Magnus v. U.S., decided today by the D.C. Court of Appeals — essentially the D.C. equivalent of a state supreme court — concludes that a defendant who pled guilty in 1996 to violating D.C. handgun ban can now have that plea set aside given D.C. v. Heller, assuming his conduct was indeed protected by the Second Amendment (and didn’t, for instance, involve the possession of a gun to facilitate an illegal drug transaction). “A conviction for conduct that is not criminal, but is instead constitutionally protected, is the ultimate miscarriage of justice,” and a defendant can therefore ask to have it set aside (via a petition for coram nobis relief) even many years later.
Dan the Man says:
Interesting. So someone can be punished more harshly merely for exercising a constitutional right (ie possessing a gun – which is protected by the 2nd amendment) while he’s doing something else that’s illegal?
Suppose someone was given a greater punishment of, say, 10 years in jail because he was wearing a “Sarah Palin Rox!” t-shirt while facilitating an illegal drug transaction. Would that be constitutional also?
January 6, 2011, 8:31 pmDisplaced Midwesterner says:
I believe the distinction is between cannot be punished and can be. Possessing a gun during a drug transaction, the argument goes, is not protected at all.
January 6, 2011, 9:09 pmJay says:
There is just not an exact analogy between the 1st and 2nd Amendments, and it makes gun-rights proponents look silly to act like there is. Nothing in Heller or McDonald indicates otherwise.
January 6, 2011, 9:16 pmMalvolio says:
Your saying those two things doesn’t make either of them true. Why, I would like to know, should the 1st and 2nd be treated differently?
January 6, 2011, 9:38 pmanoncon says:
Dan,
Prof. Volokh: gun “to facilitate”
You: t-shirt “while facilitating”
In his statement, the constitutionally protected activity is actually part of the crime. For a better First Amendment analogy, see Prof. Volokh’s writings on crime facilitating speech.
January 6, 2011, 10:04 pmElemenope says:
Your saying those two things doesn’t make either of them true. Why, I would like to know, should the 1st and 2nd be treated differently?
I don’t know about *should*, but it is certainly the case that each amendment is unlike the others when it comes to actual application. Over the course of many decades of jurisprudence, each has its own legal idiosyncrasies borne of many sources, not least that they all have different objects of concern. Why would it be reasonable to assume a priori that a right regarding guns would be similar in any respect than one regarding religion, or speech, or punishment, due process, or takings, or anything else? Are you arguing that the object of the right *obviously* has no effect?
January 6, 2011, 10:11 pmWaste93 says:
Actually most hate speech legislation is written this way also. The hate speech provision is an enhancement on an underlining crime. Even though free speech is protected. Not saying that it should be, just that there is a direct first ammendment anology. So not sure they really are being treated differently.
January 6, 2011, 10:20 pmPyrrho says:
I only skimmed through the decision, so maybe there is something in there addressing this point, but here is my first thought: Say I plead guilty to a crime after bringing an unsuccessful motion to suppress based on illegally obtained evidence. 10 years later, the U.S. Supreme Court says that type of police conduct used to obtain the evidence violates the Fourth Amendment. I can’t attack that on collateral review. Setting aside good-faith exception issues, how is that situation different from this one?
January 6, 2011, 10:27 pmSoronel Haetir says:
The main difference is that in the case you outline the charge pled to remains valid. In the case of D.C. the crime itself, not the proof underlying the crime, was ruled unconstitutional.
January 6, 2011, 10:37 pmBel says:
Gun possession is based on the right to self defense. Dealing in drug or in a robbery is not protected
January 6, 2011, 10:39 pmIn some civil law countries penal laws that are more favorable to the convict are applied retroactively
Spain:http://www.thinkspain.com/news-spain/18974/penal-code-reform-means-239-prisoners-will-be-released-today
Switzerland:
http://www.admin.ch/ch/e/rs/311_0/a2.html
And most latiamerican countries
Jay says:
First, just to be clear, I didn’t say the thing you’re quoting. Second, I’m not really sure about this — aren’t hate crimes typically based on motivation rather than speech? If I murder a black man because of his race, it being a “hate crime” doesn’t depend on whether I generate some kind of speech about my intent. Speech could be one way of proving my motive, but not necessary to doing so.
January 6, 2011, 10:44 pmJimmyL says:
I am interested in the remedy and have a concern similar to Pyrrho.
Both Wikipedia (ignoring for a moment the persuasiveness of the source) and Black’s Law Dictionary indicate that this writ is used to review factual, not legal, errors. For example, Black’s (8th ed.) notes that the writ is “predicated on alleged errors of fact.”
In stating that the writ may be granted for “[a] conviction for conduct that is not criminal, but is instead constitutionally protected,” the Court seems to be focusing on a legal issue—unless whether conduct is even criminal is considered to be a factual one. I normally would think not.
I agree their should be a remedy for these kinds of convictions, but I question whether this is it.
Anyone who knows more about this remedy, especially as DC Courts interpret it, care to opine?
January 6, 2011, 10:46 pmJay says:
Well, you might read the opinions, as I suggested in the part of my comment you clipped out. It’s not that there’s some extrinsic justification for treating the rights differently, but that the actual contours of the rights are different. Maybe there’s some argument that the RKBA would’ve been historically understood to preclude an enhancement for using a gun to commit a crime, but I’d tend to suspect not.
