One of The First Post-Heller Second Amendment Opinions:
Mullenix v. BATF (E.D.N.C. July 2, 2008):
Plaintiff is a federally-licensed firearms dealer, and alleges that the ATF arbitrarily denied him permission to import a reproduction of a World War II-era German machinegun[, the BD44]....
Title 18, section 925(d) of the United States Code provides that certain types of firearms may be imported into the United States. Among these are firearms “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” ... [T]he ATF determined that the BD44 was not importable under section 925(d)(3) because it was not “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” Plaintiff challenges the ATF's decision. Plaintiff argues that the ATF's interpretation of section 925(d)(3) is arbitrary and capricious, and seeks damages for lost income resulting from his inability to sell BD44s to prospective military re-enactors....
Plaintiff first argues that “[a]ll bans [on gun ownership] are clear unconstitutional infringements to the right to own and bear arms.... [In Heller,] the Supreme Court rejected the notion that the Second Amendment right is unlimited:
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 [to keep and bear arms] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
In light of Heller, plaintiff's facial challenge to section 925(d) fails.
Alternatively, plaintiff contends that, although Congress has the power to regulate the individual right to keep and bear arms, “regulation” of that right is limited to reasonable time, place, and manner restrictions. According to plaintiff, Congress may not “regulate” his individual right to keep and bear arms by declaring that he may not own certain types of arms, and he may accordingly own almost any type of weapon he chooses (including the BD44) so long as he complies with reasonable time, place, and manner restrictions. See [plaintiff's brief] at 7-8 (“[N]ever does Congress have the right ... to ban the ownership of any defensive arm equivalent or superior to that used by the standing armies of the United States.”).
Unfortunately for plaintiff, the Supreme Court rejected this argument in Heller. See Heller at *26 (construing United States v. Miller, 307 U.S. 174 (1939), to hold that “the type of weapon at issue [a sawed-off shotgun] was not eligible for Second Amendment protection”); id. (“Miller stands ... for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”); id. at *27 (finding it a “startling reading” of Miller to suggest “that the National Firearms Act's restrictions on machineguns ... might be unconstitutional”); id. at *28 (“[T]he right [is] not a right to keep and carry any weapon whatsoever....”). Accordingly, in light of Heller, the court rejects plaintiff's challenge to section 925(d), and rejects plaintiff's claim that the Second Amendment entitles him to possess the BD44 in this case.
Not a surprising result, or likely an important one, but it is one of the first, so I thought I'd note it.
UPDATE: When I posted this, I labeled this the "first" post-Heller Second Amendment opinion -- forgetting that Lexis sometimes has unpublished cases that Westlaw doesn't, and neglecting (for no good reason) the fact that some unpublished cases never make their way to Lexis or Westlaw and a few others take some time to get posted. I've revised the title accordingly, and will blog shortly on at least one earlier post-Heller Second Amendment case. Thanks to commenter ClosetLibertarian for reminding me about this.
Another Early Post-Heller Second Amendment Case:
It's U.S. v. Dorosan (E.D. La.), in which defendant -- a postal worker -- was found guilty last week of possessing firearm on postal property. The postal worker had a gun in the glove compartment of his car, which was parked in the Post Office lot; but this was found because a postal inspector, Norbert Lewis, "discovered a black canvas bag on the workroom floor next to a letter case for Route 5301. Said route was worked by the defendant ... on the previous day. Lewis did not know to whom the bag belonged so he opened the bag and found a magazine with twelve (12) rounds or .40 caliber hand gun ammunition and three (3) empty shell casings in the bag."
The magistrate judge's opinion rejecting Dorosan's Second Amendment challenge was filed last Monday; the discussion is fairly long, but I thought I'd offer a few excerpts:
Both Heller and Emerson [the 2001 Fifth Circuit case that anticipated the Heller individual rights ruling] ... make it clear that the “right to bear arms” –- albeit an individual fundamental right of all Americans secured by the Second Amendment –- is not unlimited....
The Property Clause of the United States Constitution grants Congress the right to regulate federal property. It provides: “The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the territory or other Property belonging to the United States....” The Fifth Circuit has routinely upheld federal regulations that are designed to promote workplace and public safety on government property....
Clearly, 39 C.F.R. § 232.1(1)[,] which bans possession of weapons solely on postal property is not unconstitutional as applied. Neither Heller nor Emerson involved gun control regulations banning possession of “arms” on federal property. Indeed, the Supreme Court in Heller described the District’s statute as a law that “totally bans handgun possession” extends to the home and “requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.
The regulation at issue in this case is far more limited in application in that it (1) applies only on the confines of properly noticed postal property, (2) is sanctioned by both the Property and Postal Clauses of the U.S. Constitution and (3) falls within the Heller Court’s category and non-exhaustive list of excepted longstanding prohibitions on carrying firearms –- i.e., “sensitive places such as schools and government buildings.”
Indeed, federal law (OSHA) requires employers to abate workplace hazards and encourages employers to take measures to prevent gun-related injuries. Surely, the United States Postal Service would be remiss if it failed to practice what federal law requires. Without
question, § 232.1(1) bolsters the United States Postal Service’s zero tolerance for workplace violence and is a regulation designed to maintain safety and order on postal property. 18 U.S.C. § 930 (a), which prohibits possession of dangerous weapons, serves the same purpose within federal facilities. Congress has the authority to regulate safety of the post office and its property, notwithstanding the individual right to bear arms in the home, “where the need for defense of self, family and property is most acute.”
The ban at issue does not affect the right of all individuals to bear arms at home or
traveling in a vehicle to and from work through high crime areas. Its reach does not extend beyond the noticed, gated confines of United States Postal Services’ property. It is narrowly tailored to effect public and workplace safety solely on postal property consistent with the Property and Postal Clauses. Similarly, 18 U.S.C. § 930(a) criminalizes knowing possession of dangerous weapons, but only within the confines of a federal facility/building. Regulations forbidding the possession or carrying of firearms “in sensitive places” such as federal and/or postal property abound; these longstanding prohibitions have been upheld.
I think the invocation of an enumerated Congressional power as a counterweight to an individual right -- what I call the Constitutional Tension Method -- is a mistake. All things that Congress does must theoretically be pursuant to some enumerated power. The D.C. gun ban was enacted, indirectly, through the enumerated power to legislate for the District of Columbia (though Congress exercised that power by letting the D.C. City Council enact ordinances, subject to the possibility of Congressional repeal). The point of the Bill of Rights, whether we're talking about the First Amendment or the Second or the Fourth or any other, was to constrain Congress in the exercise of its powers. (I wrote about this in the First Amendment context in this article.)
I also think the argument based on federal health and safety law is at the very least too cursory, and likely unsound. The USPS "would be remiss if it failed to practice what federal law requires," but federal law doesn't require gun bans by employers, and even if it did there would still be the question of whether such a requirement is constitutional under the Second Amendment. The court just seems to be assuming that the federal law is constitutional, without explaining why this is so.
Nonetheless, the other arguments may well be correct, especially given the language in Heller; I can't speak with complete confidence about the subject. I just wanted to flag my disagreement with the reliance on the enumerated power and on OSHA.
Note: While I was at first skeptical about the claim that "The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas," I take it that the court is assuming (quite likely correctly) that Dorosan could have parked the car on a public street outside the post office.
One More Early Post-Heller Second Amendment Opinion:
The brief decision from Senior Judge Milton Shadur is in the newly filed lawsuit challenging Chicago's handgun ban, McDonald v. City of Chicago (N.D. Ill.); it's minor, but I thought I'd note it nonetheless, because it might foreshadow what we might see in the future in this important case:
This newly-filed action has been assigned to this Court’s calendar. From a reading of the Complaint it appears that plaintiffs’ counsel may view this litigation--which is entitled to serious consideration on its own merit--as a vehicle for some other purposes as well. This memorandum order is issued sua sponte to strip the Complaint of some surplusage--listed in the order of appearance, rather than in any effort to rank the stricken allegations in terms of importance--that does not conform to the directive of Fed. R. Civ. P. 8(a) as to the content of a federal complaint.
1. Because yesterday’s Supreme Court decision in District of Columbia v. Heller, No. 07-290, 554 U.S. __, 2008 WL 2520816 (U.S. June 26) requires no independent justification for the ownership and possession of firearms under the Second Amendment (see Complaint ¶34), all but the first sentence of each of Complaint PP1 through 4 are stricken.
[Footnote, slightly moved: Nothing in the Supreme Court's opinion addresses the registration and licensing requirements targeted by the Complaint (see Heller, 2008 U.S. LEXIS 5268, [WL] at *28 n.26 and *30), and no view is of course expressed here as to such substantive issues.]
2. Complaint ¶8 appears to reflect an inaccurate characterization of the form of government that is prescribed for the City of Chicago. Absent some showing to the contrary by plaintiffs’ counsel, that paragraph will be stricken, Richard Daley will be dismissed as a defendant and all of the Complaint’s references to “Defendants” will be converted to singular form.
3. Because 28 U.S.C. §§2201 and 2202 are not independent sources of federal subject matter jurisdiction, reference to those sections is stricken from Complaint ¶9.
4. Complaint ¶¶40 through 45 are stricken as patently inappropriate.
5. All of the Complaint’s references to “Cause of Action” are also stricken. In that respect, see NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992)).
Here are the relevant portions of the complaint:
1. Plaintiff Otis McDonald is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. McDonald resides in a high-crime neighborhood and is active in community affairs. As a consequence of trying to make his neighborhood a better place to live, Mr. McDonald has been threatened by drug dealers.
2. Plaintiff Adam Orlov is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Orlov is a former Evanston, Illinois, police officer. As a police officer, Mr. Orlov was entrusted with a handgun for the purpose of defending himself and others from violent crime.
3. Plaintiff Colleen Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Ms. Lawson’s home has been targeted by burglars.
4. Plaintiff David Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Lawson’s home has been targeted by burglars....
40. Many Chicago gun owners fail to re-register their firearms every year. Among these recently was Alderman Richard Mell, whose firearms became unregisterable when he failed to timely renew his registration certificates.
