I’m on the run now, so can’t analyze it in detail, but I thought I’d pass it along: Gonzalez v. City of West Milwaukee (7th Cir. Feb. 2, 2012). Thanks to John Tuffnell for the pointer.
Archive for the ‘Guns’ Category
In today’s United States v. Rehlander (1st Cir. Jan. 13, 2012), the First Circuit revisited and narrowed its precedents related to 18 U.S.C. § 922(g)(4) — the statute that bars gun possession by people who had at some point been “committed to a mental institution” — in light of the Second Amendment:
Benjamin Small and Nathan Rehlander were each involuntarily admitted to psychiatric hospitals under Maine’s “emergency procedure,” Me. Rev. Stat. tit. 34-B, § 3863 (2011), and each was later convicted for possessing firearms after having been “committed to a mental institution.” 18 U.S.C. § 922(g)(4) (2006). This court has previously held that a section 3863 hospitalization qualifies as a “commitment” under section 922(g)(4), United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998), but appellants say that District of Columbia v. Heller has altered the equation….
Maine has two procedures for involuntary psychiatric hospitalization. Section 3863 provides for temporary hospitalization following ex parte procedures — that is to say, without an adversary proceeding. The procedures include an application by a health or law enforcement officer, a certifying medical examination by a medical practitioner, and an endorsement by a judge or justice of the peace confirming that these procedures have been followed.
For full scale commitments (as opposed to temporary hospitalization), Maine requires a traditional adversary proceeding, Me. Rev. Stat. tit. 34-B, § 3864, culminating in a judicial determination as to whether the subject both is mentally ill and poses a danger to himself or others. This procedure is described in the statute as a “commitment,” not “emergency hospitalization,” and one consequence is that under Maine law, a section 3864 commitment causes a loss of the right to possess firearms….
[Appellants claim] that, given Heller‘s pronouncement of an individual constitutional right to possess arms, the ex parte procedures employed under section 3863 may justify temporary hospitalization but not a permanent deprivation of the right to bear arms — permanent given the lack of any meaningful way ever to recapture that right.
We conclude that this claim is sufficiently powerful that the doctrine of constitutional avoidance requires us to revisit our prior interpretation of section 922(g)(4); and, in doing so, we conclude that section 3863 proceedings do not qualify as a “commitment” for federal purposes….
But I’m happy to say that today’s Ryan v. Hughes-Ortiz (Mass. App. Ct. Jan. 6, 2012) throws out the lawsuit:
In November, 2001, [Charles] Milot was released on probation from the Billerica house of correction after an incarceration of about eighteen months. [Thomas] Hughes testified in his deposition that he helped Milot to get reestablished by loaning him a small amount of money and giving him odd jobs to do around his house. [During the pendency of this action, Hughes died, and his daughter, Hughes-Ortiz, was substituted as a party defendant.] Hughes knew Milot through Milot’s sister, Deborah McConologue, and her husband, whom Hughes had known for twenty years. Hughes was aware of Milot’s history of substance abuse, prior depression, and the loss of Milot’s driver’s license.
In his deposition, Hughes testified that he owned several firearms that he stored in a chest in a second-floor bedroom. The bedroom was kept locked and had been outfitted with barred windows. Hughes testified that he kept the keys to this bedroom in a vase on top of the fireplace.
One of the firearms that Hughes owned was a Glock pistol. Hughes purchased the Glock pistol and its storage container in 2000 from the widow of a former Boston police officer. Hughes testified in his deposition that he stored the unloaded pistol as well as its magazine in its storage container in a chest drawer in the same bedroom where his other guns were stored….
In her deposition testimony, McConologue reported that, at a family event held on February 23, 2002, Milot showed her two handguns and two loose cartridges … [and] told her that he got them from Hughes’s house. She further testified that Milot told her that he found the key in Hughes’s house for the locked bedroom door, unlocked the door, and found the guns, ultimately taking them from Hughes’s home. McConologue testified that she advised her brother to call Hughes and return the pistols to him, that Milot did not want to tell Hughes that he had taken the guns, but that Milot agreed to put them back the way he had found them.
On February 25, 2002, Hughes picked up Milot around 7:00 A.M. and brought Milot to his house. Once they were at Hughes’s house, Hughes showed Milot the front doorbell that he wanted Milot to repair. Hughes then left his house to run some errands, returning to check on Milot’s progress about two hours later. When Hughes returned home, he found Milot’s body covered with blood in the front doorway of his home. The police and an ambulance were called and upon their arrival, Milot was pronounced dead. An autopsy was performed, and it was determined that Milot had suffered a gunshot wound to his left thigh which severed the femoral artery and caused Milot to bleed to death…. Police speculated that “[a]pparently the victim was attempting to put the gun back in the container when the round was fired, striking the victim in the upper left leg…. The victim apparently walked out of the bedroom, down the front stairs, into the living room, used the telephone and walked to the front door where he collapsed and died.” …
Apropos the United States v. Huet discussion, let me ask a broader question.