How would you even go about treating all rights “the same”? How do you apply the panoply of 1st A. jurisprudence, from the Lemon test to content-based restrictions, to the 2nd? What’s the relevance of Miranda to the 2nd Amendment?
January 6, 2011, 10:52 pmJay says:
Opinion at 12-13.
January 6, 2011, 10:58 pmMalvolio says:
The part I clipped out was
Nothing in Bleak House or War And Peace indicates that the 1st and 2nd Amendments should be treated differently, so go read those and come back.
I don’t know if this question even meant seriously. I would think a basic precept of law is that similar things should be treated similarly. In context, we know exactly how to treat RKBA like Free Speech. I assume anyone in jail for flag-burning was released after Texas v. Johnson (weren’t they?); therefore, if we agree that the 2nd Amendment is similar to the 1st Amendment, anyone in prison for activities that Heller or MacDonald deemed protected should be released.
January 6, 2011, 11:33 pmtheobromophile says:
My guess is that a Second Amendment case is much more clear on the facts – i.e. that if gun possession is the only element of the crime, and someone pled guilty to it, then there aren’t really any facts at issue in an appeal based on the unconstitutionality of the regulation. I imagine that other cases (such as free expression or Fourth Amendment cases) are much more fact-intensive and fact-specific than gun possession; Fourth Amendment cases also have more exceptions for otherwise-disallowed police conduct (e.g. inevitability).
Also, I suspect that the theory of analogising to the Fourth Amendment may work badly when applied to situations in which the defendant was charged with several crimes, but pled guilty to a handful of them to avoid prosecution on all of them. Now, I have zero idea of how a court would deal with that (does the prosecution lose, or is the entire case re-opened?), but can see how it’s more complicated than a Second Amendment case like this one.
January 6, 2011, 11:56 pmJay says:
Heller and McDonald are the seminal opinions interpreting the Second Amendment, so I think they might be more relevant than 19th century novels. And they didn’t “deem protected” using guns to commit crimes, which is what the comment I was responding to originally asked about. I don’t disagree with this decision (or with the idea of releasing flag-burners), because the defendant was convicted of simply possessing a firearm in his home, a protected activity.
Also, your clipping of my last comment is once again disingenuous. I went on to explain what I meant, but you ignored that in favor of riffing on a single sentence.
January 7, 2011, 12:04 amKazinski says:
I agree totally. The 1st amendment merely says “congress shall make no law”, while leaving open state action restricting free speech, assembly, and allowing state established religion, while of course the 2nd contains a blanket “shall not be infringed” prohibition that has no limiting scope of the prohibition.
I’m glad you brought that up.
January 7, 2011, 12:05 amJay says:
What is the right that is not to be infringed? What shall Congress make no law about? The applicability to every situation does not become apparent by reading the words over and over again.
January 7, 2011, 12:32 ameyesay says:
Kazinski wrote, “while of course the 2nd contains a blanket ‘shall not be infringed’ prohibition that has no limiting scope of the prohibition.” Well, actually, it does: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Until Heller the official interpretation of the Constitution was that the Second Amendment meant something very different from something like “The right of individuals to keep and bear arms shall not be infringed.” There are colorable arguments that disagree with Heller — in fact, it was a five-to-four decision with two strong dissents.
January 7, 2011, 1:15 amLarryA says:
Even in most RKBA states there are offenses, like assault, where aggravating circumstances include use of a weapon. The enhanced offense pertains to misuse of the weapon, not constitutionally-protected possession.
Just like freedom of speech doesn’t protect you from being prosecuted for fraud.
January 7, 2011, 1:22 amPatty Shundynide says:
The inexorable advance of ‘pled’ continues apace.
January 7, 2011, 3:18 amGuy says:
Well, I’m not sure what the First Amendment rule regarding defamation of public figures would look like transported to the Second Amendment (You can’t be sued for wrongful death if you shoot a public figure absent actual malice?) and there are obvious reasons why the First Amendment cares about public figures and the Second Amendment doesn’t. Typically, it’s not even possible to treat rights as identical except that the thing protected is different, and that the nature of the thing protected is irrelevant to how it is protected or the way in which it is protected. You wouldn’t apply strict scrutiny to Fourth Amendment questions, because the Fourth Amendment has its own unique system for determining when it applies and how. The privilege against self-incrimination only applies in criminal proceedings etc.
The problem with the “Sarah Palin Rox” example is that the increased punishment is irrelevant to the purpose of the underlying crime, and it is not viewpoint neutral. I don’t know what “viewpoint neutrality” would look like with respect to the Second Amendment. I think it would be strange to say, however, that armed robbery cannot be punished more harshly than unarmed robbery. The only argument I can see would be that it creates a “chilling effect” in that people would be discouraged from exercising their Second Amendment rights for fear of facing enhanced penalties should they happen to engage in robbery, but that’s not plausible or persuasive.
Reasoning by analogy can be an effective means of discovering the underlying similarities and differences between two situations, and articulating how those situations should be dealt with, but you can’t just insist that there be a strict isomorphism between all Constitutional rights, because they are not isomorphic.
January 7, 2011, 3:30 amMalvolio says:
Here’s the rest of what Jay wrote
If I may paraphrase, he’s saying “The rights are treated differently because they are different.” which would be an excellent introductory sentence to an argument about why they are different, but Jay stops there.