41. Accordingly, Alderman Mell proposed an ordinance amending the law to permit, for one month, lapsed guns to be re-registered if their owners had attempted to re-register their
guns between May 1, 2007 and April 1, 2008, a period that would have covered his lapsed
42. Defendant Mayor Daley endorsed Mell’s proposal, stating: “A lot of people go back and forth to their summer homes ... A lot of people move their shotguns. A lot of ’em are bird hunters, gun collectors.... They move ’em back from Wisconsin, Michigan, [other] parts of
43. Defendant Mayor Daley added: “It’s one time [for] one month ... You want to have ’em register. There’s nothing wrong with that ... People want to just register. A lot of ’em bring ’em back from hunting trips. So, why not?”
44. Speaking of Alderman Mell’s desire to re-register his lapsed guns, Defendant Mayor Daley stated: “He has a home in Wisconsin. He brings ’em back and forth. He’s not running out with a shotgun and hurting people.
45. The proposed re-registration amnesty bill was passed by the Chicago City Council, with the amnesty period extended to 120 days. The fee for re-registering a lapsed firearm under the amnesty bill is $60.00.”
My questions: (1) The main issue in this case is to what extent the Second Amendment applies to the states via the Fourteenth Amendment. It's at least conceivable that the Amendment might apply to the states differently than it does to the federal government; this is an unlikely result, but one the Court reached in the early 1970s as to the Jury Trial Clause, which has been read as requiring unanimous juries in federal prosecutions but not state prosecutions. If this is so, then is it clear that the remaining sentences of paragraphs 1 through 4 are surplusage? Or is the judge simply assuming that the Second Amendment is either fully incorporated or not at all incorporated, so that Heller view -- which is that the right to keep and bear arms doesn't require any special justification on the claimant's part -- is dispositive?
(2) Why doesn't the material related to the reregistration ordinance potentially undermine the strength of the government's likely argument that the ordinance's constraints on law-abiding citizens are really needed to fight crime (quite independently of the digs at the supposed self-dealing by Chicago officials)? True, it might prove to be irrelevant, but that's not clear now. Or is it just that the proper place for introducing such matters is at trial and in pretrial motions, rather than in the complaint?
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.
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.
More on Guns in Post Office Parking Lots:
Monday, the magistrate judge in U.S. v. Dorosan, which I blogged about here, issued a further opinion, including this on the Second Amendment question (which is whether the federal government could criminalize the bringing of guns onto post office property, including leaving them in a car parked in the parking lot):
The Court has considered defense counsel's argument that Dorosan's vehicle is an extension of his home; however, that result obtains only when the vehicle is not parked on postal property where access is restricted. In this case, the restricted employee parking and loading area where Dorosan parked his vehicle during his shift bears signs that advise all who enter the gates, as follows:
Vehicles and their contents brought into, while on, or being removed from restricted nonpublic areas are subject to inspection. A prominently displayed sign shall advise in advance that vehicles and their contents are subject to inspection when entering the restricted nonpublic area, while in the confines of the area, or when leaving the area. Persons entering these areas who object and refuse to consent to the inspection of the vehicle, its contents, or both, may be denied entry; after entering the area without objection, consent shall be implied. A full search of a person and any vehicle driven or occupied by the person may accompany an arrest.
An area, such as the Gretna Post Office's employee parking lot, which bears warnings the likes of that aforestated can hardly be analogized to "home sweet home" or an extension of same. By the same token, privately owned vehicles parked on such "postal property" cannot be reasonably be considered an extension of home. The "postal property" at issue more closely approximates one of those "sensitive places" excepted by the Supreme Court in Heller, the Court's latest opinion addressing the Second Amendment "right to bear arms." Certainly a loaded semi-automatic weapon, even if secured in the locked glove compartment of a privately owned vehicle, creates an opportunity for violence on such "postal property" -- i.e., a "sensitive" area where access is restricted for reasons of facilitating the movement of inbound and outbound mail entrusted to the USPS.
[Footnote, moved: In Heller, the Supreme Court cautioned that "nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places ...." District of Columbia v. Heller (holding that the Second Amendment of the Constitution of the United States secures the fundamental right of all Americans to bear arms).]
Eradicating the potential for deadly workplace violence and ensuring the safety of both Government employees and the public on "postal property" is exactly the security measure that the regulation at issue was designed to effect. The regulation is an adjunct of the Postal Service's policies and more particularly the "zero tolerance" of workplace violence. Indeed, many of those who use postal facilities, including postal workers, do so from necessity, not choice; many members of the public must go to a post office to conduct their business and personal correspondence, carrying cash for stamps or money orders. Postal employees must enter and exit the postal property at issue carrying the U.S. mail.
As previously addressed in this Court's prior opinion, the postal regulation at issue (39 C.F.R. § 232.1(l)) passes Second Amendment constitutional muster and is reasonable as applied to Dorosan. The Government has a significant interest in protecting the integrity of the purposes to which it has dedicated the property (facilitating postal transactions) and ensuring the security of postal employees and the public who must: (1) visit postal property to conduct official and personal business; (2) wait single file in roped off lines inside of postal facilities; (3) idle in vehicles single file in "snorkel lanes" 21 on postal property to use "drive and drop" mail receptacles placed outside of the Post Office building; and (4) carry cash or other legal tender for stamps, money orders, passports and other goods and services provided by the United States Postal Service.
Noting the fact that there were no signs prominently displayed outside of the Gretna Post Office building publishing the regulation's prohibition against carrying firearms (§ 232.1(l)) or animals (§ 232.1(j)) on "postal property," the defendant argued that the statute was vague, overly broad and unconstitutional as applied to the defendant. More particularly, defense counsel suggested that the regulation effectively outlaws conduct including matriculating the drop box lane in a vehicle with either a firearm or an animal safely stowed within its confines. The undersigned Magistrate Judge expresses no opinion whatsoever as to the constitutionality of regulation's ban on carrying firearms or animals in public areas without official purpose -- i.e., operating a vehicle through the "snorkel lane" of the Gretna Post Office while accompanied by a pet Shih Tzu, other non-seeing eye dog or, perhaps, armed with a loaded handgun stowed in the glove compartment. Neither of those issues are before the Court in this case, which involves the prohibited conduct of carrying and storing firearms without official purpose in the gated/restricted access employee parking, loading and unloading area of the subject "postal property."
It's As If Heller Never Happened:
[UPDATE: The decision below was filed July 7, and PACER, which I checked before posting the post, echoes this. Nonetheless, as two commenters pointed out, the decision is dated June 25, one day before Heller was handed down. If anyone could explain why there'd be a two-week delay between the signing of the written decision and the filing — something I generally haven't found to be the case in district court — I'd love to hear it.
It may be that my condemnation of the court was mistaken or at least overstated, given the June 25 date; on the other hand, Heller was big news the very next morning -- and anticipated to be coming down then -- so if the district court decision wasn't officially filed until July 7, I wonder why there wouldn't be an opportunity to correct it. In any case, I'd love to hear what people who are knowledgeable on such matters, especially in the Northern District of California, could tell me.]
From Bates v. San Jose, 2008 WL 2694025 (N.D. Cal. July 7):
Bates was formerly a sergeant with the San Jose Police Department. He was granted a disability retirement from the department in April 2004, due to the fact that the City could not accommodate the work restrictions placed upon him by his physician, at least in part to “avoid psychologically or physically stressful work.” Upon receipt of this information, defendant Amoroso, then deputy chief, denied Bates a concealed weapon permit under Cal.Penal Code § 12027.1(e) which prohibits the issuance of a permit to carry a concealed weapon to any officer who has retired “because of a psychological disability.” ...
Bates now sues the City, Davis and Amoroso for violation of his civil rights to freedom from deprivation of due process of law, freedom from summary punishment and freedom from the deprivation of the right to bear arms for failing to initially grant him a concealed weapons permit under § 12027.1. [Footnote:] The denial of a concealed weapons permit does not constitute a deprivation of the right to bear arms. Hickman v. Block, 81 F.3d 98, 101-02 (9th Cir.1996), cert. denied, 519 U.S. 912 (1996)....
But Hickman expressly rested on the view that "the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen" — a view D.C. v. Heller expressly rejected. As one might guess, while district courts are generally bound by circuit precedent, "where intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority" — including when the irreconcilability is in the "mode of analysis" and not just square conflict in the specific holdings — "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, 899, 900 (9th Cir. 2003). And it's not like Heller was a low-profile case that judges and clerks would routinely miss, or that the conflict between Heller and Hickman> was somehow subtle.
Now it may well be that under Heller, concealed weapons bans remain constitutional; there's language in Heller that suggests this. I should also note that all the briefing in this case came before Heller, so the parties technically didn't raise Heller; and more broadly, my skim of the plaintiff's opposition to the city's motion for summary judgment didn't really discuss the Second Amendment. If the court had made any of these points, that would have been fine. But simply relying on a precedent that Heller swept away strikes me as wrong, though of a piece with other recent decisions (see here and here).
Ninth Circuit's Sensible Response to a D.C. v. Heller Claim:
From yesterday's unpublished U.S. v. Gilbert (some paragraph breaks added):
Keith Gilbert appeals his jury conviction on one count of conspiracy to manufacture unregistered firearms ..., one count of being a felon in possession of a firearm ..., seven counts of possession of a machinegun ..., and two counts of possession of an unregistered firearm ....
At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws. Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel's objections and instructed the jury to disregard Gilbert's answers.
The court also denied Gilbert's request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government's request, the following instruction:
A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.
... The district court's instructions were particularly appropriate to rebut inferences created by Gilbert's counsel's statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert's stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law.
The Supreme Court's recent decision in District of Columbia v. Heller, holding that the Second Amendment protects a limited individual right to possess a firearm -- unconnected with service in a militia -- does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms....
Gilbert also argues that the district court erred by preventing him from testifying as to his understanding and beliefs concerning the Second Amendment.... [T]he charges against Gilbert did not require, as an element of proof, evidence that Gilbert knowingly broke the law, only that he knowingly possessed weapons and knew the characteristics of those weapons. The only elements of proof which required inquiry into Gilbert's mental state were met: the government proved that Gilbert joined the conspiracy knowing its object and intending to accomplish it, and that he knowingly possessed machineguns and a rifle with a barrel less than 16 inches in length.
Thus we conclude that the district court acted well within its discretion to exclude Gilbert's testimony regarding his beliefs about the Second Amendment as inadmissible [as irrelevant]. For the same reason, we conclude that the district court's exclusion of Gilbert's testimony did not violate his right to present a witness in his own defense.
