A Fifth Circuit nonprecedential decision yesterday involved a challenge to the federal limits on 18-to-20-year-olds’ acquisition of handguns, but didn’t need to reach the Second Amendment question:
Defendant-Appellant Cantrell Bledsoe appeals her conviction after pleading guilty to one count of conspiring to make knowing, false, material representations to a federally-licensed gun dealer, in violation of 18 U.S.C. § 371, and § 922(a)(6). For the reasons set forth below, we AFFIRM.Bledsoe admits to paying a third party to purchase her a handgun from a federally-licensed seller. That third party falsely stated that he was the “actual buyer” of the weapon, thus violating § 922(a)(6). Bledsoe further admits to conspiring with this third party to make these false statements, thus violating § 371.
Bledsoe, who was nineteen at the time of the purchase, argues that the proscription in § 922(b)(1) on the sale of handguns by federally-licensed dealers to people under twenty-one violates her Second Amendment individual right to keep and bear arms, as recently recognized in District of Columbia v. Heller, 555
U.S. —-, 128 S. Ct. 2783, 2822 (2008). Bledsoe further argues that the overall age scheme in § 922 violates the equal protection component of the Due Process Clause of the Fifth Amendment.We do not need to reach the substance of Bledsoe’s arguments. Bledsoe is not being charged with violating § 922(b)(1), but of conspiring to make a false material statement in the purchase of a firearm, which she admitted doing. The Supreme Court has stated that “a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that [her] conduct be excused because the statute which [s]he sought to evade is unconstitutional.” Dennis v. United States, 384 U.S. 855, 867, 86 S. Ct. 1840, 1847 (1966). Indeed, even assuming the Government could not constitutionally prohibit Bledsoe from purchasing a firearm, “it cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked.” Bryson v. United States, 396 U.S. 64, 72, 90 S. Ct. 355, 360 (1969). “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them.” Id. (footnote omitted).
Sounds right to me. For my thoughts on the Second Amendment question raised by restrictions on 18-to-20-year-olds, see my UCLA Law Review “Implementing the Right to Keep and Bear Arms for Self-defense” article, PDF pp. 66-71.
SueSimp says:
21 is an ideal age to use as a cut-off. That way, you can get your first legal alcoholic drink and your first legal firearm at the exact same moment. What’s not to love with that combo?
October 21, 2009, 2:11 pmArkady says:
Heh. I recall an interview with a ex-Marine who’d been on Guadalcanal. He was describing how tense it could be on the perimeter of Henderson Field at night and the danger in getting out in front of lines. He said the Marines tended to be a bit trigger-happy, “About what you’d expect,” he said, “from a bunch of armed teenagers.” And he laughed.
October 21, 2009, 3:49 pmFederal Farmer says:
3 years after you’ve died defending your country!
October 21, 2009, 3:49 pmPersonFromPorlock says:
Correct me if I’m wrong, but isn’t an unconstitutional law nonexistent law from the start? It would certainly seem to follow that evading a nonexistant statute is no crime and that the constitutional question ought to be allowed.
As far as age and rights goes, why don’t we just admit the reality and establish classes of citizen? / Sex offenders / children / felons / young adults / adults / persons of wealth / persons of influence / would be about right.
October 21, 2009, 3:56 pmpushmedia1 says:
Long time lurker, first time poster…
How do such unconstitutional laws get reviewed by a court in the first place? If I’m 19, can I just sue the government because I can’t buy a handgun? What if I don’t want a handgun but I just don’t like the government telling me what to do?
October 21, 2009, 4:02 pmOren says:
Yes. It would help if you applied for a license truthfully and were denied on the basis that you are not 21.
This makes no sense. If you weren’t going to buy a handgun then the government didn’t tell you anything.
October 21, 2009, 4:21 pmchuck hannah says:
PersonfromPorlock,
I am not legally educated, much less a lawyer/legal professional. That said, I believe that a person 19 years of age who tried to get a judgement over being prohibited from handgun ownership would be denied because they have not been “damaged” or have any other standing to seek relief, after all, they may still purchase rifles and shotguns under the present law.
It is ridiculous to me that you may serve in the armed services and be trained to use firearms, explosives, etc. at age 18, buy a rifle capable of hitting a man-size target at 500+ yards (using your military training), but may not own a handgun for your personal defense.