Another county heard from. Really, guys, no one is arguing that the First and Second Amendments are word-for-word identical. We are just saying that if the Constitution protects your right to do something, then they can’t keep you in jail for doing it. We illustrate that point with what we hope is an unarguable assertion — they can’t imprison you for exercising your First Amendment right — and say, “Similarly, they should not be able to imprison you for exercising your Second Amendment right.”
If you don’t agree, you guys are going to have to come up with something more convincing than “Hey, going to church doesn’t make a loud banging noise like shooting a gun does! They’re completely different!”
January 7, 2011, 3:49 amGuy says:
I agree that an increased penalty for possessing a gun in connection with certain crimes – such as simple possession of drugs, stretch the limits. But I think it is clear that possessing a gun in connection with violent crimes, and crimes likely to cause violence, is not particularly analogous to wearing the “Sarah Palin Rox” hypothetical. The post bringing up this example engages in sleight of hand – it’s difficult to see how the t-shirt, typically, could facilitate a drug transaction, and in any event it is difficult to imagine any legitimate reason to increase the punishment should a t-shirt be so used. The only justification I can imagine for such a law is to punish Sarah Palin supporters. But the purpose of punishing armed robbery more severely than unarmed robbery is not a simple desire to punish someone for owning a gun, it is to punish someone for using a gun in an unprotected way to threaten another person with the use of deadly force so that you can violate their property rights.
January 7, 2011, 4:11 amGuy says:
I’m not sure which legislation you are referring to, federal hate crime legislation, for example, is essentially anti-discrimination legislation, except that it applies to committing underlying crimes rather than, say, to hiring and firing. The legislation is not targeted at “hate speech” (hate speech legislation in the United States is rare, and typically raises serious First Amendment concerns), but I think that’s what you are thinking of.
January 7, 2011, 5:29 amPaul the tax serf. says:
Some rights are more equal then others. ( If confused, ask your local liberal. )
January 7, 2011, 7:49 amPaul the tax serf. says:
Oh, BTW. I don’t care a bit about the 2nd and crime. Or hunting.
January 7, 2011, 7:53 amI only care about it for political reasons. For attacking the state, and state power. Physically. Now, can I saw off my shotgun, as I am in favor of that. Honest.
dave in dallas says:
Free speech was meant, specifically in the context of the entire constitution, to protect speech AGAINST GOVERNMENT, i.e. political speech, campaign rhetoric, etc. In the USSR, speaking publicly about the wrongness of communism would get you a lifetime’s labor in a gulag. IN America, the plan was that speaking publicly against the party or people in power would get you NO PUNISHMENT FROM GOVERNMENT. It was never about hate speech or pornography or fire in a crowded theater.
similarly, having a gun was about being a prepared citizen. That a citizen had the right to protect himself, against bears or cougars or criminals, wasn’t even DISCUSSED because it was so OBVIOUS. The point of armed citizenry was that they be able to protect themselves against the depredations of a tyrannical GOVERNMENT. That idea is no less valid today. It is not coincidental that so many people on the left, i.e. proponents of large government which makes many small decisions FOR the citizen, should also be so opposed to citizens being armed. And no coincidence that total disarmament was the state of Soviet citizens, Chinese citizens under Mao, German citizens under Hitler, etc. Citizen vs. Subjects. Be free vs. SUBMIT.
January 7, 2011, 8:13 amShelbyC says:
Doesn’t Teague make an exception for decisions that place conduct out of the reach of punishment or something?
January 7, 2011, 9:26 amMorning Media Summary | OpenMarket.org says:
[...] Highest Court in DC Allows Second Amendment Challenges to Long-Ago Convictions for Violating D.C. Ha… “Magnus v. U.S., decided today, concludes that a defendant who pled guilty in 1996 to violating D.C. handgun ban can now have that plea set aside given D.C. v. Heller, assuming his conduct was indeed protected by the Second Amendment (and didn’t, for instance, involve the possession of a gun to facilitate an illegal drug transaction). “A conviction for conduct that is not criminal, but is instead constitutionally protected, is the ultimate miscarriage of justice,” and a defendant can therefore ask to have it set aside (via a petition for coram nobis relief) even many years later.” Cross-sex strip searches ruled unconstitutional: “A female jail guard’s strip search of a male inmate was a “humiliating event” that violated his rights, a divided federal appeals court in San Francisco ruled Wednesday.” [...]
January 7, 2011, 9:33 amWhistle says:
About time!! Now go after the ex post facto Lautenberg amendment that took away 2nd Amendment rights. And repeal anti-gun laws because they do no good in crime prevention. Just punish wrongful use of guns.
January 7, 2011, 9:48 amMalvolio says:
I hate it when people I don’t agree with aren’t able to formulate their arguments well. If I agreed with Guy and Jay, I would have no hesitation in trying to clarify their inchoate arguments. As it is…
How about this: the Second Amendment implicates actions, which, if unlawful, could cause harms irremediable at law. If I were to slander you, you could sue me, get monetary damages, and thereby be made whole; if I were to shoot you, neither money nor my imprisonment could really undo the harm done.
So if a law against practicing medicine without a license were repealed on First Amendment grounds, we wouldn’t just turn loose any person imprisoned under that law; if it were a criminal-libel law, we would.
There. I don’t know if that argument is strong enough, but it’s a real argument with which someone could agree or disagree.