Whatever one might think about what D.C. v. Heller should have said about these issues (and I'm inclined to approve of its conclusions on them), it seems to me the Ninth Circuit read and applied Heller quite correctly.
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.
Another Post-Heller Second Amendment Decision:
U.S. v. Robinson (E.D. Wis. July 23) (Adelman, J.):
[D]efendant fails to show that Heller renders his prosecution [for being a felon in possession of a firearm] constitutionally infirm....
First, defendant fails to demonstrate that Heller applies to felons. The Court specifically stated in that case:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose....
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.
Defendant claims that this is dicta, but I cannot so quickly dismiss this explicit limitation on the Court’s holding. Further, defendant cites no authority in support of his claim that the Second Amendment right extends to felons. To my knowledge, no court has, even under an individual rights interpretation of the Second Amendment, found 18 U.S.C. § 922(g) constitutionally suspect. E.g., United States v. Emerson, 270 F.3d 203, 262-63 (5th Cir. 2001) (finding that the Second Amendment protects individual rights, but nevertheless upholding § 922(g)(8)); [also citing some post-Heller district court and unpublished circuit court cases]. Finally, the Seventh Circuit regularly rejected such challenges pre-Heller, see, e.g., United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003) (noting that even advocates of an individual rights interpretation of the Second Amendment excluded felons), and nothing in Heller persuades me that the court of appeals is likely to change course now.
Second, defendant can find little support in Heller given the circumstances of his case. Heller’s actual holding is:
that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
Defendant contends that he was accosted by police on the porch of his home and found to be in possession of a firearm, which he claims he possessed to protect himself and his family in the high crime area in which they lived. However, he glosses over the circumstances of his encounter with the police. [Details omitted. -EV] Even under its broadest possible reading, Heller does not sanction a felon carrying a gun in his pocket in public, then pulling that gun on a police officer [which is what the court concludes happened here -EV]. The Second Amendment interests in self-defense and protection of the home discussed in Heller cannot reasonably be extended to cover defendant’s conduct here.
Mistake of Fact About Whether You're a Felon = Defense to Felon-in-Possession Statute (with Second Amendment in a Supporting Role):
Federal law bans felons from possessing firearms, but doesn't expressly say whether this applies only to people who know they are felons. Usually this doesn't matter, since it is the rare felon who's confused about whether he's a felon. But U.S. v. Kitsch (E.D. Pa. Aug. 1, 2008) (Dalzell, J.), involves such a case:
[Footnote: The facts are largely undisputed. Because we must decide whether Kitsch's version of the story would, if credited by the jury, justify acquittal, we resolve any factual disputes in his favor for purposes of this motion.] In 1988 and 1989, Kitsch was cooperating with law enforcement officials in Atlantic County, New Jersey in an investigation against a man named Dino Starn who was, among other things, growing marijuana in a barn on his property. As a means of helping the narcotics officer with whom he was working obtain evidence against Starn, Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department. When the fire department arrived, it found the marijuana growing in the barn and Starn was later charged.
As a result of the fire, Kitsch was charged with third-degree arson, a felony under both New Jersey and federal law. He pled guilty to the state offense after meeting with law enforcement officials who told him they would set aside the conviction and Kitsch could live as though the event had never happened. Although he served a thirty-day custodial sentence on Sundays, Kitsch avers that he truly and reasonably believed that his conviction had either been set aside or expunged. [More factual details omitted. -EV]
The district court concludes that under federal law Kitsch would be guilty only if he knowingly possessed a gun knowing that he was a felon, and that Kitsch is entitled to a jury instruction that "in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged."
The district court's reasoning chiefly rested on the general presumption against strict liability, to its reading of this statute, and to its reading of past precedents interpreting similar statutes; based on this, the court was willing to reject an out-of-circuit court of appeals precedent, United States v. Langley, 62 F.3d 602 (4th Cir. 1995), that held the contrary. But the court also suggested that the Second Amendment, as interpreted in D.C. v. Heller, supported its conclusion:
A statute that imposes criminal penalties for the exercise of an enumerated constitutional right despite defendant's reasonable belief in good faith that he has complied with the law must, at the very least, raise constitutional doubts. Post-Heller, the Government's desired construction of Section 922(g)(1) imposes just such a burden on defendants who, for whatever reason, reasonably believe that they are not felons within the statutory definition. Faced with a statute that raises this sort of doubt, it is "incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress."
The trial is yet to come; we'll see whether the court's ruling helped Mr. Kitsch. For a similar opinion concluding that a constitutional right to bear arms -- there, both the Second Amendment and a right to bear arms under the state constitution -- counseled against reading a gun control law as imposing strict liability, see State v. Williams, 148 P.3d 993 (Wash. 2006) (which I blogged about here).
Court Citing the Second Amendment In Way That Helps Gun Owner:
I should note that the no strict liability under the felon-in-possession decision that I discussed below appears to be the first post-Heller case in which the Second Amendment was actually cited in a way that helps a gun owner (though not as a decisive factor, but just reinforcement for a conclusion that the court said would have been reached even without the Second Amendment).
Post-Heller Federal Appellate Decision on the Second Amendment:
U.S. v. Fincher (8th Cir.) (thanks to How Appealing for the pointer):
[U]nder Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. [The court apparently took the same view as to Fincher's sawed-off shotgun. -EV] Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller.
There's more, dealing with Fincher's pre-Heller arguments that his membership in a non-state-run militia group gave his actions constitutional protection.
Second Amendment Doesn't Protect Illegal Aliens:
So concludes a Magistrate Judge in the Southern District of Florida, in U.S. v. Boffil-Rivera, recommending that the District Judge reject a constitutional challenge to a federal statute that criminalizes gun possession by illegal aliens. Seems like a pretty sensible result, but what's interesting is the reasoning:
That common law right [to keep and bear arms, secured by the Second Amendment,] was held only by citizens and those who swore allegiance to the Government; it did not include everyone present on American soil.... For instance, Samuel Adams and other delegates urged the Massachusetts ratifying convention to recommend barring Congress from “prevent[ing] the people of the United States, who are peaceable citizens, from keeping their own arms.” The New Hampshire convention proposed that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” In these proposals, the pre-existing right clearly inured only to “peaceable” or lawful “Citizens.” See also David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626–27 (2000) (“The average citizen whom the Founders wish to see armed was a man of republican virtue -– a man shaped by his myriad ties to his community, the most important for this purpose being the militia.”).
Founding-era statutes confirm this limitation on the pre-existing common law right. During the American Revolution, several states passed laws providing for the confiscation of weapons owned by persons refusing to swear an oath of allegiance to the state or the United States. To deal with the potential threat coming from armed citizens who remained loyal to Great Britain, states took the obvious precaution of disarming these persons. Thus, even within the confines of the pre-existing right to keep and bear arms, certain persons -– such as those who did not swear loyalty to this country -– were seen as falling outside the protection of that right, and laws or regulations that disarmed them were well-established at the time the Second Amendment was adopted. Indeed, several Founding-era state constitutions expressly provided that the right to bear arms extended only to “citizens.” See, e.g., Pa. Cons. Stat. (1790); Ky. Const. (1792); Miss. Const. (1817); Conn. Const. (1818); Me. Const. (1819).
Along these same lines, Heller concluded that the reference to “the people” in the Second Amendment “unambiguously refers to all members of the political community, not an
unspecified subset.” Heller grouped this reference to “the people” with others found in the Bill of Rights, specifically the First, Fourth, and Ninth Amendments, as
defined by an earlier Supreme Court decision, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). In that decision, which related to the scope of the Fourth Amendment’s application to the DEA’s search of a foreign national that took place
on foreign soil, Justice Rehnquist’s majority opinion adopted the following definition of “the people”:
“[T]he people” seems to have been a term of art employed in select parts of the Constitution .... [Its uses] sugges[t] that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
Verdugo-Urquidez is but one example of a series of cases that recognize that foreign nationals or “aliens” are not entitled to all the rights and privileges of American citizens. Justice Jackson’s “ascending scale of rights” analysis is fully applicable today:
The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.
Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis added). As a result, lawful resident aliens who are present within the constitution’s jurisdiction and have “developed
substantial connections with this country” are entitled to minimal constitutional protections. The recognition of certain rights to resident aliens, however, does not mean that “all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; ....”
Neither foreign nationals who have not yet reached our shores, nor illegal aliens who have done so unlawfully and without the Attorney General’s permission, are entitled to the full panoply of rights available to citizens or even resident aliens. To the contrary, that status by definition places such individuals outside the traditional protections of the Constitution ....
Clearly, under any historical interpretation of the enactment of the Second Amendment or the interpretation of any similar right under the Constitution, the individual right to bear arms defined by Heller does not apply to an illegal and unlawful alien. This Defendant, alleged by this Indictment to have been an unlawful alien, is not a citizen, is not ostensibly a person with identifiable and significant ties to the community, and is not someone who has any duty of allegiance to the United States. A person of his status could have been barred from possessing a firearm under English or Colonial American common law, and similarly could be precluded from doing so under the Second Amendment. His mere presence here does not entitle him to constitutional protection because he is clearly outside the scope of the “political community” who are conferred rights under the Second Amendment....
I'm inclined to be skeptical of arguments based on Revolutionary-War-era statutes — what a nation did in time of a war in which its existence is in very serious doubt doesn't tell us that much about what the general constitutional rules ought to be. But the view that "the people" wasn't understood as including illegal aliens seems to me quite plausible.
More on the implications of this decision (and of the underlying question) in posts to come. Thanks to Robert Luck for the pointer.
The Second Amendment and Non-Citizens:
The Second Amendment / illegal alien decision discussed in the post below reminds me of a broader question — do noncitizens who are legally present in the U.S. have Second Amendment rights?
1. Federal law generally bars gun possession by noncitizens who are here under a nonimmigrant visa. Some state laws go further and ban all possession by noncitizens, including by permanent residents. The law of Guam likewise bans all possession by noncitizens, and because federal statutes extend the Bill of Rights to Guam, the Guam law could be challenged even without reaching the question whether the Second Amendment is incorporated against the states.
Generally speaking most constitutional rights have been extended (at least where criminal punishment, as opposed to the threat of deportation, is involved) to legal aliens. Should this apply to the Second Amendment? The reasoning in the illegal alien opinion seems to potentially apply to legal aliens as well, though that's not clear.