October 21, 2009, 4:22 pmOren says:
Evading an unconstitutional statute is no crime. Evading an unconstitutional statute by violating a separate, constitutional, statute, is a crime. That is to say, you cannot violate a constitutional statute (making a false statement in buying a firearm) just because doing so helps you evade an unconstitutional one.
This case is the wrong one in which to throw down on §922(a)(6).
October 21, 2009, 4:24 pmFederal Farmer says:
In Heller the fact that residents could buy shotguns and rifles was not allowed as a justification for banning handguns. I don’t see why the same logic could not be applied with respect to 18-20yr olds.
Establishing standing might be difficult. You’d have to attempt to purchase and be denied due to your age. I’m not sure how that could be done since no retailer is going to risk their license to help you establish your standing.
October 21, 2009, 4:28 pmpushmedia1 says:
Well, I was thinking the harm was in reducing my choice set. I like having more choices.
October 21, 2009, 4:39 pmNickM says:
You don’t actually have to attempt to purchase to sue for declaratory relief. You allege in your complaint that no retailer would sell one to you for fear of violating the law. You’re not required to go through with a futile act.
Nick
October 21, 2009, 4:43 pmOren says:
This is a speculative harm that is not allowed in Federal standing. Either you want to buy a gun and can’t, or you don’t want to buy a gun and it doesn’t not matter whether you can or cannot.
October 21, 2009, 4:57 pmCarLitGuy says:
One might consider, to appropriately challenge this particular prohibition, finding a young man or woman who has served briefly in the Armed Services that looks old for their age, and who seeks a personal handgun for home protection or sporting reasons. I imagine, given the state of the economy, that in many establishments they would be well along in their attempt to purchase the handgun before their ID was requested for a background (Brady) check. Thus showing the requisite attempt before the sale was refused on account of age…
October 21, 2009, 5:04 pmEric says:
Lets not forget the real purpose of the 2nd amendment. Its for self defense from an oppressive regime. Of course its a violation of the 2nd amendment. And of course the oppressive regime will continue to violate it until we the people decide otherwise.
October 21, 2009, 5:04 pmKharn says:
The rule is that you cannot buy a handgun from a dealer if you are 18-20, not that you cannot buy a handgun. The same rule applies for silencers, machine guns, etc, find a willing private seller in your state and comply with all applicable laws and you will get your item.
But, in the states where all such sales must go through an FFL (CA, MD, etc), they could find themselves open for a bit of a law suit.
October 21, 2009, 5:24 pmMatthew Carberry says:
Further, under different state’s laws you can legally possess even younger. For instance, in Alaska a person 16 years of age (age of possession without parental permission) can legally carry a loaded handgun openly in public without a license.
They can’t buy the handgun until 18 (private party sale) or 21 (Federally licensed dealer) but can receive it as a gift.
I think the rather arbitrary purchase age of 21 for a handgun but 18 for a more lethal (important if “safety” and crime are truly the rationale for the distinction) rifle or shotgun is ripe for challenge on Constitutional grounds.
October 21, 2009, 5:43 pmShelbyC says:
The statute requires the statement to be materially false. Was her statement materially false if the law barring sale to 19-year olds was unconstitutional?
October 21, 2009, 5:58 pmbbbeard says:
Oren:
I’m sorry, but how long would it take for the courts to respond to your complaint? I suspect that by the time the courts resolved the question you would already be long past 21. Which means that the court system is NOT in fact capable of resolving this particular injustice.
Can I sue on behalf of my son, who is now 14, on the expectation that by the time the issue got to the Supreme Court, he would be 18?
BBB
October 21, 2009, 6:01 pmfwb says:
But then we reach the fact that the federal government has no authority to make laws for the punishment of such violations. The proof lies in the delegated powers which those with eyes to see can discern.
Tiocfaidh ar la!
October 21, 2009, 6:12 pmJane Roe says:
BBB –
Sometimes courts find cases moot because of changed circumstances and sometimes they don’t. You may have heard of my case, Roe v. Wade, which was decided long after I could have had an abortion. Such cases are called capable of repetition yet evading review. On the other hand, when a University of Washington law student brought a reverse affirmative action claim, the court denied review after the student had graduated.
October 21, 2009, 6:28 pmPeople can expound on the differences, and smart lawyers can make gun possession by 18-21 year olds sound like either of these, so you pays your money and takes your chances.
ShelbyC says:
IIRC, the capable of repitition part means that the same party may be in the same situation again, correct? So it was capable of repition because you could have become pregnant again, not because some other party could have become pregnant.