January 7, 2011, 10:58 amMark Buehner says:
Sending a letter is free speech, defrauding someone via the mail is a federal crime.
January 7, 2011, 11:03 amreality check says:
Most on here agree with you. You should not be imprisoned for exercising constitutionally protected rights. However, the analogies being used are not equally constitutionally protected.
There is no constitutional right to use a gun in a robbery. There is, however, a constitutional right to wear a Sara Palin shirt – even when engaged in robbery.
This isn’t that complicated. Of course you shouldn’t be imprisoned for exercising constitutional rights…
…but you should be imprisoned for egregious violations of law that comply with the Constitution.
January 7, 2011, 11:08 amPatrick Henry says:
“A conviction for conduct that is not criminal, but is instead constitutionally protected, is the ultimate miscarriage of justice,”
and
“Magnus v. U.S., decided today, concludes that a defendant who pled guilty in 1996 to violating D.C. handgun ban can now have that plea set aside …”
_________________
Taking the above to a logical conclusion, any so-called Gun Crime conviction dating back to the antebellum (Slave Era) Jim Crow and then Black Codes may be considered for review.
The larger question in this instant matter is; “why has taken so long for the former Slave Class to enjoy the same Natural Rights (unalienable, God given etc.) as a White Citizen of a State” (several references made between 14th Amendment citizens and Citizens of a State within D.C. v Heller and McDonald v Chicago Corporation)?
Why would anyone in their right mind accept 14th Amendment status when the Slaughter-House cases make clear that the 14th can’t be imposed on any American? Please note that in this modern American era almost all Gun Laws are exclusive to 14th Amendment citizens and are careful to omit Citizens of a State (as our rights preexists any and all Constitutions/Contracts).
**** ****
“It is quite clear, then, that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics of the individual.” The Slaughter-House Cases: 83 U.S. 36, 74.
“The importance of the case can hardly be overestimated. By distinguishing between state citizenship and national citizenship and by emphasizing that the rights and privileges of federal citizenship do not include the protection of ordinary civil liberties such as freedom of speech and press, religion, etc., but only the privileges which one enjoys by virtue of his federal citizenship, the Court averted, for the time being at least, the revolution in our constitutional system apparently intended by the framers of the amendment and reserved to the states the responsibility for protecting civil rights generally.” Cases In Constitutional Law by Robert F. Cushman, 5th Edition, pp. 250-251 (College Law Textbook) [1979].
“Citizenship is elaborated in two privileges and immunities clauses of the United States Constitution. . . . The Slaughter-House Cases [1873] 83 U.S. 36, 21 L.Ed. 394, emphasized the distinct character of federal and state citizenship. Slaughter-House held that privileges and immunities conferred by state citizenship were outside federal reach through the Fourteenth Amendment. . . . Federal citizenship was seen as including only such things as interstate travel and voting. While subsequent decisions have extended the meaning of citizenship in the Fourteenth Amendment, Slaughter-House is still controlling in that it precludes use of privileges and immunities language in protecting citizens by federal authority.” Constitutional Law Deskbook – Individual Rights, by Chandler, Enslen, Renstrom; Second Edition, p. 634 (Lawyers Cooperative Publishing, 1993).
“The Fourteenth Amendment did not obliterate the distinction between national and state citizenship, but rather preserved it. Slaughter-House Cases.” 103d Congress, 1st Session, Document 103-6: The Constitution of the United States of America; Analysis And Interpretation: Annotations Of Cases Decided By The Supreme Court Of The United States To June 29, 1992, p. 1566. 1
In addition, the Supreme Court in The Slaughter-House Cases concluded that there are two citizens under the Constitution of the United States:
“The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.
The language is, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.
Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.” The Slaughter-House Cases: 83 U.S. 36, at 73-74.
“The expression, Citizen of a State, is carefully omitted here. In Article IV, Section 2, Clause 1, of the Constitution of the United States, it had been already provided that ‘the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.’ The rights of Citizens of the States [under Article IV, Section 2, Clause 1] and of citizens of the United States [under The Fourteenth Amendment] are each guarded by these different provisions. That these rights are separate and distinct, was held in the Slaughterhouse Cases, recently decided by the Supreme court. The rights of Citizens of the State, as such, are not under consideration in the Fourteenth Amendment. They stand as they did before the adoption of the Fourteenth Amendment, and are fully guaranteed by other provisions.” United States v. Anthony: 24 Fed. Cas. 829, 830 (Case No. 14,459) [1873]. 2
“This provision [The Fourteenth Amendment] protects only those rights peculiar to being a citizen of the federal government; it does not protect those rights which relate to state citizenship. See Slaughter-House Cases 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873).” Jones v. Temmer: 829 F.Supp. 1226, 1232 [1993].
Therefore, State citizenship and United States citizenship are provided for in the Constitution of the United States. A citizen of a state is to be found at Article IV, Section 2, Clause 1 of the Constitution of the United States whereas a citizen of the United States is located at the Fourteenth Amendment.
Warm Regards,
Patrick
January 7, 2011, 12:14 pmJoshua Chavers says:
It’s not illegal to have a gun.
But if you use said gun to help you rob a store your punishment will be more severe then if you hadn’t.
January 7, 2011, 12:50 pmRepeal 16-17 says:
The Slaughter-House Cases is a dead letter outside of the Privileges or Immunities Clause of the Fourteenth Amendment. Also, that decision is irrelevant to this case, which comes from the District of Columbia (a federally controlled territory).