2. Also, what about the Court's doctrine that state and local laws (as opposed to federal law) discriminating based on citizenship are subject to strict scrutiny? There's an exception for discrimination that denies aliens access to "political functions" that are "intimately related to the process of democratic self-government" (such as voting or jury service, or hiring of police officers, probation officers, or public school teachers), but given the Court's self-defense-rights reasoning in Heller, that likely doesn't apply here. A few state courts have considered this argument, and have split on it. See generally Pratheepan Gulasekaram, Aliens With Guns: Equal Protection, Federal Power, and the Second Amendment, 92 Iowa L. Rev. 891 (2007).
3. Note also that some state constitutions secure a right to keep and bear arms to all persons, while others speak of "people" and still others speak specifically of "citizens." There might thus be a right to bear arms under at least some such state constitutions, as I argued in this op-ed that criticized an Omaha ban on handgun possession by noncitizens (including perfectly legal residents) — the Nebraska Constitution provides that "All persons have certain inherent and inalienable rights," including "the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes." Cf. People v. Zerillo, 189 N.W. 927 (Mich. 1922) (striking down on state right-to-bear-arms grounds a ban on aliens possessing guns); People v. Nakamura, 62 P.2d 246 (Colo. 1936) (likewise). But see State v. Vlacil 645 P.2d 677 (Utah 1982) (rejecting such a claim without much explanation, under a state constitutional provision that speaks of "the people" rather than citizens); and there are also several decisions from other states that reject noncitizens' claims on the plausible theory that the particular state constitutional provision speaks expressly of a right of the "citizen."
Illegal Aliens and Other Constitutional Provisions:
The magistrate judge's opinion in the Second Amendment illegal alien case also reminded me of our own then-Judge Paul Cassell's opinion in a Fourth Amendment case involving an illegal alien who feloniously reentered the U.S. If the magistrate judge's opinion is adopted by the district court, and the decision is then appealed and affirmed using the reasoning that "the people" doesn't generally include illegal aliens, it may well have an important effect on Fourth Amendment illegal alien cases as well as Second Amendment ones.
UPDATE: Reader David Warren points out that then-Judge Cassell later expressly held the opposite as to an illegal alien who had not feloniously reentered the U.S. See U.S. v. Atienzo, 2005 WL 3334758 (D. Utah 2005):
In light of Esparza-Mendoza [the earlier case I linked to above], the question is now presented as to whether that decision should be extended to block illegal aliens who are not previously-deported felons from claiming Fourth Amendment protections. As just explained, this issue was specifically reserved in Esparza-Mendoza. The reasoning of Esparza-Mendoza does not automatically require the conclusion that illegal aliens who are not felons are categorically barred as a class from asserting Fourth Amendment rights. The opinion rests in no small part on the unique status of felons-who are generally excluded from the political process. With respect to illegal aliens who are not felons, the decision whether they fall outside the Fourth Amendment would seem to require a case-by-case determination. Because in this case the government does not challenge Atienzo's argument that he has sufficient connections, the court concludes that he can assert a Fourth Amendment claim.
While deported alien felons are excluded from the national community in a permanent way, the situation may be different for at least some persons who have committed no felonious criminal act other than to remain in this country illegally....
Having rejected the categorical position that all illegal aliens as a class lack sufficient connection to this country to assert Fourth Amendment rights, the court has no legal arguments before it disputing Atienzo's specific position that he has sufficient connections. In light of the posture of the case, the simplest course is for the court to then accept the uncontested specific view that Atienzo can claim Fourth Amendment protection.
The Second Amendment opinion I link to, of course, concludes that illegal aliens generally, not just illegal alien felons, lack Second Amendment rights.
The Second Amendment and People Convicted of Domestic Violence Misdemeanors:
From U.S. v. Booker (D. Me. Aug. 11) (Woodcock, J.):
Heller left unanswered a significant question: The level of scrutiny the Court must apply to the restriction on Mr. Booker's individual right to bear arms. As Heller notes, the "traditionally expressed levels" are "strict scrutiny, intermediate scrutiny, and rational basis." The Heller majority acknowledged that it did not establish "a level of scrutiny for evaluating Second Amendment restrictions," but it left some hints. First, the Heller majority rejected Justice Breyer's "interest-balancing" approach, observing that it knew "no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach." Second, the majority conceded that the District of Columbia law would pass rational-basis scrutiny and, since it ruled the District's complete ban on handguns unconstitutional, the necessary implication is that the rational-basis test is not applicable. The remaining options are strict and intermediate scrutiny.
Strict scrutiny is generally reserved for statutory restrictions that affect the exercise of certain "fundamental right[s]." The individual right to bear arms might well be a fundamental right, the restriction of which requires strict scrutiny. This conclusion is supported by the placement of Second Amendment within the Bill of Rights alongside this Country's most precious freedoms. However, as Justice Breyer points out, Heller expressly approves some statutory restrictions -- the types of people who may exercise this freedom; the places where this freedom may be exercised; and, the ability to buy and sell the objects of this freedom -- "whose constitutionality under a strict scrutiny standard would be far from clear." "Intermediate scrutiny is used, for discrimination based on gender and for discrimination against nonmarital children." Heller itself concedes that it does not "clarify the entire field." It consciously left the appropriate level of scrutiny for another day.
Rather than tackle this complex and unanswered question, the Court starts from a different place. Heller teaches that even though the Second Amendment guarantees an individual right to bear arms, it is "not unlimited." Heller states that "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." A useful approach is to ask whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of "longstanding prohibitions" that survive Second Amendment scrutiny.
The Court concludes it does. To reach this conclusion, the Court starts by comparing the constitutionally-sanctioned prohibition against firearm possession by felons with the prohibition against persons convicted of misdemeanor crimes of domestic violence. A person can, of course, be convicted of a felony which had nothing to do with physical violence and which would not necessarily predict future misuse of a firearm. Nevertheless, the law forbids any convicted felon, regardless of the nature of the felony, from possessing firearms and Heller constitutionally sanctioned this broad prohibition. [Footnote: The same point is generally applicable to the mentally ill....]
By contrast, the predicate offense under which Mr. Booker was convicted is defined in 18 U.S.C. § 922(g)(9) as requiring "the use or attempted use of physical force" by someone who is a spouse, parent, or guardian of the victim or someone in a position similar to a spouse, parent, or guardian of the victim. [Footnote: Mr. Booker emphasizes that an individual may be convicted of a misdemeanor crime of domestic violence in Maine by reckless behavior; he argues that there is not a significant enough government interest to deprive him of his Second Amendment right if he acted only recklessly. However, the felony convictions to which Mr. Booker's predicate offence is being compared run the gamut of the mens rea spectrum, and a domestic violence offender's mens rea does not impact the Court's analysis under Heller.] If anything, as a predictor of firearm misuse, the definitional net cast by § 922(g)(9) is tighter than the net cast by § 922(g)(1). Turning to the governmental interest, the manifest need to protect the victims of domestic violence and to keep guns from the hands of the people who perpetrate such acts is well-documented and requires no further elaboration.
Based on the absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence, the critical nature of the governmental interest, and the definitional tailoring of the statute, the Court concludes that persons who have been convicted of a misdemeanor crime of domestic violence must be added to the list of "felons and the mentally ill" against whom the "longstanding prohibitions on the possession of firearms" survive Second Amendment scrutiny.
Not an unanswerable argument, of course, but at least a plausible and relatively detailed attempt to confront the underlying question, unlike some of the other early post-Heller district court decisions (see, for instance, here).
District Court on the Second Amendment:
Industrious v. Cauley (E.D. Ky. Oct. 1), rejects yet another Second Amendment challenge to felon-in-possession laws -- a result that is correct under D.C. v. Heller, and also seems justified in this particular case on various procedural grounds that the court mentions. But at the end, the court says -- citing the D.C. Circuit decision that Heller affirmed, Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), and that petitioner relied on more than he did on Heller --
Finally, the Court notes that the Parker decision concerned gun restriction laws and the unique legal status of the District of Columbia, as opposed to the status of “States.” See Parker, 478 F.3d at 406 (“The Second Amendment’s “character and aim” does not require that we treat the District as a State. The Amendment was drafted in response to the perceived threat to the “free[dom]” of the “State[s]” posed by a national standing army controlled by the federal government .... Accordingly, both the Supreme Court and this court have consistently held that several constitutional provisions explicitly referring to citizens of “States” do not apply to citizens of the District.”). Parker does not assist Industrious in this § 2241 proceeding.
But the quote from Parker is from the dissent, not from the majority opinion. The majority expressly held that the Second Amendment did apply to citizens of the District. And more broadly, the majority's reasoning recognizing an individual right to possess guns was not limited to D.C. residents, or tied to "the unique legal status of the District of Columbia" -- it applied equally to federal laws affecting U.S. citizens throughout the country, as does the Heller decision, which affirmed the D.C. Circuit majority opinion. (Note that the Industrious case involved a conviction for violating a federal law.)
As I said, this doesn't affect the bottom line, given Heller's assertion that bans on felon possession of guns are constitutional, and given the apparent procedural barriers to Industrious's claim (I assume the district court is right about those). But it does show a pretty serious error in the district court's interpretation and citation of the Parker decision, and in the district court's understanding of current Second Amendment law.
I should note, before people start casting political aspersions, that Judge Wilhoit, who wrote the opinion, was appointed by President Reagan in 1981.
District Court Upholds Ban on Firearms Possession by Unlawful Users of Controlled Substances:
The statute is 18 U.S.C. § 922(g)(3), which bans possession by anyone "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act." The case is U.S. v. Yancey (W.D. Wis. Oct. 3), and the relevant analysis is:
As this court noted recently, Heller stands only for the proposition that the District of Columbia cannot constitutionally ban handgun possession in the home for use in self-defense by persons not otherwise prohibited from gun possession. United States v. Kilgore, 2008 WL 4058020 (W.D. Wis. Aug. 26, 2008).