October 21, 2009, 6:33 pmzippypinhead says:
Absolutely right, although the useless challenge was actually to §922(b(1), which prohibits FFLs from selling handguns to persons under 21 years old. Here, the defendant in a garden variety straw-purchaser situation with a falsified Form 4473 tried to argue that because she was ALSO underage per an allegedly unconstitutional §922(b)(1), this somehow excused her unambiguous §922(a)(6) and §371 violations. World-class dumb legal argument.
Long-time Second Amendment litigator Don Kates just wrote an editorial in a firearms enthusiasts’ publication basically making the point that crooks’ dumb Second Amendment challenges to firearms laws are not only doomed to failure, they may very well do a lot of harm to the cause of advancing Second Amendment rights in general. Although he was specifically concerned about defendants’ premature challenges to state “assault weapons” bans making some very bad legal precedent as judges go into contortions to not rule in the crooks’ favor, the same basic point could apply here.
Anybody who wants to successfully challenge §922(b)(1) after Heller needs to find a squeaky-clean plaintiff who honestly fills out his own 4473 – including his real date of birth – and is denied by NICS solely because of his age. A criminal defendant looking for a loophole won’t work. Probably the best plaintiff for that sort of civil suit would be someone like a 20-year old decorated active-duty Marine Lance Corporal who carried an M-9 sidearm when he was deployed to Iraq, and is later denied when he tries to purchase a Beretta 92 (civilian version of the same handgun) while home on leave.
It wasn’t an accident that Alan Gura’s lead plaintiff in Heller was an upstanding citizen who was employed as an armed security guard at a Federal building in D.C.
October 21, 2009, 6:53 pmBrett Bellmore says:
Not only can this be thought, a great many people think it. It’s just that they tend not to work for the government.
October 21, 2009, 7:58 pmShelbyC says:
Well, 9 years ago they ran the white house.
October 21, 2009, 8:15 pmChrisTS says:
I think the just and rational move is to raise the age for military service [volunteer or draft].
I’m not a big gun-rights fan, but I do think it is unjustifiable for us to think that 18 year olds are sufficiently mature/autonomous to serve/decide to serve in the military but not to have guns when they are on leave or have returned home.
At some point, we need to decide what counts as the age of maturity for all questions. At the very least, if we think differential ages for different purposes is reasonable, we need to articulate the rationale for the differential determinations.
Personally, I would link the voting, gun ownership, and military service ages. No one who is not eligible to vote should serve* in the military. No one who is eligible to serve in the military should be denied the same gun-rights as older citizens.
I suspect that the real problem is that we (a) want young people to fight our wars and (b) do not trust them with weapons at home. That is indefensible.
*I am thinking of both voluntary and non-voluntary service. If they are not sufficiently autonomous and responsible to have guns as citizens, then they are not sufficiently autonomous and responsible to go to war, willingly or not.
October 21, 2009, 8:27 pmChrisTS says:
I am surprised to find myself agreeing, in some way, with Brett.
It’s rather strange to claim both that A has no right to ask B a question and that B is obligated to answer the question truthfully.
If the assassin at the door has no right to ask me if I know where my neighbor is, I do not think I have an obligation to answer him truthfully [Kantian niceties notwithstanding].
October 21, 2009, 8:34 pmtherut says:
I take offense. BC ( before Clinton) the Second amendment was not limited to 21 years of age. If 18 is the age of majority then your rights under the BOR should exist. I had mine at age 18. Why should those born befor the time of freedom in the 1990′s now not have those rights. I resent it very much. Why do liberals not want to expand rights espically those written in the BOR??? I know the answer but it is a poor one.
October 21, 2009, 8:52 pmcolderwater says:
IANAL, but does the militia act of 1792 have any bearing on the subject?
“.. That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act… ”
Lest we forget, the militia was no academic exercise but a reality. Did not Washington himself call up the militia during the whiskey rebellion?
Perhaps a good test case could be made with any 18 year old white male …. in 1792 they were thought mature enough to keep and bear milita type arms, which would include the handguns of the day.
CW
October 21, 2009, 9:10 pmOren says:
No, the statute requires the statement to be true and then denies the requisite permission based on the response. A well-situated 19YRO (see zippypinhead’s post) could then sue based on the fact that she truthfully filled out the form, qualifies in all other respects but is 19/20.