January 7, 2011, 12:52 pmHigh Court in D.C. Allows Second Amendment Challenge of Old Convictions | Gunalizer says:
[...] who pleaded guilty to gun possession can now change it. The case goes back to 1996. More on this at Volokh Conspiracy. Comments [...]
January 7, 2011, 12:56 pmThe Gun thread says:
[...] http://volokh.com/2011/01/06/highest…c-handgun-ban/ Magnus v. U.S., decided today, concludes that a defendant who pled guilty in 1996 to violating [...]
January 7, 2011, 1:30 pmGene Hoffman says:
There is an important distinction in the second amendment and that is that the use of arms is not protected. By use, I mean discharging, stabbing, clubbing, brandishing, assaulting, etc.
The letter/mail fraud example above seems a pretty good analogy here. It is perfectly prohibitable by law to criminalize carrying a gun during a robbery of a liquor store. It is a violation of the right to bear arms to criminalize the peaceable carrying of the same gun while shopping at a liquor store.
As to their being some distinction that the first amendment is somehow less “dangerous” than the second, if someone incites a riot that kills you, you’re just as dead. I’m quite sure there would have been less violence in the 1960′s south absent the protections of the first. The second did actually lead to less violence however.
-Gene
January 7, 2011, 1:49 pmDan the Man says:
Hardly a distinction. If the Sarah-Palin-Rocking-Drug-Dealer had taken off his “Sarah Palin Rox!” t-shirt and tried to strangle somebody else with the t-shirt, that action would also not be protected. So one could say with equal force that use of free speech is not necessarily protected either.
Peaceable? Heller, etc said the right to bear arms could be justified based on self-defense. How is self-defense with a gun “peaceable” at all? Doesn’t Heller, etc say everyone has the right to prevent others from raping/killing you even if you happen to be committing a crime at the time? Or can the governemnt ban you from possessing a gun while you are jaywalking or littering or speeding?
January 7, 2011, 2:19 pmPatrick Henry says:
Dear Repeal 16 -17,
With all due respect you have missed a much larger point being that “Privileges and Immunities” enjoyed by Citizens of a State are much different than those of a 14th citizen. And if the matter were truly “Dead Letter” why would the Supreme Court in DC v Heller and McDonald cite the majority of Case Law specifically and almost exclusively the Citizen of a State status (only one 14th case was cited in DC v Heller).
The Dead Letter issue as I understand it may be attributed to the profound ignorance of the American body politic in Re the subject matter “14th v State Citizen political status”. An example of this profound ignorance is found in your second statement:
“Also, that decision is irrelevant to this case, which comes from the District of Columbia (a federally controlled territory).”
The following landmark Supreme Court decision DOWNES V. BIDWELL, 182 U. S. 244 (1901) jurisdiction case (making clear the bright distinction between the operation of federal and state territory law .. also cited as one of the Insular Cases):
“It may be added in this connection that, to put at rest all doubts regarding the applicability of the Constitution to the District of Columbia, Congress, by the Act of February 21, 1871, 16 Stat. 419, 426, c. 62, sec. 34, specifically extended the Constitution and laws of the United States to this District.”
The Fourteenth Amendment provides that
“all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,”
and this Court naturally held, in the Slaughter-House Cases, 16 Wall. 36, that the United States included the District and the territories. Mr. Justice Miller observed:
“It had been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the states composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided.”
And he said the question was put at rest by the amendment, and the distinction between citizenship of the United States and citizenship of a state was clearly recognized and established.
“Not only may a man be a citizen of the United States without being a citizen of a state, but an important element is necessary to convert the former into the latter. He must reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.”
n Callan v. Wilson, 127 U. S. 540, which was a criminal prosecution in the District of Columbia, MR. JUSTICE HARLAN, speaking for the Court, said:
“There is nothing in the history of the Constitution or of the original amendments to justify the assertion that the people of this District may be lawfully deprived of the benefit of any of the constitutional guaranties of life, liberty, and property — especially of the privilege of trial by jury in criminal cases.”
And further:
“We cannot think that the people of this District have in that regard less rights than those accorded to the people of the territories of the United States.”
In Thompson v. Utah, 170 U. S. 343, it was held that a statute of the State of Utah providing for the trial of criminal cases other than capital by a jury of eight was invalid as applied on a trial for a crime committed before Utah was admitted; that it was not
“competent for the State of Utah, upon its admission into the Union, to do in respect of Thompson’s crime what the United States could not have done while Utah was a territory,”
and that an act of Congress providing for a trial by a jury of eight persons in the Territory of Utah would have been in conflict with the Constitution.
Article VI of the Constitution ordains:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”
And, as Mr. Justice Curtis observed in United States v. Morris,
Page 182 U. S. 363
1 Curtis 50,
“nothing can be clearer than the intention to have the Constitution, laws, and treaties of the United States in equal force throughout every part of the territory of the United States, alike in all places at all times.”
—–
The short of the matter is that 14th citizens have been persecuted from the time of Jim Crow and now The Black Codes. A quick review in any “state” or federal gun prohibitory statutory scheme (including D.C.) makes clear that “Citizen of a State” (collectively known as We The People” are never referenced and consistently excluded and are presumed exempt by way of the Privileges and Immunity Clause (Article IV, Section 2, Clause 1, also known as the Comity Clause) and the prohibition against infringement found in the Second.