Heller did not address a state’s right to impose restrictions on handgun possession. Indeed, the Court said explicitly that its opinion was not intended to suggest that all gun laws and firearms restrictions are unconstitutional. Id., at 2816-17 ("[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ...["]). As this court held recently in affirming the constitutionality of 18 U.S.C. § 922(g)(1), which criminalizes firearm possession by felons, Heller did not make the firearm restrictions of 18 U.S.C. § 922(g) constitutionally suspect. Instead, this statute contains just the sort of longstanding prohibitions on firearm possession that Heller allowed. Kilgore, 2008 WL 4058020.
Since Heller was decided, no court has found the firearm restrictions in 18 U.S.C. § 922 to be unconstitutional, even under an individual rights interpretation of the Second Amendment. Instead, courts have repeatedly affirmed the constitutionality of the statute’s prohibition of firearm possession by felons, E.g., Kilgore, 2008 WL 4058020; United States v. Robinson, 2008 WL 2937742 (E.D. Wis. July 23, 2008); U.S. v. Brunson, 2008 WL 4180057 (4th Cir. Sept. 11, 2008); United States v. Irish, 2008 WL 2917818 (8th Cir. July 31, 2008); United States v. Gilbert, 2008 WL 2740453 (9th Cir. July 15, 2008)); persons convicted of domestic violence offenses (United States v. Booker, 2008 WL 3411793 (D. Maine Aug. 11, 2008); United States v. White, 2008 WL 3211298 (S.D. Ala. Aug. 6, 2008)); and illegal aliens (United States v. Boffil-Rivera, No. 08-20437(S.D. Fla. Aug. 12, 2008)). Although to my knowledge no court has confronted the provision defendant challenges, which prohibits firearm possession by an unlawful user of a controlled substance, the provision’s constitutionality is not suspect. Rather, it is another example of a longstanding prohibition on firearm possession that Heller permits.
If the government proves, as it has charged, that defendant is an unlawful user of a controlled substance and that he was in knowing possession of a firearm, a jury could find defendant guilty of violating 18 U.S.C. § 922(g)(3). Such a conviction would not violate the Second Amendment to the United States Constitution. Nothing in Heller restricts the federal government from criminalizing the possession of firearms by unlawful users of controlled substances.
Second Amendment, Illegal Aliens, and Noncitizens More Generally:
U.S. v. Guerrero-Leco, 2008 WL 4534226 (W.D.N.C. Oct. 6, 2008), holds that the Second Amendment doesn't apply to illegal aliens. The court correctly declines to follow pre-Heller Fourth Circuit precedent that upheld the ban on illegal aliens' possession of guns, and instead reasons itself from Heller. The reasoning, unfortunately, isn't very detailed:
The Supreme Court did not find that all individuals present in America are protected by the Second Amendment. Rather, the Court described that protection as belonging to American citizens [footnote] who "inherited [it] from our English ancestors." Nothing in the opinion purports to extend the Second Amendment's protection to those outside the American political community like the defendant who allegedly entered and remained unlawfully in the country. This inferior court will not read into Heller a more expansive right than recognized therein.
[Footnote:] Examples include: "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation," Id. at 2799 (emphasis in original); "this right was intended ... and was guaranteed to, and to be exercised and enjoyed by the citizen," Id. at 2806 (quoting Andrews v. State, 50 Tenn. 165, 183 (1871)(ellipsis in original; internal quotation marks omitted)); "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," Id. at 2815-16; "[The District's requirement] makes it impossible for citizens to use [firearms in the home] for the core lawful purpose of self-defense and is hence unconstitutional," Id. at 2818.
But I doubt that the Court's casual references to citizens were a deliberate judgment that the right only applies to citizens (and thus not to, for instance, legally resident aliens), or should be treated as holding or even strong dictum on the matter. "Citizen" is sometimes loosely used, including in court opinions, to generally mean individuals; and more broadly courts may talk about the rights of citizens (who are the bulk of rightsholders) without foreclosing the possibility that noncitizens might have such rights as well. Consider, for instance, the full context for the first passage quoted in the footnote: "Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." The Court wasn't suggesting that the First Amendment protects only citizens (a view that the Court has generally expressly rejected); it was using citizens to mean something broader (or at least saying that citizens have the right without denying that noncitizens might as well).
There are good and careful arguments that can be made in favor of the conclusion that the Second Amendment doesn't apply to illegal aliens -- such as those put forth by a magistrate judge in the Southern District of Florida in August -- but I don't think that the court's argument here is by itself persuasive.
The NRA Clinging to Guns and Pro-Immigrant Sentiment:
Federal law doesn't bar permanent resident noncitizens from getting guns, and neither does Washington State law. But Washington law requires that noncitizens get a special alien firearm license, and the state Department of Licensing is refusing to issue such licenses:
We are unable to issue alien firearms licenses at this time.
The Federal Bureau of Investigation (FBI) has told law enforcement agencies it is against federal law to use federal databases for background checks if they share the results with a non-criminal justice agency such as the Department of Licensing. As a result:
* Law enforcement agencies cannot perform the background checks required by state law for issuing an alien firearms licenses.
* We cannot complete the application process or issue alien firearms licenses.
The NRA, the Second Amendment Foundation, and several permanent residents who live in Washington are now suing, claiming this violates the Second Amendment (which they argue is incorporated against the states via the Fourteenth Amendment) as well as the Equal Protection Clause and 42 U.S.C. § 1981. For more on the general legal theories involved, see this post of mine from three months ago. For more on the litigation, see this Seattle Post-Intelligencer article. Note that the Washington Constitution's right to bear arms is of no help to noncitizens, because — unlike some other state constitutions (e.g., Nebraska's) — the Washington Constitution secures the right only to each "individual citizen."
By the way, here's the 42 U.S.C. § 1981 theory, which my earlier post didn't discuss:
1. This statute — enacted shortly after the Civil War — provides (emphasis added), "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
2. This doesn't just bar race discrimination, but also discrimination against noncitizens (as to the subjects involved).
3. The state constitutional provision securing a right to bear arms, and state laws related to concealed carry licenses, are "laws ... for the security of persons and property."
4. Therefore, discrimination against "lawfully admitted resident aliens" violates § 1981.
Note: Though the logic of this statutory argument might extend beyond lawfully admitted resident aliens, federal gun statutes generally bar gun possession by illegal aliens and by most aliens who have nonimmigrant visas. These statutes likely implicitly limit § 1981 as to those kinds of aliens. And even if § 1981 continues to preempt state laws limiting ownership by such non-lawful-immigrant noncitizens, federal law would make such ownership illegal and thus make the state law question largely moot.
Thanks to Venkat Balasubramani for the pointer.
Judges Kozinski, Kleinfeld, and Rawlinson Weigh in on the Second Amendment on Airplanes:
From U.S. v. Davis (Nov. 21) (unpublished and unsigned); recall that Judges Kozinski and Kleinfeld endorsed the individual rights view of the Second Amendment even before D.C. v. Heller (in their dissents from denial of rehearing en banc in Silveira v. Lockyer, and in Judge Kleinfeld's similar dissent in Nordyke v. King):
We affirm James S. Davis's conviction and sentence for fraud and carrying a concealed weapon on an airplane. Davis got through security with a handgun underneath his jacket because he impersonated a federal Customs Agent.
Davis challenges the constitutionality of 49 U.S.C. § 46505, relying on District of Columbia v. Heller, 128 S. Ct. 2783 (2008). The Supreme Court specified that nothing in that opinion was intended to cast doubt on the prohibition of concealed weapons in sensitive places. Id. at 2816-17....
A Fairly Detailed Discussion of the Second Amendment and Domestic Restraining Orders:
U.S. v. Luedtke (E.D. Wis. Nov. 18, 2008) upholds against a Second Amendment challenge the federal ban on possessing firearms while under a domestic restraining order, and offers more analysis than most district court Second Amendment decisions have provided. I'm not sure the analysis is entirely right, but it struck me as worth noting. Note also that the decision leaves open the door to challenging what strikes me as the most troublesome aspect of the federal ban, which is that in principle it could apply even in jurisdictions where courts may issue a boilerplate injunction that "explicitly prohibits the use, attempted use, or threatened use of force" without a finding that the target has indeed in the past already used, attempted to use, or threatened to use illegal force.
In the present case, defendant is charged with a violation of § 922(g)(8), which makes unlawful the possession of a firearm or ammunition by one:
who is subject to a court order that--
18 U.S.C. § 922(g)(8)....
(A) was issued after a hearing of which such person received actual notice, and
at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner or person, or engaging
in other conduct that would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the
physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of
physical force against such intimate partner or child that would reasonably be
expected to cause bodily injury[.]
It is true that the Lautenberg Amendment does not represent a “longstanding prohibition on the possession of firearms,” but nothing in Heller suggests that the Court intended to permit only those precise regulations accepted at the founding. Rather, the Court’s examples are best understood as representing the types of regulations that pass constitutional muster. See United States v. Booker, 570 F. Supp. 2d 161, 163 (D. Me. 2008) (“A useful approach is to ask whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of ‘longstanding prohibitions’ that survive Second Amendment scrutiny.”). Sections 922(g)(8) and (9) are regulations of a type traditionally permitted in this nation.
Laws barring felons and the mentally ill from access to weapons have historically been
based on the societal determination that such individuals pose a particular danger. See, e.g., United States v. Lewis, 249 F.3d 793, 796 (8th Cir. 2001) (citing Barrett v. United States, 423 U.S. 212, 218-21 (1976); Huddleston v. United States, 415 U.S. 814, 824-25 (1974)). Such prohibitions on firearm possession by the potentially dangerous or unstable have deep roots in our history. In the classical republican political philosophy ascendant at the founding, the concept of a right to arms was tied to that of the “virtuous citizen.” Consistent with this emphasis on the virtuous citizen was that the right to arms did not preclude laws disarming the “unvirtuous” (i.e., criminals) or those who, like children or the mentally unbalanced, were deemed “incapable of virtue.” Thus, felons, children and the insane were excluded from the right to arms. Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (citing Don B. Kates Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986)).
The Gun Control Act of 1968 carried on this tradition. As Congressman Celler, the
House Manager of the Act, stated:
[W]e are convinced that a strengthened system can significantly contribute to reducing the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses, from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons.Lewis, 249 F.3d at 796 (quoting 114 Cong. Rec. 21784 (daily ed. July 17, 1968); see also Barrett, 423 U.S. at 220 (“The history of the 1968 Act reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons.”); Huddleston, 415 U.S. at 824 (“The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’”) (quoting S. Rep. No. 1501, at 22 (1968), as reprinted in 1968 U.S.C.C.A.N. 4410).