While I don’t agree with that sentiment, it is quite defensible! An 18 year old subject to the strict discipline of the military command structure, who has been educated in how to control himself under emotional pressure and sworn to defend the United States is not similarly situated to an 18 year old on the streets with no supervision or discipline.
That reasoning might be faulty, or it might not prove that the latter ought not to have a gun, but it’s not absurd or entirely without some logic.
October 21, 2009, 9:43 pmrpt says:
“Tiocfaidh ar la!”
Is this a slogan of some sort? What does it mean?
October 21, 2009, 10:25 pmSammy Finkelman says:
Bryson v. United States, 396 U.S. 64, 72, 90 S. Ct. 355, 360 (1969) as quoted now by the Fifth Circuit Court of Appeals
“Brett Bellmore: Not only can this be thought, a great many people think it. It’s just that they tend not to work for the government.
Shelby C: Well, 9 years ago they ran the white house.
=====================================
Not true.
First, President Clinton had actually signed a bill into law that made such questions required or more likely.
Second, they offered Clinton this line of defense but he
would not take it.
His lawyers specifically told the House Judiciary Committee that they did not object to the right to ask questions and they did not say it should not be the law. (Since Clinton had signed such a law he couldn’t really do that)
BY the way, later on, after the impeachment case was over, if I remember right, they got the judge to reverse herself and regard the questioning as irrelevant. They also settled the case, so that it could not be said that he gained from his perjury.
I see here that the Bryson opinion said there is a means of challenging the right to ask questions. That is probably not really true in a siutation such as filling out a form. That’s more true in testimony or subpoena type situations.
October 21, 2009, 10:53 pmMatthew Carberry says:
Just cut and paste it into google.
“Our day will come”
October 21, 2009, 11:24 pmrpt says:
I remember that one, a big hit for Ruby and the Romantics.
October 21, 2009, 11:42 pmrpt says:
And a very interesting Wikipedia entry. Very un-conservative.
October 21, 2009, 11:55 pmGene Madison says:
Wait, now is lying against the law? If so, shouldn’t there be more politicians in jail?
I guess the question becomes, is it illegal for her to obtain a firearm, and if so, is the only way a person like herself able to obtain a firearm, to lie? And how long would it have taken to go about such a thing legally, rather than lying about it, and how much would it have cost her to obtain justice if she took the ‘high road’?
To me, it isn’t the age that is a concern, it’s those people who use the handgun for purposes other than self defense. That should be the only true crime, and one would think she’d merely get a slap on the wrists for being naughty, not being criminal.
October 22, 2009, 1:48 amreadery says:
U.S. v. Miller established a connection between the 2nd Amendment and service (or at least servicability) in a militia. Heller weakened the connection but I don’t see it wholly abolishing it.
Miller held that the only arms the 2nd Amendment protects are those suitable for use in a militia. If the type of arms has to be one suitable for militia use, why shouldn’t the individuals protected be ones suitable for militia use? It would seem the state would have some leeway to determine, within reason, when service in the militia begins. Many states define the militia by law or constitution, including a minimum age.
What’s the basis for a claim that there’s a constitutional right to do anything at 18? The only right specifically given 18-year-olds is voting in a federal election. The constitution doesn’t mention a minimum age even for state elections, and it does mention a higer minimum age for certain federal offices (President, Senator) which would tend to undercut a claim that there is some sort of general right that sets in at 18.
Having 18 as an age of majority is only a few decades old; before the 1960s it was generally 18. States have no obligation to set a single age for everything. They can unbundle adulthood if they want and set different minimum ages for different activities.
October 22, 2009, 3:56 amreadery says:
Sorry, before the 1960s it was generally 21.
October 22, 2009, 3:57 amPersonFromPorlock says:
Readery, in a legal world capable of shame, lawyers and jurists would bite their tongues off before citing Miller. It’s that bad.
October 22, 2009, 6:24 amtalon7351 says:
Might be an idea to try with a 17 year old who has been denied the ability to purchase a firearm, be it a rifle or a handgun or both.
Shortly after I turned 17 I joinded the Army National Guard. I went to basic training at Fort Benning just a few days after I signed and swore my oath.
My reasoning for trying this with a 17 year old especially one who is in the National Guard, is the Militia act of 1791 classifies the age of 17,( I dont remember at this time about age in the amended Milita act) so in essense, the age restrictions of the GCA of 1968 is unconstitutional as it deprives the US from having the full militia possessing arms.
