A puzzle for constitutional law buffs: I just read a recent case which explored the interaction between the Second Amendment and part of the Sixth Amendment. What is that interaction?
I realize, of course, that one can dream up all sorts of theories for how any two constitutional provisions might interact — but I’m looking for the one that the court actually discussed, and it also seems to me that this is indeed the most plausible such interaction, given the current interpretation of the two amendments.
UPDATE: Commenter tomhynes wins.
Off Kilter says:
Might it relate to the requirement to give up your second amendment rights on mere indictment as a condition for release? IANAL, so this is just a guess.
March 12, 2010, 7:41 pmEugene Volokh says:
Off Kilter: I can see a Fifth Amendment Due Process Clause argument in what you’re saying, or maybe even an attenuated Eighth Amendment Excessive Bail Clause argument (though I’d be skeptical about that). But I don’t quite see a Sixth Amendment argument. And in any case, that’s not what the court was discussing.
March 12, 2010, 7:51 pmseneca says:
It has to be the impartial jury requirement, especially applicable in a case where the defendant is charged with violating a gun control ordinance or has pleaded the affirmative defense of self-defense.
March 12, 2010, 7:57 pmShelbyC says:
Does it have anything to do with the rights and duties of citizenship? The right to bear arms and the duty to serve in the milita, and the right to a jury trial and the duty to serve on a jury?
Or checks on government power by direct citizen involvement? Both juries and militias serve as checks on govt power.
March 12, 2010, 7:57 pmJohn says:
Maybe a defendant could raise fair cross-section issues if potential jurors are excluded based on past firearms offenses or other past history with firearms.
March 12, 2010, 8:07 pmJohn says:
Maybe ineffective assistance of counsel claims based on failures to raise Second Amendment defenses.
March 12, 2010, 8:11 pmEugene Volokh says:
Seneca, John: I’m not sure how the Second Amendment would interact with the impartial jury requirement. If the claim is that some jurors are so biased against gun owners, for instance, that they can’t be impartial, then that would apply whether or not gun ownership is a constitutional right. Likewise for the fair cross-section requirement, which I think either would or would not succeed regardless of whether gun ownership is a constitutional right.
ShelbyC: The duty to serve on a jury is not a Sixth Amendment requirement.
March 12, 2010, 8:13 pmDuffy Pratt says:
The militia and the impartial jury are both assumed to be creatures of “the State.”
March 12, 2010, 8:20 pmtomhynes says:
How about taking away gun rights on domestic violence charges minor enough so the defendant does not have a right to a jury trial?
March 12, 2010, 8:29 pmTim R. says:
Whether people bearing arms are allowed to sit in the gallery at a trial? This could implicate both the 2nd Amendment rights of the members of the gallery and the 6th Amendment “public trial” rights of the accused.
March 12, 2010, 8:41 pmEugene Volokh says:
Tom Hynes gets it! The case is United States v. Jardee, and it is indeed about whether the historical Jury Trial Cause exception for “petty offenses” should per se not apply when the offense leads to a lifetime ban on gun possession.
March 12, 2010, 8:49 pmcboldt says:
Disappointing, but unsurprising decision. In comparing a 15 year deprivation of a driving license with a lifetime deprivation of keeping or bearing arms, the court concludes that the driving license deprivation is a penalty enhancement that requires a jury trial, but a lifetime prohibition on keeping or bearing arms “is simply a collateral consequence and does not affect whether the offenses are ‘serious’ for purposes of the Sixth Amendment.”
March 12, 2010, 9:16 pmBrett Bellmore says:
Man, that’s crazy, deciding losing a basic civil liberty for life wasn’t ‘serious’ just because Congress was willing to take it away from people who hadn’t done anything all that bad. And doing so AFTER the Heller decision, so they couldn’t even pretend it wasn’t a basic civil liberty.
But I suppose it indeed isn’t surprising, considering that we never would have gotten to the point of needing Heller if the lower courts had any respect for the right in question. Hopefully it will be appealed and reversed.
March 12, 2010, 9:26 pmBrett Bellmore says:
I mean, the Lautenberg amendment has GOT to go before the Supreme court, now that they’re admitting it’s a civil liberty, right?
March 12, 2010, 9:34 pmrequired says:
And there isn’t even a right to own a driver’s license.