Sections 922(g)(8) and (9) serve the same purpose. As Senator Lautenberg explained:
Under current Federal law, it is illegal for persons convicted of felonies to possess firearms, yet, many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies. At the end of the day, due to outdated laws or thinking, perhaps after a plea bargain, they are, at most, convicted of a misdemeanor. In fact, most of those who commit family violence are never even prosecuted. But when they are, one-third of the cases that would be considered felonies, if committed by strangers, are instead filed as misdemeanors. The fact is that in many places domestic violence is not taken as seriously as other forms of brutal behavior. Often acts of serious spouse abuse are not even considered felonies.United States v. Smith, 964 F. Supp. 286, 292-93 (N.D. Iowa 1997) (quoting 142 Cong. Rec. S10377-01 (daily ed. May 16, 1997)), aff’d, 171 F. 3d 617 (8th Cir.1999).
There is no reason for [people] who beat[ ] their wives or abuse[ ] their children to own a gun ... This amendment would close this dangerous loophole and keep guns away from violent individuals who threaten their own families, people who have shown that they cannot control themselves and are prone to fits of violent rage directed, unbelievable enough, against their own loved ones. The amendment says: Abuse your wife, lose your gun; beat your child, lose your gun; assault your ex-wife, lose your gun; no ifs, ands, or buts.
Further, Congress possessed significant evidence that firearm violence by this category of persons presented a serious national problem. As the First Circuit stated:
Observing that “nearly 65 percent of all murder victims known to have been killed by intimates were shot to death,” 142 Cong. Rec. S10379 (daily ed. Sept. 12, 1996) (statement of Sen. Murray), Congress hoped that closing this loophole would help to reduce the 150,000 instances of household violence involving firearms that are reported each year. 142 Cong. Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg).
United States v. Hartsock, 347 F.3d 1, 5 (1st Cir. 2003); see also United States v. Booker, 555 F. Supp. 2d 218, 225-26 (D. Me. 2008) (discussing the legislative history and purpose of the Lautenberg Amendment); United States v. Meade, 986 F. Supp. 66, 68 (D. Mass. 1997) (same), aff’d, 175 F. 3d 215 (1st Cir. 1999). Nothing in Heller suggests that Congress may not -- based on further experience and study -- close such loopholes, adding to the list of dangerous individuals historically barred from firearm possession. I therefore reject defendant’s argument that § 922(g)(8) is inconsistent with the historical practices discussed in Heller....
Defendant also argues that § 922(g)(8) sweeps too broadly, applying to persons not
found imminently dangerous by any court, and that the statute contains insufficient procedural protections. I address each contention in turn.
First, there is no requirement under the Second Amendment that only those persons found imminently likely to engage in gun violence may be dispossessed of their firearms. Indeed, under § 922(g)(1), all felons -– save those convicted of “antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,” 18 U.S.C. § 921(a)(20); see also United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998) (finding it reasonable for Congress to exempt this class of non-violent offenders) –- are prohibited from possessing guns, with no requirement of a specific finding of danger. One could argue that by requiring an individualized finding of danger or risk by a court, § 922(g)(8) actually more narrowly serves this salutary purpose than does the general ban on possession by (most) felons. Defendant offers no persuasive argument why the Second Amendment would permit application of a firearm ban to a person convicted of, say, mail fraud, see Dreher v. United States, 115 F.3d 330, 332 (5th Cir. 1997) (holding that mail and wire fraud offenses are not excluded by § 921(a)(20)(A)), but not one who “represents a credible threat to the physical safety of [his] intimate partner or child.” 18 U.S.C. § 922(g)(8)(C)(i).
Second, although the procedural protections under § 922(g)(8)(A) do not equal those afforded the criminally accused, defendant provides no authority for the proposition that counsel, a jury trial and/or proof beyond a reasonable doubt are always required before a
person may be stripped of a constitutional right. Indeed, even those courts which, pre-Heller, had adopted an “individual rights” interpretation of the Second Amendment rejected challenges to the procedures under § 922(g)(8)(A). United States v. Emerson, 270 F.3d 203, 261-62 (5th Cir. 2001). As the Emerson court stated:
Section 922(g)(8)(A) requires an actual hearing with prior notice and an opportunity to participate, and section 922(g)(8)(C)(ii) requires that the order “explicitly” prohibit the use (actual, threatened or attempted) of physical force that would reasonably be expected to cause bodily injury. Congress legislated against the background of the almost universal rule of American law that for a temporary injunction to issue [there must be a likelihood that irreparable harm will occur].Id. at 261-62; see also United States v. Lippman, 369 F.3d 1039, 1044 (8th Cir. 2004).
The domestic abuse order in the present case issued under Wisconsin law, which sets forth clear procedures for injunction matters, including the burden of proof, Wis. Stat. § 813.12(4)(a)3. (“reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner”); a limitation on the length of an injunction, Wis. Stat. § 813.12(4)(c) (up to four years); and a requirement that the respondent be advised of the applicable penalties under state law for firearm possession while under an injunction, and that he must “surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced,” Wis. Stat. § 813.12(4m). In Emerson, the court
conclude[d] that Congress in enacting section 922(g)(8)(C)(ii) proceeded on the assumption that the laws of the several states were such that court orders, issued after notice and hearing, should not embrace the prohibitions of paragraph (C)(ii) unless such either were not contested or evidence credited by the court reflected a real threat or danger of injury to the protected party by the party enjoined. We do not imply that Congress intended to authorize collateral review of the particular state court predicate order in section 922(g)(8)(C)(ii) prosecutions to determine whether in that individual case the state court adequately followed state law in issuing the order. What we do suggest is that Congress did not have in mind orders issued under a legal system whose rules did not approximate the above stated general minimum standards for the issuance of contested injunctive orders after notice and hearing.
270 F.3d at 262. So does Wisconsin’s law. [Footnote: ... I can
leave for another day the issue of whether a viable constitutional challenge to § 922(g)(8) may be mounted if the applicable state law fails to provide the fundamentals of due process.] I therefore reject defendant’s argument that § 922(g)(8) is procedurally flawed.
In any event, it is clear to us that Texas law meets these general minimum standards.
The parties and the magistrate judge discuss the appropriate standard of review under the Second Amendment, with defendant arguing that I must subject the statute to strict scrutiny. It does not appear that the Heller majority endorsed any particular standard. Rather, it engaged in an historical analysis of the types of restrictions permitted by the Second Amendment. Therefore, I believe that the issue is best analyzed in the manner set forth above, i.e. by comparing the challenged regulation to those deemed permissible under the Court’s historical analysis.
However, even if I were to apply strict scrutiny, as defendant asks, the statute would
survive. As Judge Kahn recently explained:
Reducing domestic violence is a compelling government interest, see, e.g., United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004), cert. denied, 543 U.S. 1080 (2005), United States v. Calor, 340 F.3d 428, 432 (6th Cir. 2003), Henderson v. City of Simi Valley, 305 F.3d 1052, 1057 (9th Cir. 2002), and 922(g)(8)’s temporary prohibition, while the state court order is outstanding, is narrowly tailored to that compelling interest. Accord United States v. Emerson, 270 F.3d 203, 262-63 (5th Cir. 2001) (finding that the Second Amendment protects individual rights, but nevertheless upholding § 922(g)(8)). The threatened conduct that is a prerequisite to the prohibition is serious: “harassing, stalking, threatening,” or other conduct that would cause “reasonable fear of bodily injury”; and the court order must make a specific finding of “a credible threat to the physical safety” of an intimate partner or child or an explicit prohibition on the use of force “that would reasonably be expected to cause bodily injury.” 18 U.S.C. § 922(g)(8). These are narrowly crafted limits on when a citizen may possess a firearm and well tuned to the legitimate concerns of avoiding serious physical injury to a partner or child.United States v. Erwin, No. 1:07-CR-556, 2008 WL 4534058, at *2 (N.D.N.Y. Oct. 6, 2008); see also Lippman, 369 F.3d at 1044 (“We also conclude that the restraining order issued against Lippman was narrowly tailored to restrict his firearm possession for a limited duration and to protect the individual applicant and that Congress had a compelling government interest in enacting § 922(g)(8) to decrease domestic violence.”). No court has found § 922(g)(8) wanting, even under strict scrutiny.
District Court Upholds Ban on Machine Gun Possession:
See U.S. v. Hamblen (M.D. Tenn. Dec. 5):
At the same time it recognized a Second Amendment right for an individual to bear arms, the Heller Court limited the scope of that right within the context of its own opinion:
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.
* * *
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.
We also recognize another important limitation on the right to keep and carry
arms. United States v. Miller, 307 U.S. 174 (1939), said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying
of ‘dangerous and unusual weapons.’
Thus, the Heller Court made clear that the Second Amendment right it recognized did not include possession of weapons by certain categories of individuals, or possession of weapons in certain places, or possession of certain types of weapons. The Court specifically discussed the types of weapons that were not protected by the Second Amendment in distinguishing the Miller case:
Read in isolation, Miller’s phrase ‘part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.... We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns....
The conclusion that the Heller Court did not extend Second Amendment protection to machine guns, in particular, is supported by the lower federal courts that have addressed the issue. In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant’s possession of a machine gun was not protected by the Second Amendment under Heller: “Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.”
In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453 (9th Cir. July 15, 2008), the Ninth Circuit approved a jury instruction that an individual does not have a Second Amendment right to possess a machine gun or a short-barreled rifle. The court explained that under Heller, “individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did ...” The Petitioner argues that the limitations placed on the Second Amendment right to bear arms by the majority opinion in Heller can not square with the Court’s earlier decision in Miller. Whatever merit there is to that argument, however, this Court is bound by the Heller opinion as written.
District Court Suggests Second Amendment May Protect Possession of Firearms in Public:
From Lund v. Salt Lake City Corp., 2008 U.S. Dist. LEXIS 98722 (D. Utah Dec. 4):
By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution and Article I, § 6 of the Utah Constitution (recognizing the "individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes," subject to the power of the Legislature to define the "lawful use of arms."). See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) ("There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.") ....
This doesn't contradict the Heller Court's assertion that concealed carry might be limited on the historical grounds that "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."