With DC v Heller and McDonald 14th Amendment citizens now enjoy the Second as an “Incorporated Right” that may be Unincorporated (the misnamed Patriot Act is a wonderful example) at the whim of the Legislator.
Warm Regards,
Patrick
January 7, 2011, 2:28 pmDavid E. Young says:
Justice Breyer joined in Justice Stevens’ historically oriented Heller dissent, which eyesay believes to be strong. Breyer correctly observed recently that “more of the historians were with us.” True, a number of professional historians supported Washington DC’s gun control laws and argued against an individual right interpretation of the Second Amendment.
Yet there is a major problem for eyesay and this “strong” Heller dissent that was consistent with historians’ views because a considerable number of relevant historical sources directly contradict them.
Eyesay has an opportunity to examine extensive historical evidence that completely undermines what he considers a strong dissent. Will he question his beliefs by looking at these facts, or continue to rely on pronouncements from those who simply claim expertise?
Root Causes of Never-Ending Second Amendment Dispute – Part 1 is the first of a 24 post series documenting the numerous historical errors and oversights in the historians’ Heller brief, some of which carry over into the Heller dissent.
January 7, 2011, 3:16 pmGuy says:
That’s not really a “clarif[ication]” of my “inchoate” argument, it’s a different argument… on a different subject. We were not discussing retroactivity, unless I gravely misunderstood (although that’s less tangential to the original post), typically, if a criminal statute proscribes protected conduct, there is no retroactivity bar. An argument could be made here that there is a special reliance interest (the city may have wanted to enact a Constitutional regulation scheme, rather than have the whole thing nullified) that justifies a departure from the ordinary rule, but it’s not really a slam dunk. I don’t see why whether the harms are remediable is at all relevant to the retroactivity issue. I would think either the harms justify imprisonment (in which case it’s not unconstitutional) or they don’t (in which case the rule should be retroactively applied).
We were discussing (I thought) whether a crime’s penalty can be enhanced for using a firearm to facilitate it. I’m saying the Second Amendment is not a license to commit armed robbery, like the First and Fifth Amendments are not licenses to perjure yourself. Of the purposes for which the Second Amendment exists, making it easier to commit violent crimes is not among them. An enhanced penalty for using a gun to facilitate a crime neither undermines the militia, nor limits your ability to defend yourself. An enhancement for wearing a “Sarah Palin Rox” t-shirt, and similar crimes, on the other hand, would be useful tools by which an oppressive government could squelch dissent, and stigmatize political views.
Is that sufficiently well-formulated yet?
January 7, 2011, 3:24 pmGuy says:
But there is no rational basis I can see justifying the enhanced penalty for the t-shirt except government disagreement with the view expressed by the t-shirt, which is an impermissible basis.
The enhanced penalty for armed robbery, on the other hand, is probably not intended to disarm the population, but rather to punish a crime more severely because it was committed in a manner more dangerous, violent, and disturbing to public peace and order.
January 7, 2011, 3:35 pmSubtle Scotus insulter says:
“Highest Court in D.C.” != Supreme Court of the United States. Love it.
[EV says: Funny; I didn't intend that, but just to decrease confusion I changed the title to refer to "D.C.'s Highest Court," which I think is less likely to be read the way you suggest.]
January 7, 2011, 3:52 pmGene Hoffman says:
@Dan the man,
I assume you consider beat cops unpeaceable then?
The problem with disarmament arguments is the never seriously consider why cops are armed. I’ll happily vote to amend the Constitution to repeal the 2A the day we all agree cops no longer need firearms and that we have and adequate check on our military forces to keep them under civilian control.
-Gene
January 7, 2011, 3:54 pmmatt d says:
Many posts in this thread have drifted from considering a drug dealer possessing a gun to a robber possessing a gun. Those are certainly distinguishable cases; a sentencing enhancement on the robbery is an infringement that’s much easier to justify, at least in my mind.
I’m not sure where the topic shift happened.
January 7, 2011, 5:14 pmJay says:
I wasn’t trying to make a particular argument about how the 1st and 2nd should be comprehensively interpreted, because doing so would be beyond the scope of a blog comment, and my knowledge. I was just responding to the tendency to make surface-level analogies between the two. If you’re coming from anything approaching an originalist view of the constitution, phrases like “the freedom of speech” and “right to keep and bear arms” are terms of art that had particular meaning at the time of adoption. So I’m not making the policy argument you propose for me(“guns are dangerous so the 2nd amendment should be restricted more”). I’m just saying that understanding what these things mean requires scholarship and analysis and is usually not obvious at first glance. That’s why I mentioned the major opinions a couple of times, as well as some of the academic literature.
So, maybe you’re right that it’s unconstitutional to enhance a sentence based on the use of a firearm, or have that as the element of a crime. But it’s not sound legal analysis to conclude that based on an analogy to a different phrase with a different history and meaning.
January 7, 2011, 5:29 pmGuy says:
I think the shift was mine, around where I said
Since I was only arguing that you can’t just blindly apply analogies, I felt the shift was immaterial, except insofar as it segregated out the (in my mind irrelevant to the discussion) question of whether it is sensible as a matter of policy to view facilitating a drug transaction with a weapon as increasing the dangerousness to society of the crime. The question of whether that condition violates the Second Amendment is its own issue. If we’re going to measure “closeness”, I would say the robbery example is a much closer match than the Sarah Palin hypo, but the law originally brought up is in between those two.