Just a thought I decided to throw out there.
October 22, 2009, 6:42 amtalon7351 says:
As well as being a one pony horse race…
October 22, 2009, 6:44 amKharn says:
The age required to purchase a handgun from a dealer has been 21 since 1968. Before then, anyone tall enough to put the cash on the display case could walk out with a pistol.
October 22, 2009, 7:55 amFederal Farmer says:
I think you are confused. People have rights. Some rights are restricted until a certain age. People don’t ‘gain’ rights as they age, the restrictions on their rights are removed as they age.
October 22, 2009, 9:39 amPaladin says:
You all are failing to recognize that the majority of Judges in our court system (it’s NOT a justice system because justice, truth and what’s right are not considerations) are corrupt. They know better than “we the people” what is good for us. They affirm that many BoR amendments are “incorporated against the states.” Notably, the first which contains the words, “Congress shall make no law….” but the amendment that states, “shall NOT be infringed.” doesn’t!
I have nothing but CONTEMPT for our court system and the fact that these tyrants have the illegitimate power to punish someone for “contempt of court” makes me want to take up arms against them. How can any American with a sound knowledge of the principles of freedom upon which our country was founded have anything but contempt for the courts – and the Congress – and the various Administrations -and government in general?
October 22, 2009, 11:06 amPaladin says:
Federal Farmer: Please advise where I can find words to the effect of, “citizens at or below the age of _?__ are NOT entitled to civil rights, privileges or immunities set forth within this Constitution.” Or, “Upon attaining the age of __?__, all citizens will be entitled to all privileges and immunities…” Or, ?????????????????
Just curious.
October 22, 2009, 11:09 amPaladin says:
readery: I suggest you actually read the DC v. Parker and DC v. Heller court opinions and the historical references therein. Miller did NOT establish that the 2nd Amendment is subject to Militia service. It was INCORRECTLY and UNCONSTITUTIONALLY interpreted by corrupt judges to insinuate that wrong conclusion. Neither Miller nor his attorney even showed up to the SCOTUS hearing. Miller had died and his attorney was an incompetent and irresponsible a#@hat. The court stated, “In the absence of evidence presented to the contrary …” or words to that effect (look it up, my quote is close). What would’ve been outcome had the defendant or his attorney actually showed up and argued their case? This is one example of the danger of the court’s “precedence” rules etc. If the precedent is WRONG, it remains WRONG for decades until some case comes up that allows the “reopening”, so to speak, of consideration of the particular issue.
October 22, 2009, 11:17 amFederal Farmer says:
Hey, I’m just livin’ in the real world here, not a fantasy world where the Constitution is the law of the land.
October 22, 2009, 11:19 amFederal Farmer says:
SCOTUS needs to rule on a case even if the respondent fails to appear. What should happen to McDonald v Chicago if Chicago simply ignores the case and fails to appear? Can they win by forfeiting?
I agree Miller was repeatedly mis-cited, but you can’t argue that the Court should not have ruled in that case just because Miller failed to show up.
October 22, 2009, 11:22 amPaladin says:
Maybe in those type cases, they should issue a “Nonprecedential” ruling???
By the way, I agree with your statement about living in reality where the Constitution is NOT applied as the supreme law of the land. That’s a big part of the problem!
October 22, 2009, 11:43 amPaladin says:
I’m sorry but this is a subject very dear to me. Regarding readery’s statement that Miller established that the arms protected by the 2nd Amendment are those suitable for militia (military) use (which, I think, is a correct statement from the opionion as I remember. Close anyway.) Then WHY can’t I acquire and possess a fully automatic machinegun. Also, what about the Winchester Trench, short barreled, shotgun used in WW1 and subsequent. There’s another point in Miller I contest. If the trench gun was suitable for warfare use by the military why was the short barreled shotgun in Miller determined to NOT be protected? It’s all a crock of legal BS! Just like the so-called “Incorporation Doctrine.” The original text of the US Constitution did, in fact, “incorporate” the BoRs against the states. I can elaborate if anyone wants.
Sorry again for being so verbose but this is a subject with which I am virtually obsessed (as you can probably tell.)
But I love America and I love Freedom and I’m more than willing to die to preserve them both!
October 22, 2009, 12:07 pmepeeist says:
Obviously it’s “correct” but I have a problem with SCOTUS, “a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that [her] conduct be excused because the statute which [s]he sought to evade is unconstitutional.”