Here are a few excerpts from the rest of the decision, that help show what this Fourth Amendment case was about:
On November 25, 2006, plaintiff Miles Lund was visiting Liberty Park, a public park located in downtown Salt Lake City, and feeding the ducks that gather on the large pond in the southeast quadrant of the park. Responding to a report of a man with a gun at the park, Officer Curdie arrived, identified Lund as the suspected man with a gun, and approached Lund from behind. When Officer Curdie first saw Lund, he was facing away from Curdie and feeding the ducks in the pond. Curdie drew his firearm, pointed it at Lund and verbally ordered Lund to raise his hands above his head. Lund heard an officer say "Get your hands up or I'll shoot you," placed his left hand on his head, and told Officer Curdie that he was physically unable to raise his right arm above his head. Lund held his right arm away from his body, as high as shoulder level, but could not reach his head. Officer Curdie ordered Lund to go into a kneeling position. Again, Lund told Curdie that he was physically unable to get into a kneeling position. Lund made no hostile or threatening movements or gestures while responding to Officer Curdie's commands, and was described by one witness as being very cooperative.
At the same time, Officers Max Nelson, Jeremy Crowther, Christopher Johnson and Jeremie Foreman had arrived at the scene, and Officers Nelson and Crowther drew their weapons and also held Lund at gunpoint. Officer Nelson told Officer Curdie that he wanted to have Officer Crowther place Lund under arrest. Disregarding this, Officer Curdie holstered his weapon, approached Lund from behind, pinned Lund's arms and shoulders in a "bear hug" embrace and knocked Lund to the ground. Lund's head hit the ground, sustained an abrasion to his forehead and broke his glasses. He was then handcuffed, lifted by the handcuffs, dragged across the sidewalk and placed roughly on a park bench. He then fell off the bench to the ground, in extreme pain caused by the handcuffs forcing his immobile right shoulder into posterior extension.
Lund was found to have no weapon of any kind on his person, and was subsequently released without charge. He was subsequently diagnosed in March of 2007 as having a large intracranial hematoma that more likely than not was the result of his head striking the ground on November 25, 2006, and required surgical treatment....
No one at the scene had observed Lund carrying, brandishing or threatening anyone with a firearm or other weapon in any fashion, and no weapon was found. [Footnote call to the footnote about gun rights that I quoted above; the footnote also discusses Utah statutes' general provision for licensed concealed carry. -EV] Moreover, Officer Curdie was not alone in facing the perceived threat of an unseen weapon. Other officers were present at the scene, two of whom were already holding Lund at gunpoint when Officer Curdie decided to tackle him to the ground. All of them were available to assist Curdie in taking Lund into custody. According to plaintiff Lund's factual allegations, here taken as true, Lund had complied with Officer Curdie's commands as best he could, explained why he could not fully comply and made no threatening movements or gestures towards Curdie or anyone else at the scene. Lund did not actively resist arrest; nor did he attempt to evade arrest by fleeing the scene.
By pointing their weapons at Lund, the officers made an immediate threat of use of deadly force -- which itself represents the use of force under the Fourth Amendment -- in seizing Lund and taking him into custody. See Holland ex rel. Officer Curdie decided to further escalate that use of force by physically taking Lund down to the ground, based upon facts from which Curdie inferred an immediate risk of injury -- factual allegations that Lund disputes. Based upon plaintiff Lund's version of the facts, and considering factors such as the severity of the alleged crime at issue, whether Lund posed an immediate threat to the safety of the officers and others, and whether Lund was actively resisting arrest or attempting to evade arrest by flight, Curdie's escalation of the use of force in taking Lund into custody was unreasonable and excessive....
Second Amendment as Relevant to Defendant's Right To Sue for Declaration of His Federal Firearms Rights?
An interesting decision (Jennings v. Mukasey) that was just uploaded to Lexis, though it was handed down two and a half months ago:
Plaintiff, Bruce L. Jennings, has brought suit seeking, inter alia, a judgment from this Court declaring the status of his rights under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by those convicted of a misdemeanor crime of domestic violence. Specifically, Plaintiff asks this Court to determine whether a 1985 State court conviction for misdemeanor domestic violence prohibits Plaintiff from lawfully possessing a firearm under federal law, notwithstanding the fact that the conviction has been expunged or otherwise set aside by the State court. Because his conviction has been expunged, Plaintiff alleges that 18 U.S.C. § 921(a)(33)(B)(ii) excepts him from § 922(g)(9)’s prohibition against firearm possession.
Plaintiff has further alleged that Defendants have threatened him with criminal prosecution if he should decide to possess a firearm; that this threat of prosecution infringes upon the exercise of his Second Amendment rights; and that Defendants’ threatened prosecution has precluded him from obtaining employment in the firearms industry, in which he has had approximately thirty (30) years of experience in evaluating various designs of handguns for licensed firearm dealers....
Defendants argue that by seeking a declaration that the State court judgment setting aside and expunging Plaintiff’s conviction for misdemeanor domestic violence effects § 921(a)(33)(B)(ii)’s exception to § 922(g)(9), Plaintiff has asked this Court to “restrain the prosecutorial authority of the United States.” As a result, Defendants contend that this Court is without subject matter jurisdiction to hear Plaintiff’s case.
While the Supreme Court has observed that the executive branch has “exclusive authority
and absolute discretion to decide whether to prosecute a case,” and the Fifth Circuit has noted that “courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions,” this discretion can give way where important constitutional rights are at stake....
Assuming, as the Court must at this stage in the proceedings, that Plaintiff’s conviction was duly expunged, it seems that he would clearly fall within the statutory exception in § 921(a)(33)(B)(ii) and would not be subject to prosecution under § 922(g)(9). Furthermore, in light of District of Columbia v. Heller, Plaintiff raises a viable claim that the violation of his Second Amendment right to bear arms also deprives him of the right to earn a livelihood. Taken together, the Court concludes that Plaintiff’s allegations fall within the very limited exception to the general principle of immunity, that Plaintiff is otherwise without an adequate remedy at law, and that Plaintiff would suffer irreparable harm if not permitted to proceed in the instant action....
Where the plaintiff’s suit does not seek to impose upon the fisc, but only to declare the status of fundamental constitutional rights, the requirement of a statutory waiver [of sovereign immunity] should give way....
For more on the dispute about whether Jennings' conviction has indeed been properly expunged, see the discussion here, though the Ninth Circuit in that opinion didn't conclusively deal with Jennings' claim based on the December 2005 state court order.
The Second Amendment and Felons:
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).
Massachusetts Trial Court Holds Gun Storage Law Unconstitutional:
After a police officer's 12-year-old son got access to the officer's handgun, the officer was prosecuted for violating Mass. Gen. Laws. ch. 140, § 131L:
It shall be unlawful to store or keep any firearm, rifle or shotgun ... in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.
Last month, the court held the statute was unconstitutional (Commonwealth v. Bolduc), and dismissed the prosecution. I only just now managed to get a copy of the opinion, and here's the relevant discussion:
The locking mechanisms [required by the statute] are the functional equivalent of those enumerated in the D.C. statute struck down in Heller.
In Heller, the Court held that the Second Amendment not only protects an individual's right to possess firearms but that the right requires that the firearms be available for "the purpose of immediate self-defense." The Massachusetts statute mandating lock boxes or similar devices would frustrate an owner's ability to immediately access an operable weapon.
Although the statute exempts firearms that are "carried" or "under the control of the owner" from the requirement that they be locked, the statute applies to the lawful owner of a firearm even when he is at home. People can be subject to prosecution whether they are home or not. The term "under the control of the owner" is a question of fact and subject to interpretation. Any ambiguity in the statute as applied to a person lawfully keeping a firearm in the home must be resolved in favor of the holder of the right. Legislation requiring an owner to store firearms in a place inaccessible to children or unauthorized persons would satisfy the Supreme Court's holding in Heller and protect the safety of others.
In light of the foregoing, the Court finds that, based on the Supreme Court's decision in District of Columbia v. Heller, G.L.c. 140, sec. 131L is unconstitutional.
According to a Massachusetts Lawyers Weekly article notes that Massachusetts courts seem split on this. It also reports that the prosecutor "agreed with [Judge] Lynch's analysis and decided not to appeal. 'I've read the Heller case,' he says. 'Judge Lynch read the Heller case, and the Heller case seems to say very clearly that these kinds of blanket restrictions are unconstitutional.'"
Interestingly, the court seemed to assume that the Second Amendment applies to state laws -- what lawyers call the "incorporation" issue -- which is something Heller pointedly declined to resolve.
Rare (Partial) Victory in Second Amendment Case:
A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person). The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.
Here is the meat of the opinion, U.S. v. Engstrum (Stewart, D.J.) (June 15, 2009):
This matter is before the Court on Defendant's Motion for Jury Instruction regarding his possession of a firearm. The Court previously denied Defendant's Motion to Dismiss Indictment, in which Defendant argued that the Second Amendment to the U.S. Constitution protected his right to have a firearm in his house for home and self defense. In its April 17, 2009 Order, the Court found that strict scrutiny was required to justify a deprivation of an individual's Second Amendment right to keep and bear arms. The Court also found that 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by those previously convicted of a domestic violence misdemeanor, passed strict scrutiny. Finally, the Court found that § 922(g)(9) was, therefore, presumptively lawful, but that the presumption could be rebutted by a showing that the individual charged under § 922(g)(9) posed no prospective risk of violence. With regard to the Defendant, the Court found that it could not say, as a matter of law, that the Defendant posed no prospective risk of violence.
Defendant concedes that he is a restricted person, otherwise covered by § 922(g)(9). In May 2008, Defendant and his girlfriend (the "Girlfriend") were residing at a home in West Valley City, Utah (the "Residence"). On May 9, 2008, Defendant and the Girlfriend got into an argument and the Girlfriend left the Residence. On May 10, 2008, the Girlfriend returned with the police to retrieve her personal belongings, accompanied by a friend, who waited outside the Residence while the Girlfriend entered to retrieve her belongings. Defendant refused to return her things, and an argument ensued. During that argument, Defendant grabbed the Girlfriend's arm, and the Girlfriend claims she feared for her safety. The Girlfriend attempted to use pepper spray on the Defendant, but the canister did not work. Defendant took the pepper spray away from the Girlfriend and was successful in using it on her. The Girlfriend then left the Residence and called the police.