January 7, 2011, 5:53 pmGoneWithTheWind says:
Would it be appropriate to punish someone more if they were enjoying their 2nd amendment rights while exceeding the speed limit? Maybe even have a much greater penalty if they were caught speeding with an “assault rifle” in the trunk!!
January 7, 2011, 6:02 pmShannon says:
Not really true, I think.
I’m willing to bet money that, if one robbed a bank with a note referring to a bomb, and one had a pistol in one’s pocket, and was arrested for that robbery, the charges would be enhanced (either as armed robbery or by “use of a firearm in the commission of a crime”), based on the possession of a gun that was factually never used to further the underlying offense.
And I’d further bet that any such conviction would be upheld.
–Shannon
January 7, 2011, 9:51 pmEric Welch says:
@Dave in Dallas: was about being a prepared citizen.That a citizen had the right to protect himself, against bears or cougars or criminals, wasn’t even DISCUSSED because it was so OBVIOUS.The point of armed citizenry was that they be able to protect themselves against the depredations of a tyrannical GOVERNMENT.That idea is no less valid today.
It had much more to do with the importance of the right to having an armed militia (remember the first 4 words of the 2nd amendment?)because the southern states were terrified of a slave rebellion and southerners wanted to be assured that their militias would not be disarmed. (See “The Hidden History of the Second Amendment,” by Roger Williams University School of Law Professor Carl T. Bogus)
January 7, 2011, 11:00 pmShootist says:
I’m no barrister, however I do not believe that a short barreled shotgun qualifies as a weapon suitable for use by the militia. You might get more (slightly) more legal traction by modifying the sear in any number of semi-auto rifles, shotguns and/or pistols.
An argument might be made that the “first freedom™” mandates that citizens have the right to be armed in a manner similar to that of a Private in the Standing Army or Marines Corps. Unfortunately, that’s just me.
January 7, 2011, 11:06 pmMark Turner says:
Ahh Yes, Carl Bogus’s Hidden History of the Second Amendment.
A History so hidden, no one else, including Michael Bellesiles, could find it.
January 7, 2011, 11:31 pmJohn Herbison says:
I haven’t yet read the linked opinion, but my understanding of the law relative to a plea of guilty is that parties who deal with other on the basis of a presumptively valid statute, which statute is later declared unconstitutional, remain bound by their bargain (at least after the time for a collateral attack upon the conviction has expired). Capri Adult Cinema v. State, 537 S.W.2d 896 (Tenn. 1976). Contra: People v. Weintraub, 20 Ill.App.3d 1090, 313 N.E.2d 206 (Ill.App. 1974).
January 7, 2011, 11:36 pmJohn Herbison says:
And for those gun rights advocates who posit a symmetry between the First Amendment and the Second Amendment, be careful what you ask for. Application of the so-called “secondary effects” doctrine, see, City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) and its progeny, would be disastrous for the firearms industry if gunshot injuries and fatalities are characterized as secondary effects of gun possession.
January 7, 2011, 11:50 pmHeartland Patriot says:
Since I’m just a mechanic, and not a legal-career type, can someone tell me how this isn’t ex post facto…and I certainly wouldn’t want any sort of law that was to make precedent in the USA…no matter what the intentions were…though I would generally be for anything that is pro-2A.
January 8, 2011, 12:26 amDavid E. Young says:
The Carl Bogus article cited has major historical flaws. Professor Bogus’ view is that the Second Amendment was passed to appease southern states that wanted to retain powers over the militia. However, the fact is that protection for the people being armed was proposed in seven ratifying conventions. Only two of those were southern states, the other five being northern states.
Second Amendment related right to arms proposals were offered by Antifederalists in Pennsylvania and Massachusetts, where they were defeated along with other bill of rights provisions, and in New Hampshire, Virginia, New York, North Carolina, and later Rhode Island, where they were adopted along with other bill of rights proposals. These facts directly contradict Professor Bogus’ views about the Second Amendment appeasing southern states.
The relevant and often overlooked history for the Second Amendment is that relating to proposal and adoption of a bill of rights for the Constitution based upon state bills of rights, which the Second Amendment was part and parcel of. It was not about whether there should be militia powers amendments.
There were militia powers amendments proposed in three ratifying conventions – Pennsylvania (defeated), and Virginia and North Carolina (adopted, but not part of the bill of rights proposals). Note that in every state convention where a militia powers amendment was proposed there was also a completely separate and easily distinguished Second Amendment predecessor that was developed directly from preexisting state declaration of rights language and intended to be a bill of rights provision limiting all federal powers rather than an amendment of a specific federal power. Clearly, preexisting state declaration of rights provisions could not relate to transfer of power between governments in a subsequently formed federal constitution the existence of which could not have been foreseen.
Professor Bogus and the fifteen professional historians who filed the brief supporting Washington DC in the Heller case all get this straightforward and easily documented distinction wrong. They have conflated the history and intent of proposed militia powers amendments with the two-clause Second Amendment predecessor formed in the Virginia Convention. At the same time they have ignored the fact that it was Virginia’s militia powers amendment that resulted from the militia powers history they present.
These and many other detailed historical points have been discussed and documented at On Second Opinion Blog.
