A rare (and tentative) partial dissent from the nearly unanimous judicial view that the Second Amendment does not at all protect gun possession by felons, in U.S. v. Abner, 2009 WL 103172 (M.D. Ala. Jan. 14) (Myron H. Thompson, J.):
Upon consideration of the report and recommendation of the United States Magistrate Judge (doc. no. 31) and the objections filed by defendant Theophilus Quinton Abner (doc. no. 32), and after an independent and de novo review of the record, it is ORDERED as follows:
(1) Defendant Theophilus Quinton Abner's objections (doc. no. 32) are overruled.
(2) The recommendation of the United States Magistrate Judge (doc. no. 31) is adopted as to its result.
* * *
The court adds the following comments:
Abner argues that 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by those convicted of felonies, is unconstitutional as applied to him. Abner relies on the Supreme Court's decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), arguing that such significant and permanent restrictions on his right to possess a firearm in his home, particularly given the importance of defending himself, his property, and his family, cannot survive the scrutiny that opinion mandates for statutes regulating the possession of firearms in the home. Abner, however, has a serious history of violent crime of the highest magnitude, including state convictions for kidnaping and attempted murder. Even though § 922(g)(1) has a strikingly large scope -- a scope that might be arguably called into question by a fair reading of Heller's rationale -- the court does not find, under the particular circumstances presented in this case, a constitutional violation as applied....
[The magistrate judge had concluded, in relevant part: -EV] ... Heller expressly permits the possession of firearms in the home by persons not “disqualified” from the exercise of Second Amendment rights. Indeed, the United States Supreme Court expressly circumscribes its Heller decision to avoid casting doubt on the provisions of § 922(g). Abner asks this Court to regard those statements as mere dicta since those specific provisions were not before the Heller court. While the Court agrees a § 922(g) challenge was not the subject of the Heller decision, the Court rejects Abner's arguments that the statements are essentially irrelevant. On its face, “Heller did not disturb or implicate the constitutionality of § 922(g) and was not intended to open the door to a raft of Second Amendment challenges to § 922(g) convictions.” Indeed, every case found by this Court involving a post-Heller challenge to § 922(g) likewise concludes Heller did not invalidate § 922(g). As there is no guidance post-Heller from the Eleventh Circuit, this Court will join the other courts in its rejection of a § 922(g) challenge under Heller. Instead, the Court will take Heller at its word that it did not cast doubt on the validity of prohibitions like those found in § 922(g).
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