So that means if e.g. a state passed a blatantly unconstitutional law like, “only married white Christian males aged 21 years who are registered Republicans and submit a declaration attesting to such may purchase or possess firearms” that any under-21, or female, or non-Christian, or black person, or whatever, who obtained a firearm through fraud would be guilty and could not assert the unconstitutionality of the statute?!
Idiocy (caveat, I haven’t looked at the case to see the quote in context, it may be less objectionable if limited/qualified).
That is, I can understand the reasons for wanting people to challenge laws before violating them, but I see not enforcing unconstitutional laws as a more important principle; if someone breaks the law and is “lucky” that it’s unconstitutional, they should be able to benefit from that.
October 22, 2009, 12:08 pmtheaton says:
Paladin, you can acquire and posses a fully automatic firearm. First you need to find one for sale, the last M-16 I saw was around $13000. This is because now new fully automatic firearms are allowed for sale to civillians since ’86. Then you must pay a $200 dollar tax and pass a extensive background check. It’s expensive, time consuming (about a year) but can be done. All anti-firearms laws are Unconstitutional and must be repealed. It’s too bad that so few read the Constitution of the United States and none have defended it for many, many years.
October 22, 2009, 5:43 pmOren says:
Reading comprehension is key.
(1) Of course they could assert the unconstitutionality of the statute.
(2) They could not assert that the unconstitutionality of the statute as a defense to the violation of a wholly separate statute making it a crime to lie when obtaining a firearm.
Absolutely. They just have to luck out that the specific law they broke is the one declared unconstitutional, not one that’s merely tangentially related to their specific crime.
I don’t hear anyone saying that we have a constitutional right to commit fraud, although I suppose it’s time for comic relief…
October 23, 2009, 12:01 amreadery says:
Ever read Roe v. Wade?
The exact idea you espouse is the exact idea they rejected.
October 23, 2009, 12:39 amreadery says:
That is, Roe v. Wade held that when rights accrue at a particular point in human development, there is no personal interest in those rights prior to the development point being reached.
October 23, 2009, 12:45 amBambiB says:
Federal law is obscene.
In what sane universe may an 18-year-old be compelled to take up arms, travel to a foreign land and kill or be killed at the behest of a bunch of fat, old, drunken lawyers (most of whom have never had the same burden laid upon them), and yet be denied the rights of full citizenship?
Old enough to have children, marry and divorce, to contract, to sue or be sued, to be tried as an adult – but not old enough to own a handgun or buy a beer?
The law is clearly unconstitutional to any rational person. Were I 18-20, I would be incensed. Do those under 20 get a full exemption from Federal Taxes? If not, is this not the very issue we cited the last time we went to war against an oppressive government (taxation without representation)?
18. 19. 20. 21. I don’t care what age one chooses as the age of “majority”. But pick it and let it be the same for FULL citizenship.
But I repeat myself: Federal law is obscene. The federal government is obscene. The sooner it falls down, the better.
October 23, 2009, 1:05 amepeeist says:
Re Oren: “…(2) They could not assert that the unconstitutionality of the statute as a defense to the violation of a wholly separate statute making it a crime to lie when obtaining a firearm. ”
You’re right that I was less-than-clear in my own post, but I was aware of the difference. Legally correct does not make something right, I still think it’s wrong in principle.
If someone applied for a government job and part of the application said “by applying I certify that I am not Jewish and am subject to penalties under state law if I certify falsely” or something like that, and someone Jewish applies for the job concealing that, under the law they have no defence that they lied about something because the law requiring a truthful answer was grossly unconstitutional. That’s what I have a problem with. Just as I had a problem with Martha Stewart being convicted of lying to investigators about something that wasn’t a crime, or criminal sentences being increased in severity based on facts found by the judge but which the jury found the person not guilty of, etc. despite those things being legally correct.
October 23, 2009, 9:48 amJohn says:
The problem with the arguement as you pose it, is that is NOT the arguement made. No one said that you had to answer truthfully, but rather that the lack of a right to ask the question did not allow one to answer that question fraudulently. Not answering fraudulenty is not the same as answering truthfully.
October 23, 2009, 11:59 amJohn says:
Did you ever read Roe? No one gains any rights in Roe (most especially the unborn child, which NEVER has rights). And the mother’s rights are the same throught the pregnancy as well. Only the states interest in the unborn child coming to term change (the states interest grows as the child develops).