January 8, 2011, 1:55 amWoodster says:
Um, there is a problem with this regarding research: you’re comparing a blog site, where anyone’s opinion can be stated as fact, vs. the word of a professor who works at a law school, and that professor’s word on the subject is available in a hard-copy document. I’m not saying that all the stuff on one’s blog site is made up; however, it is that much harder to prove that the content on one’s blog site is actually true, when one should just cut to the chase and read books, historical documents, official records, or even hands-on with some archeology. I mean, look at the title of the site for crying out loud! One’s Second Opinion! I’ll bet it’s great for debates, but for research it’s not even close to being adequate unless the research topic is on one’s opinions discussed on such a site. At the same time, professors aren’t perfect either. This is why we have historical documents and records to check out.
January 8, 2011, 9:52 ammilquetoast says:
What has happened in the past, when criminal convictions were based on activity later determined to be constitutionally protected? Did people who had been convicted of engaging in homosexual sodomy have their convictions overturned after Lawrence?
January 8, 2011, 10:12 amCarl N. Brown says:
Possession or use of a firearm (or any deadly weapon for that matter) in the furtherance or commission of a crime is not protected.
“Traditional” gun control laws tend to criminalize otherwise lawful ownership and use of firearms in the absence of overt criminal or violent behavior.
Locally we had a guy who shot and killed a fired employee who punched him after being fired (and apparently planted a knife to justify the shooting) get 2 years for manslaughter, 2 for tampering with a crime scene and 6 for use of a firearm in commission of a felony.
That is different from the guy in New Jersey who got 7 years for “improperly” transporting an unloaded gun in a locked container while transferring legally possessed firearms between residences.
In a DC situation, I would have no expectation that the manslaughterer would get the 6 years lifted on 2A grounds but I would have expectation that the transporter would get the 7 years lifted on 2A grounds.
Gun control advocates seem to miss the point that the majority of criminals do not own or use guns, while the vast majority of people who exercise the right to keep and bear arms are not criminals and don’t deserve to be felonized by abiguous definitions that have nothing to do with overt harmful acts.
January 8, 2011, 11:32 amChagrined says:
Gabrielle Giffords. This is of course someone put on the target list of a former candidate for Vice-President.
http://www.huffingtonpost.com/2010/03/24/sarah-palins-pac-puts-gun_n_511433.html
JD Hayworth said on the TV that it is good news that Arizona’s hospitals are good at treating gun shot wounds.
January 8, 2011, 2:03 pmDC court revives old handgun cases « Internet Scofflaw says:
[...] court revives old handgun cases This seems right: Magnus v. U.S., decided today by the D.C. Court of Appeals . . . concludes that a [...]
January 8, 2011, 2:24 pmMichael Ejercito says:
More disastrous for the firearms industry than the government?
January 8, 2011, 2:32 pmDavid E. Young says:
As Woodster could discover by taking only a cursory look at On Second Opinion Blog, it is not set up to present “anyone’s opinion” in the posts. All posts at the blog come from the editor of The Origin of the Second Amendment, which is a ratification era document collection cited extensively by both sides in the Heller case. While anyone’s opinion can be given in comments at the blog, those are not part of the documented discussion in the posts.
The main purpose of the blog is to provide documentation with citations to hard copy sources of specific errors made by the professional historians who presented briefs in the Heller and McDonald cases. There should not be any errors of historical fact in professional historians’ presentations to the Supreme Court, and yet a considerable number have been clearly identified and documented in posts at On Second Opinion.
January 8, 2011, 3:15 pmHenry Bowman says:
Maybe in his statement, but in the real world of convictions the opposite is true. Roland Bailey received an “enhanced sentence” for drug possession (not sales) because an unloaded, holstered gun was later found in his car trunk. Candisha Robinson was similarly charged for selling crack in her house when a later search turned up an unloaded, holstered .22 pistol in a locked steamer trunk in a bedroom closet.
January 8, 2011, 3:25 pmpaul says:
DeShaney vs Winnebago County Dept.of Public Services supreme court decision 1989
All that are anti – gun look it up….after you read it , I think you won’t have much to say.
I don’t think you will go outside anymore!!
for all of you there is always thorazine…..ask your doctor for a prescription
January 10, 2011, 2:36 amMichael Ejercito says:
Also see South v. Maryland.
January 10, 2011, 11:23 amJohn Herbison says:
I am puzzled. What does whether a damages action lies against a local government for failure of social workers to prevent a father from injuring his young child have to do with guns?
January 10, 2011, 12:45 pmMichael Ejercito says:
Both DeShaney and South stand for the proposition that governments have no legal or constitutional duty to protect people from third party violence.
January 10, 2011, 8:48 pmGreat Second Amendment News: Heller Can Be Retroactive - Hit & Run : Reason Magazine says:
[...] Via Volokh Conspiracy. [...]
January 10, 2011, 10:55 pmJohn Herbison says:
I understand that. So Joshua DeShaney, age 4, should have employed a firearm in self-defense?
I surmise that either my question was too subtle, in which case I apologize, or Mr. Ejercito is being deliberately obtuse.
January 11, 2011, 12:57 amMichael McNeil says:
I do not believe that a short barreled shotgun qualifies as a weapon suitable for use by the militia.
Certainly short barreled shotguns are appropriate for militia (military) use.
January 31, 2011, 1:31 pm