When police arrived at the Residence, the Girlfriend informed them that Defendant kept a gun in his bedroom, although the gun was never used or displayed in any way by the Defendant prior to the police arriving. Defendant allowed the police to enter the Residence, where one officer noticed an unspent round on the floor of the Residence. When officers inquired about the gun, Defendant advised them that it was in his bedroom dresser drawer, and that he had unloaded it when he learned that law enforcement would be arriving at the Residence. The officers found the unloaded gun from the bedroom dresser drawer. The gun was not taken from the Residence at that time.
On May 22, 2008, West Valley Police contacted Defendant and inquired about the gun. Defendant indicated that he owned the gun and that it was a gift from his father. There is no evidence to indicate that Defendant had ever used the firearm. However, Defendant was advised that he could not have a gun due to a prior misdemeanor domestic violence conviction. Defendant indicated to police that he would surrender the gun and ammunition. Police arrived at the Residence later that day and Defendant signed a consent to search form and surrendered the gun and ammunition....
The Court finds that Defendant may raise, as an affirmative defense, that the charged offense may not be applied to him because he posed no prospective risk of violence. Such a defense is in keeping with the law stated in the Court's April 17, 2009 Order. The Court also finds that the affirmative defense raised by Defendant does not negate any element of the offense charged. Therefore, while the government must prove every element of the charged offense beyond a reasonable doubt, if Defendant chooses to argue that he posed no prospective risk of violence, Defendant will bear the burden of proving his defense to the jury by a preponderance of the evidence. However, the defense must be supported by sufficient evidence. Therefore, the Court will only instruct the jury on Defendant's defense if the Court finds that, during the course of trial, Defendant has presented sufficient evidence to convince a reasonable jury that he does not pose a prospective risk of violence. In the event that Defendant meets that burden, the Court will instruct the jury regarding Defendant's proposed Second Amendment defense in the following terms:
The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest. You are instructed that 18 U.S.C. § 922(g)(9), the crime for which Defendant is charged, is, as a matter of law, a lawful and constitutional restriction of the Second Amendment rights of those who pose a prospective, or future, risk of violence.
If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the Defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.
Therefore, if you find that the Defendant did not pose a prospective risk of violence, he may not be deprived of his Second Amendment rights, and you must find him not guilty.
However, if you find that the government has proved beyond a reasonable doubt the elements of the charge against him, and that the Defendant has not proved, by a preponderance of the evidence, that he posed no prospective risk of violence, you must find the Defendant guilty.
By the way, all I could find from Pacer about Engstrum's past domestic violence misdemeanor conviction was that it was a "domestic violence assault" that had happened in "Midvale Justice Court in 2007." (The statement of facts above describes only the conduct that led to the discovery of the gun, but it was the 2007 conviction that caused Engstrum to be prosecuted for "possession of firearms by those previously convicted of a domestic violence misdemeanor.") Presumably the jury would be told about the circumstances of this past conviction, as well as about other things, in determining whether Engstrum indeed "pose[d] a prospective risk of violence" at the time of possessing the gun.
Pipe Bombs Unprotected by the Second Amendment:
So holds the U.S. Court of Appeals for the Eleventh Circuit, in United States v. Tagg: "Unlike the handguns in Heller, pipe bombs are not typically possessed by law-abiding citizens for lawful purposes." (There's more, so if you're interested, check out pp. 10-14 of the opinion.)
The general analysis strikes me as right, for reasons I discussed in my article (at least as to the right to bear arms in self-defense, which is all I focused on). But I do think the reasoning in this sentence (from a case quoted in footnote 5) is not quite right:
[W]e cannot conceive of any non-violent or lawful uses for a pipe bomb.
Of course there are non-violent uses for a pipe bomb, uses that would be lawful except for the illegality of pipe bombs. One can have fun blowing them up, quite possibly fun that is relatively safe, much like people have fun with fireworks or with potato guns, or much like people have fun firing guns at pieces of paper, even without any desire to train or to compete. ("[W]e cannot conceive of any ... lawful uses for a pipe bomb" must refer to something more than just the fact that pipe bombs are illegal, or else one could equally well have said it about a total ban on all guns or on handguns, given that possessing them would then no longer be lawful.)
Now it may well be that such entertainment uses of pipe bombs are not socially valuable enough to justify allowing their private possession; that's a plausible argument, and it might even be what the court was driving at. But the court made its argument not by discounting entertainment value, but by pretending that it doesn't exist.
For my criticism of a similar factual error in the First Amendment context (as to the murder manual case, Rice v. Paladin Enterprises), see PDF p. 26 & n.124 of my Crime-Facilitating Speech article. Again, this doesn't necessarily tell us how highly we should value such entertainment. Perhaps it's proper to ban books, weapons, drugs, or whatever else that pose sufficient risk of sufficiently serious harm, if their value seems to consist almost entirely of entertainment. As I said, I do think that pipe bombs are not protected by the Second Amendment or state constitutional right to bear arms provisions (at least by their right to bear arms in self-defense components).
But I don't think that we should find it so hard to "conceive of" people enjoying things that go "Boom!" If some nonviolent use is too frivolous to outweigh the harm that the bad uses cause, say so, but don't assume that such nonviolent uses don't exist.
Interesting Tenth Circuit Concurring Opinion on the Right To Bear Arms and Felons:
The case is U.S. v. McCane, decided yesterday. The majority rejected the defendant's Second Amendment claim by simply saying that the Court "explicitly stated in Heller that 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,'" and citing a recent Fifth Circuit opinion echoing this. But Judge Tymkovich wrote a concurring opinion, which said:
I join in Judge Murphy's cogent opinion, but write separately regarding certain issues raised by our Second Amendment holding ..., for two reasons....
My first point is that the felon dispossession dictum may lack the "longstanding" historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as "longstanding prohibitions on the possession of firearms by felons," is far from clear. To be sure, some sources would support the proposition. But more recent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities. Instead, they assert, the weight of historical evidence suggests felon dispossession laws are creatures of the twentieth — rather than the eighteenth — century. Together these authorities cast doubt on a categorical approach to felon dispossession laws.
This uncertain historical evidence is problematic in light of Heller's Second Amendment interpretation. Central to the Court's holding are a detailed textual analysis and a comprehensive review of the Second Amendment's meaning at the time of its adoption. After conducting this analysis and review, Heller concludes the right "to keep and bear arms" is a corollary to the individual right of self-defense. At the "core" of the Second Amendment right, the Court found, is self-defense in the home.
Knowing the meaning of the Second Amendment right and having identified its individual nature, the issue becomes what limits the government may place on the right.... For example, the broad scope of 18 U.S.C. § 922(g)(1) — which permanently disqualifies all felons from possessing firearms — would conflict with the "core" self-defense right embodied in the Second Amendment. Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons. The validity of § 922(g)(1) was not at issue in Heller, so presumably the lower courts would be left to sort out this restriction — as well as other restrictions — and to wrestle with any complexities in applying Heller. But the issue was not really left to the lower courts....
Heller's felon dispossession dictum is particularly noteworthy considering the scope of the § 922(g)(1) ban. The statute prohibits firearm possession by any person convicted of a felony, irrespective of the nature of the felony, the length of time elapsed since the felony conviction, and the treatment of the felony by the state in which the felon resides. Every individual right has exceptions, of course, and the application of § 922(g) to a violent felon such as Mr. McCane would appear appropriate under any Second Amendment reading. After all, felons lose out on fundamental rights such as voting and serving on juries, and face discrimination that need only survive rational basis review. The question may be less clear, however, where the underlying felony is non-violent, such as financial fraud, perjury, or misleading federal investigators. But § 922(g)(1) encompasses these (and other) non-violent felons as well, permanently restricting their Second Amendment right to self-defense.
This brings me to my second point. The Court's summary treatment of felon dispossession in dictum forecloses the possibility of a more sophisticated interpretation of § 922(g)(1)'s scope. Applying Heller's individual right holding to various regulations would be complicated, and it is of course possible (if not probable) that different courts would articulate different standards. Already a number of commentators have considered and proposed approaches to the existing gun laws and the proper level of constitutional scrutiny. But the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts. In this case, for example, we need not address the standard of review applicable to gun dispossession laws — strict scrutiny, intermediate, rational basis, or something else — or the examination of the governmental interests in light of the standard of review.
Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court's clear direction, this is perhaps how it should be. After all, "our job as a federal appellate court is to follow the Supreme Court's directions, not pick and choose among them as if ordering from a menu." I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.
Note also that Judge Tymkovich's view is especially important in light of U.S. v. Engstrum, where a federal district court in Utah held that a defendant who is prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor has a Second Amendment right to present an affirmative defense "that he posed no prospective risk of violence." (I take it this must mean no prospective risk of violence beyond that posed by the average person.) The jury, under the trial court's approach, would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.
The government has filed a mandamus petition, asking the Tenth Circuit to review this decision; Judge Tymkovich might be called upon to consider this petition, either if it comes to him as a panel member, or if a panel decision in the case leads to a call for en banc review.
Thanks to How Appealing for the pointer.
Felons and the Right To Bear Arms:
The North Carolina Supreme Court has just held, in Britt v. State, that some felons -- whose crimes are long in the past -- do have a constitutional right to bear arms, at least under the North Carolina Constitution:
Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff ompleted his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987. No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and [the 2004] adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him. Plaintiff sought out advice from his local Sheriff following the amendment of N.C.G.S. § 14-415.1 and willingly gave up his weapons when informed that possession would presumably violate the statute. Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....
Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety [the constitutional test that the court was applying under the state constitution -EV]. In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.
[Footnote moved:] Because we hold that application of N.C.G.S. § 14-415.1 to plaintiff is not a reasonable regulation, we need not address plaintiff’s argument that the right to keep and bear arms is a fundamental right entitled to a higher level of scrutiny.
The vote was 5-2, with four of the five Justices joining the majority opinion and the fifth concurring in the judgment without written opinion. Note that since this is an interpretation of the North Carolina Constitution, the decision is final, with no basis for further review by the U.S. Supreme Court (though of course it can be overturned through the North Carolina constitutional amendment process, should there be enough support for that).
Thanks to reader Steve Martin for the pointer.