March 12, 2010, 10:12 pmDave N. says:
I think the Lautenberg Amendment is counterproductive and I despise it as a prosecutor. State judges (and even some jurors) know the consequences and don’t want to convict even with proof beyond a reasonable doubt.
I am adamantly opposed to domestic violence. But unless a gun is involved in the violence, I am equally opposed to the lifetime ban the Lautenberg Amendment imposes.
March 12, 2010, 11:19 pmPersonFromPorlock says:
Why? Hasn’t the Court long since proven it can believe four impossible things before breakfast?
March 13, 2010, 12:04 amMike McDougal says:
I was really hoping this would involve the Confrontation Clause.
March 13, 2010, 2:34 amMike McDougal says:
That is sheer idiocy. Every permanent deprivation of fundamental constitutional rights is serious, regardless of the statutory mechanism that causes the loss.
March 13, 2010, 2:53 amcboldt says:
– Hopefully it will be appealed and reversed. –
March 13, 2010, 7:11 amI think the Circuit Court has means to avoid the issue in this case. This defendant is a convicted felon, and the Circuit can conclude that his RKBA wasn’t at risk, and therefore not part of the penalty.
I wonder how many years of suspended driving license is required in order get a jury trial on a petty offense. In the 8th Circuit (Richter v. Fairbanks), 15 years is enough; “A full suspension for 45 days and a partial suspension for another 45 days was not severe enough …”
cboldt says:
– I mean, the Lautenberg amendment has GOT to go before the Supreme court, now that they’re admitting it’s a civil liberty, right? –
March 13, 2010, 7:18 amI do wonder what caused them to take the Heller and McDonald cases. The country went decades with states and municipalities passing prohibitions on RKBA; bans upheld by federal district and circuit courts (“See Presser,” they say); petitions for cert denied across the board. There is NO split among the circuits. This is settled law.
My narrow point being that I think the Lautenberg amendment is safe in the hands of the judiciary. If the people want to get that [IMO, unconstitutional] law off the books, the people will have to prevail via Congress.
Brett Bellmore says:
My narrow point is that it’s the Court’s job to strike down unconstitutional laws. What’s the point in having a constitution, if it’s not going to be enforced?
March 13, 2010, 7:43 amBrett Bellmore says:
Anyway, it’s a better question what caused the Court to refuse every last 2nd amendment case for 70 years. It’s not as though it was for lack of people trying to get cases heard. The Court just spent the better part of a century automatically rejecting any cased that raised the 2nd amendment as an issue. That lack of a split didn’t come about instantly, you know.
I think they were content to let the lower courts take the blame for killing off an amendment they didn’t like. The Court finally took a 2nd amendment case, not because a good case finally appeared, but only because there were, at last, 5 justices who didn’t find the 2nd amendment offensive to the point of wanting it razor bladed out of the Constitution.
March 13, 2010, 7:53 ammarkm says:
Brett, that’s probably true. But also, the Miller decision clearly implied that there was an individual right to keep and bear any arms commonly issued to ordinary infantrymen – and within a couple of years, that included submachine guns, and by 1947 full-auto assault rifles. In other words, following the Miller precedent would invalidate the NFA as far as machine guns go. And that does seem to be a bit more firepower than your drooling idiot (but nonfelonious) neighbor needs…
March 13, 2010, 8:33 amChrisIowa says:
Four of them can.
March 13, 2010, 9:11 amcboldt says:
– following the Miller precedent would invalidate the NFA as far as machine guns go. And that does seem to be a bit more firepower than your drooling idiot (but nonfelonious) neighbor needs… –
March 13, 2010, 9:26 amMy drooling idiot (but nonfelonious) neighbor doesn’t need to vote either. Nor does he or she need a bee gun, small frame .38 caliber revolver, or single action semiautomatic 20 gauge shotgun, or a pointy/sharp knife, or a baseball bat.
Anyway, as far as the Supreme Court asserts, it -IS- following the Miller precedent. The one where (Miller) SCOTUS upheld the NFA against the challenge of a person convicted of violating it. The Circuit Court quite readily adopt the revised read of Miller, just as they used rank intellectual dishonesty in application of Cruickshank and Presser.
