is required by state law, but where facilitating his request would provide a pretty obvious societal benefit.

2. A federal civil challenge to a BATF rejection of an application for restoration of rights by a plaintiff who would otherwise qualify for action, but whose application is rejected because Congress has prohibited BATF from spending appropriated funds on rights restorations. Maybe by my "Martha Stewart" plaintiff? This one could be tricky depending on where the courts land on the proper standard of review for Second Amendment restrictions, but even under an intermediate scrutiny standard, the refusal to process rights restoration applications under an existing statutory scheme might be successfully challenged?

Either of these would be less of a long shot than raising the issue as a defense in a Federal or state f-i-p prosecution, IMHO.
7.22.2008 10:12am
Houston Lawyer:
If you asked a felon what is more important to him, the right to vote or the right to own a gun, I'm sure he would choose the latter. I think we should start revoking the right to vote for misdemeanor convictions. I also think that we should establish a database of people who are not allowed to vote because of prior convictions. We could install one at every polling place and they could run your driver's license and social security number through to see what comes up.
7.22.2008 10:57am
Srsly:
Surely denying 2cd amenmdnemt rights to a person simply because he is a "FELON" with no more is too broad. Shouldn't there be some rational link between the type of felony and the reason we don't want them with a gun ? Like, if you committed armed robbery - that makes sense. But felony tax evasion? Felony mail tampering?
7.22.2008 11:44am
cjwynes (mail):
Prof. Volokh has suggested that 2nd amendment cases could be analyzed in a manner similar to the time/place/manner restrictions in 1st amendment law. That sounds sensible to me, BUT it doesn't seem to support a prohibition on felons carrying guns.

Felons don't lose their right to speak in public fora. Perhaps the FCC can deny them broadcast licenses, which I've heard anecdotally, but I doubt that's constitutional either if it happens. Status as a felon just can't be shoehorned into time/place/manner. That's why I'm afraid something like Breyer's wishy-washy interest-balancing test will win out in the end, because the gun laws everybody accepts as just good sense may be hard to justify under a more well-defined mode of analysis.
7.22.2008 11:51am
Fub:
Houston Lawyer wrote at 7.22.2008 9:57am:
If you asked a felon what is more important to him, the right to vote or the right to own a gun, I'm sure he would choose the latter.
I know a convicted felon who prefers the right to vote. But then, I also knew someone who voted for Nixon.
I think we should start revoking the right to vote for misdemeanor convictions. I also think that we should establish a database of people who are not allowed to vote because of prior convictions. We could install one at every polling place and they could run your driver's license and social security number through to see what comes up.
Serious question: why perform the check at the polling place? Wouldn't that introduce yet another point of potential failure for polling place operation on election day?

Why not perform the check before entering the citizen's name on the voter rolls after receipt of a voter registration application? That way there is at least more time to resolve errors in the record checking process.
7.22.2008 11:54am
Srsly:
Dilan: The right to vote has been declared "fundamental" for equal protection/Due Process purposes. But it is not a right recognized in the Constitution. No Court would uphold an RELEASED felon having his 1st, 4th, 5th Amendment rights violated. Why is 2cd any different?
7.22.2008 11:57am
SC Public Defender:
I was involved in a case where a felon was carrying a pistol for personel protection from someone who had allready shot him once and had also shot up his house another time. The local police had made a possession of a firearm arrest, but knew about the situation and dropped the charges. The feds put him in jail for quite a long time as part of their "targeting gun violence" PR push a couple of years ago. (and because they obviously don't have enough to do.)
7.22.2008 12:06pm
Vsound (mail):

2. A federal civil challenge to a BATF rejection of an application for restoration of rights by a plaintiff who would otherwise qualify for action, but whose application is rejected because Congress has prohibited BATF from spending appropriated funds on rights restorations. Maybe by my "Martha Stewart" plaintiff? This one could be tricky depending on where the courts land on the proper standard of review for Second Amendment restrictions, but even under an intermediate scrutiny standard, the refusal to process rights restoration applications under an existing statutory scheme might be successfully challenged?


Zippy, this one has been done before to no avail. US v. Bean 01-704. ATF got defunded for reviewing applications for restoration of rights. Without an actual denial of the application, a court review was not allowed.
7.22.2008 12:22pm
Dilan Esper (mail) (www):
The right to vote has been declared "fundamental" for equal protection/Due Process purposes. But it is not a right recognized in the Constitution.

Srsly, read Article I again. More carefully this time. The part about Congressional elections.

Then skip ahead and read the clause that says that states shall guarantee a republican form of government.

This conservative BS that there is no right to vote in the Constitution is just that.
7.22.2008 3:33pm
DanInAustin (mail):
In general, I'm not sympathetic to felons losing their second ammendment rights, but it would seem to me that if they can't be trusted with legal ownership/possession of firearms then they should probably have not been released from prison. If the safety of society rests on them not getting guns, it's a meaningless effort since they can easily get illegal guns.
7.24.2008 11:13am