October 23, 2009, 12:03 pmShelbyC says:
They might have a defense, because the law only covers material misstatements.
October 23, 2009, 12:23 pmC. Mark Fletcher says:
Actually a comment on the cited EV article in the UCLA Law Review, specifically concerned with the arguments for why bans on “assault weapons” and machine guns might be constitutional. Quotes are from that article.
“The class of assault weapons is indeed not ‘typical’, at least in the sense of common use.”
This is supported by a 1989 study. I suspect it might be harder to make the same argument using current data.
“Assault weapons are no more useful for self-defense than are many other handguns, rifles and shotguns…”
This is clearly not true. A semi-automatic rifle is very superior to a handgun due to its accuracy and stopping power, and to a shotgun because of its lower recoil. Then, distinguishing an “assault weapon” from other semi-automatic rifles, a pistol grip is a substantial improvement in the ergonomics of the weapon that makes it significantly more useful for self-defense at short range against moving, dangerous targets. An adjustable stock also provides an ergonomic benefit if the rifle is to be used by people of differing stature. A barrel shroud is important for ease of handling the weapon after multiple shots have been fired and the barrel is hot. Thus assault weapons are significantly superior to the alternatives for self defense.
“Machine guns are no more useful for self-defense than are non-automatic guns …”
There is a substantial exception to this, in the form of a fully automatic weapon that fires a 3 round burst only. Firing multiple shots to stop an aggressor is standard practise. The automatic 3 round burst gives a significant improvement in ease of use for self defense, which is why it is often found in “Personal Defense Weapons” designed for use by military personal with lower levels of weapons training. Thus we can make a good case for the superiority of a 3 round burst weapon for self defense use. I do agree however that there is no benefit provided by full auto capability beyond 3 (or conceivably 5) rounds.
October 23, 2009, 7:18 pmC. Mark Fletcher says:
Further to my previous comment…
In discussing assault weapons we get down to the details of eaxctly what is considered an assault weapon, which varies between the different implementations of the law. For example, a pistol grip is allowed by most of the laws, except CA, while a pistol grip and an adjustable stock is prohibited by most or all.
I can make a similar argument to those given in my previous comment regarding the contention that “Bans on silencers … don’t materially burden self-defense.” A silencer makes a weapon significantly more useful for self-defense by protecting the operator from the intense noise and flash of firing it, particularly indoors. If you have fired a weapon indoors without hearing protection, let alone in the dark and under stress, I think you will agree that lack of a silencer is a material burden on self defense.
October 23, 2009, 7:32 pmTim says:
You have to establish that you’ve been harmed before you’d have standing to challenge any statute.
That is why all the other litigants in D.C. v. Heller were denied standing–none of them tried to register their handguns besides Dick Heller. In fact, none of them owned any handguns–because the Gun Control Act of 1968 made it impossible for them to lawfully purchase one since there supposedly were no FFLs in the District of Columbia.
October 23, 2009, 11:31 pmTim says:
Not sure if it’s been pointed out before, but Roe said nothing of the sort. Roe laid out a trimester scheme explaining when the mother’s right to choose could be regulated. None of this was based on the fetus’ rights.
The trimester scheme has since been overruled, but either way, your suggestion that rights are gained at some point prior to birth is false. If the SCOTUS abortion decisions are presumed true, the “unborn” have no rights at all.
October 23, 2009, 11:39 pmOren says:
I don’t think the draft and this restriction were ever both in force at the same time — the draft end in the late 60s just as this law was passed.
Correct. They should sue the government on the grounds that the requirement is unconstitutional, not on the grounds that the question about the requirement is unconstitutional.
She had the option to decline to answer any questions in the first instance.
Fixed since 2000.
October 24, 2009, 1:03 pmOren says:
And the misstatement is clearly material to a valid law. It’s constitutional canon that a law, no matter how “obviously” flawed, is presumed valid until ruled otherwise.
Reread Zippy’s post on this — it’s quite insightful. When you challenge the constitutionality of a law (even an absurdly flawed one like that at issue in Heller), it’s incumbent on the plaintiff to line up all the non-essential issues. You have to tee up the issue very cleanly so the higher court can rule on the ‘pure’ constitutional issue. The slow and patient work of Gura et al is invaluable in this respect whereas bozos like the defendant here do little to progress the state of our RKBA.
October 24, 2009, 1:08 pm