Non-lawyers have this mistaken notion that “the law” is about honesty, etc., when “the law” is whatever the superior force of power says it is. Usually (and fortunately) those two notions intersect. But where they diverge, and this is certainly the case in the RKBA, the government (including the Courts) will practice outcome-based and dishonest justification for obtaining superiority over the public.
cboldt says:
– What’s the point in having a constitution, if it’s not going to be enforced? –
March 13, 2010, 9:28 amTo facilitate preservation of an illusion that keeps the public from becoming restive.
Brett Bellmore says:
Except, of course, he wasn’t convicted. Even in the best of times, “legal fictions” leave me uneasy, but this re-writing of history was particularly egregious.
March 13, 2010, 9:53 amcboldt says:
– [Heller] re-writing of history [Miller] was particularly egregious –
March 13, 2010, 10:22 amJust more obvious. But misconstruing precedent is what makes “the law” such a flexible weapon. The popular conception of some cases is opposite what those cases stand for. Marbury is not about the power of the Court to make law, it is about a jurisdictional limit on the Court and conflict of law as between the constitution and legislation. Presser is not about the 2nd amendment, it is about the use of police power to regulate parades.
Among many (maybe even most) RKBA advocates, Miller and Presser are seen as directly against the RKBA. In short, lying about precedent works. Perception is stronger than reality, when the object to be controlled is the reader’s mind.
Drew says:
Footnote 1 of the case Eugene cites, United States v. Jardee, misquotes the Constitution.
March 13, 2010, 10:45 amHadur says:
I was hoping this would be about the right of jurors to bring guns with them to court.
March 13, 2010, 11:02 amMike Schilling says:
Any time now, the Roberts court will allow corporations to create private armies as a consequence of their Second Amendment rights and outlaw IRS audits because of the Sixth.
March 13, 2010, 11:14 amSteve2 says:
As the opinion says, that “historical” exception is an exception “Despite the breadth of this language”… so the courts are openly and admittedly violating the Constitution by implementing it. If there were supposed to be an exception, the text would say so. Rights that aren’t named can still exist thanks to the 9th, but there’s no 9th Amendment for limits on rights, exceptions on rights, or anything else.
March 13, 2010, 11:26 amAnother Kevin says:
So, a jurisdiction that wanted to have a near-blanket ban on gun possession could make motor vehicle violations (or even parking violations, which in many jurisdictions have no right of judicial or even administrative review) trigger a gun possession ban. Nice.
March 13, 2010, 12:43 pmSarcastro's Little Brother says:
And the Obama Administration is going to abolish the Second Amendment by Excecutive Order. Then he’s going to arm ACORN, just like the SA. Martial law will be next.
March 13, 2010, 1:14 pmDjDiverDan says:
Although not directly addressed in the opinion, the case also raises another constitutional right issue — specifically the right to an Article III tribunal. Since the decision was made by a Magistrate, which is only an adjunct to the District Judge, the Defendant has an absolute right to a de novo determination of this issue by the District Court. See United States v. Radditz (holding that the Article III Court must retain “all of the essential attributes of the judicial power”). Unless, of course, the Defendant knowingly and voluntarily waived his right to that Article III determination by consenting to trial before the Magistrate.
March 13, 2010, 1:39 pmBrett Bellmore says:
Exactly. That “all” doesn’t exactly leave a lot of wiggle room. Deciding that “all” doesn’t mean “all” was the original sin here.
March 13, 2010, 1:49 pmSometime Juror says:
Something they can do in WA state courts. And given the friends of some defendants, it seems like a good idea at times.
March 13, 2010, 3:13 pmMike McDougal says:
There’s a pragmatics clause in the penumbras.
March 13, 2010, 4:26 pmJohn Skookum says:
Sounds good to me.
March 13, 2010, 6:04 pmJohn Skookum says:
And the Obama Administration is going to abolish the Second Amendment by Excecutive Order. Then he’s going to arm ACORN, just like the SA. Martial law will be next.
It is one of many black marks against our state-fellating lapdog media that they did not explore (or even diligently report) Obama’s June 2008 speech, in which he advocated something called a “Civilian National Security Force”, and explicitly stated his intention that it be equal in power and funding to the rest of the US military establishment.
When I saw that, I felt sure the election was over. What sane American could vote for such a power-crazed statist megalomaniac? But almost immediately it was tossed down the memory hole by the stenographers for the Democratic Party that infest all our major journalistic organs.
Here it is, for those who still have any illusions about just what kind of person we have put in the Oval Office:
http://www.youtube.com/watch?v=_fO-usAlqak
March 13, 2010, 6:19 pmAnonymous Homeowner says:
John Skookum at March 13, 2010 6:04 pm re “corporate armies”:
The corporate model of governance is well under way in this country. They’re called HOAs. HOAs have the power of small governments, but are shielded as corporations.
While most corporations protect your personal assets from the corporation’s liability, HOA corporations do exactly the opposite, since one of an HOA corporation’s assets is the right to the property of individual home owners.
Even if the mortgage is paid off, the home is always collateral to the HOA corporation.
Far from being a free-market alternative to government regulations, corporations have become another layer of it. And it doesn’t necessarily lead to freedom, as we’d love to think, but “‘repressive libertarianism,’ where certain people who call themselves libertarians invariably side with property owners who want to limit other people’s liberties through the use of contract law. Property rights (usually held by somebody with a whole lot of economic clout) trump every other liberty.”
For a modest proposal on how 20% of the population can legally be deprived of their Second Amendment rights under corporate governance, see here.
PS — And before anybody tells me that people voluntarily choose to live under the rule of an HOA corporation, please read my response to that argument here.
March 13, 2010, 7:09 pmSteve2 says:
And that was Justice Harlan’s doing, as best I can tell.
March 13, 2010, 7:37 pmRoland Nikles says:
There seems to be a lot of loose talk here about 2nd Amendment rights. Since this is a legal blog, it seems, one should not be speaking metaphorically about such things.
As I understand it the 2nd Am does not apply to the states per Slaughterhouse Cases and 139 years of constitutional history since then. So it strikes me one should not be speaking of anyone doing away with a 2nd Amendment RKBA as it applies to the states; it never existed. Heller established there is an individual RKBA vis a vis Congress.
The oral argument in McDonald per the consensus on this site, which I share, is that the 2nd Am will not be incorporated through the P&I clause–which would make the 2nd Am binding on the states. As I understand it, what’s at issue in McDonald is not a 2nd Am RKBA, but whether the court will create a new 14th Am. RKBA through the word “liberty.” Based on Kennedy’s comment that his vote in Heller was based on the value of the RKBA as a fundamental rights of man kind of thing I assume there will be a majority for declaring such a right. I also think there is some justification for doing so in light of the long established gun culture in this country, still adhered to passionately by a large portion of the population. But I think the term “incorporation” (of the 2nd Am) is a misnomer. If the court holds as expected, this will be a new right created by the court, just like the right to privacy. It’s not a 2nd Am RKBA.
It seems to me that there is some ambiguity about all this in what Scalia was saying durinig oral argument. So, if the above is not correct, I’d appreciate it if one of the professors could clear it up for me.
Thanks.
March 13, 2010, 8:48 pmKirk Parker says:
Sometime,
Um, no. See, in particular, paragraph 1(b).
March 13, 2010, 11:46 pmChris Travers says:
Here’s an amusing historical fact about weapons and juries, however.
Our current jury system appears to have been imported into England by the Vikings (yes the Anglo-Saxons had a jury system before the Vikings showed up but the Viking system from the Danelaw…. won out).
One interesting element about Viking juries was that the jurors were supposed to show up armed. Apparently the whole thing was because the weapons were status symbols and hence the idea of an armed jury provided a semblance of respect (sort of like standing when the judge enters the room). Furthermore violence during these trials by jury were very strictly forbidden (but immediately after everyone leaves the hallowed spot? Sure, that’s ok)…..
March 14, 2010, 12:52 amDavid Chesler says:
I’ll probably get kicked out of a lot of organizations for saying this, but I’d rather lose my right to have a gun (a right which I do currently exercise, and I’m licensed to bear it in public too) than go to jail for 6 months.
March 14, 2010, 10:49 amGoobermunch says:
@ John Skookum:
Is this what you’re referring to?
“Obama, July 2, Colorado Springs, CO: [As] president I will expand AmeriCorps to 250,000 slots [from 75,000] and make that increased service a vehicle to meet national goals, like providing health care and education, saving our planet and restoring our standing in the world, so that citizens see their effort connected to a common purpose.
People of all ages, stations and skills will be asked to serve. Because when it comes to the challenges we face, the American people are not the problem – they are the answer. So we are going to send more college graduates to teach and mentor our young people. We’ll call on Americans to join an energy corps, to conduct renewable energy and environmental clean-up projects in their neighborhoods all across the country.
We will enlist our veterans to find jobs and support for other vets, and to be there for our military families. And we’re going to grow our Foreign Service, open consulates that have been shuttered and double the size of the Peace Corps by 2011 to renew our diplomacy. We cannot continue to rely only on our military in order to achieve the national security objectives that we’ve set.
We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded. We need to use technology to connect people to service. We’ll expand USA Freedom Corps to create online networks where American can browse opportunities to volunteer. You’ll be able to search by category, time commitment and skill sets. You’ll be able to rate service opportunities, build service networks, and create your own service pages to track your hours and activities.
This will empower more Americans to craft their own service agenda and make their own change from the bottom up.”
I’m not exactly terrified of an army of granola eating Peace Corps graduates and education majors urging me to use CFL light bulbs and recycle. Nothing in that language screams, or even suggests, a military force. It suggests a massive, feel-good, PR effort.
–G
March 14, 2010, 12:19 pmAJK says:
I suspect he’s referring to the statement made in the youtube link in his post. Just a hunch.
March 14, 2010, 12:28 pmGoobermunch says:
@AKJ:
Right, that small quote, which is taken out of context, comes in the middle of the section I helpfully copied above. It’s absolutely amazing what context can do for a quote.
–G
March 14, 2010, 6:24 pmdclawyer says:
on a related but different note, dc has hit the intersection between certificates of no registration (required to prove lack of registration or license for an assortment of weapons offenses, requiring compliance w/ a licensing scheme that survives 2nd amend scrutiny) and 6th Amend confrontation clause (Crawford et al).
March 14, 2010, 7:14 pmyisroel says:
http://www.youtube.com/watch?v=01CF6w9L754
March 14, 2010, 11:08 pmjnheath says:
Roland Nikles: an American working overseas with no state residence can’t return to the US and buy a gun from an FFL, even where state law allows him to possess.
So you can be deprived of a federal right without being charged with any crime, because Congress has made exercise of the right conditional on state residence.
March 15, 2010, 1:23 pmBill Cyrus says:
This brings up an interesting situation with 2nd Amendment cases in places like NYC and urban California. The 6th Amendment is violated virtually every time. A jury in an anti gun jurisdiction almost cannot possibly be impartial in dealing with matters of technicality violations when they’re immersed in an anti gun culture created by the laws in place there. The bias is inherently discriminatory against gun owners who would otherwise be completely within the law except for trivial matters that have the excessive punishments associated with them (which should be held unconstitutional under the 8th, for that matter), for instance possession of magazines of greater capacity than California’s 10 round limit or New York City’s 5 which aren’t in place for the vast majority of locales but carry felony penalties there. Such laws are nonsense to anyone who knows better and quite easily violated unintentionally and accidentally. The expectations of individuals who have lived in such areas and expecting no different, often knowing no firearms owners personally and having no information as to whether such is typical or accepted elsewhere, would view the situation differently and quite negatively. Having the population stacked with non-firearm friendly people can make it such that juries would have no possible inclination to afford a defendant a measure of empathy which would otherwise be afforded in cases involving other charges.
Simply put, a gun owner can’t get anything resembling fair treatment in court if the public there thinks they’re a criminal simply for having or even wanting a gun in the first place.
March 16, 2010, 1:34 amSometime juror says:
My apologies for imprecision: I didn’t mean to imply you could carry into the actual courtroom; you inform the people running the metal detectors that you have a weapon to check: ‘the local legislative authority shall provide either a stationary locked box sufficient in size for pistols and key to a weapon owner for weapon storage, or shall designate an official to receive weapons for safekeeping, during the owner’s visit to restricted areas of the building.’
I never worried about the defendants or their friends attacking the jury in the courtroom; there are guards and the visitors have been through the metal detector too. After the verdict when one encounters the defendant’s pals in the parking garage … at least this juror really appreciated being able to check weapons at the courthouse.
March 16, 2010, 9:52 amMichael Ejercito says:
What is to stop the state from simply eliminating laws against domestic violence (other than lack of political will)?
Also, would not the Lautenberg Amendment be subject to a Tenth Amendment challenge?
Probably the same reason the Court took up Brown v. Board of Education.
July 14, 2010, 12:41 pm