People generally have a Second Amendment right, the Court has held, to have guns in their homes. Most of us could keep a handgun in our nightstands, for instance, setting aside special questions about laws requiring locked storage of guns when children are around. (Those questions are potentially similar to the ones I talk about here, but different enough that I didn’t want to focus on them at this point.)
But federal law bars several classes of people from possessing guns, see 18 U.S.C. § 922(g)(1), including:
- Anyone who has ever been convicted in any court of a crime punishable by imprisonment for a term exceeding one year (unless the person’s civil rights have been restored, a procedure that isn’t available for federal crimes and isn’t available in some states),
- anyone who has ever “been adjudicated as a mental defective or who has
been committed to a mental institution,” - anyone who has ever been convicted in any court of a misdemeanor domestic violence crime,
- any nonresident alien (with limited exception).
What kinds of restrictions should the government be able to impose on those who live with people who fit in these categories — for instance, because they’re married to those people, have those people as adult children or parents who are living with them, or have those people as houseguests or roommates? Say, for instance, that a visitor comes to stay with a gun owner for a week from outside the country, or the gun owner’s relative who has a long-ago criminal record comes to visit. May the government categorically ban gun possession in the home by people who live with (or temporarily have as houseguests) such prohibited persons, on the theory that such possession in the home necessarily means the prohibited persons possess the gun as well?
May the government ban only the unlocked storage of guns in the home (except when the gun is being physically held by the owner)? Ban even locked storage, unless the lock is a combination lock and the prohibited person never learns the combination, or the lock has a key and the owner of the gun always keeps the key in a place where the prohibited person can’t get it? Only ban storage in common places or rooms to which the prohibited person commonly accesses, so that you can store it in your nightstand (unless the prohibited person sleeps in your room), so long as it’s understood that the prohibited person isn’t allowed in your room? Not impose any bans at all, except for the prohibition on the prohibited person actually picking up the gun?
I’d like to get at exactly how these people’s gun possession might be restricted, rather than just relying on generalities such as “constructive possession.”
Yesterday’s United States v. Huet (3d Cir.) reverses a district court indictment dismissal that I blogged about a year ago (some line breaks added):
Although [Melissa] Huet is legally permitted to possess a firearm, [her housemate and boyfriend Marvin] Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of [a raid on her house that uncovered guns], Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet’s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall’s possession….
[Huet moved to dismiss the indictment, arguing] that even if Count Three did state an offense for aiding and abetting a felon in possession, under the factual scenario presented in this case, the charge violated her rights under the Second Amendment. The District Court agreed, finding that “to permit [the] Indictment to go forward … would be [to] countenanc[e] the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon.” “[T]o punish Huet, who has not been convicted of a felony … as a principal, violates the core of the Second Amendment right to keep arms,” the Court opined, because the conduct alleged to have aided and abetted was “purely possessory.” Although the District Court did not explicitly designate the Second Amendment violation as an alternative basis for dismissal, it clearly viewed it as such. Accordingly, we must address both the sufficiency of the Indictment and the Second Amendment challenge….
[T]he District Court erred to the extent that it imposed a heightened pleading standard for offenses under 18 U.S.C. § 922(g)(1) and § 2 [the federal aiding and abetting statute -EV]. The District Court dismissed Count Three based on its determination that “[t]he facts in the Indictment fail[ed] to set forth any allegations to support the conclusion that … Huet aided and abetted … Hall in his unlawful possession of the SKS rifle.” The District Court faulted the Government for failing to include “any specifics” as to how Huet aided Hall, and determined that the Government simply “charge[d] its conclusion.” Although some offenses must be pled with greater specificity than the “plain, concise, and definite written statement” contemplated by Rule 7(c)(1), we have never held aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 to be such an offense, and we decline to do so now….
[As to the Second Amendment,] Huet argues that based on the circumstances of her case, she cannot constitutionally be charged with aiding and abetting a felon to possess a firearm. Specifically, she contends that the Government’s only evidence is that she possessed the SKS rifle in her home while living with a convicted felon. The District Court agreed, finding that “to permit [the] Indictment to go forward” would be to “countenance[e] the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon.
We disagree. We cannot say that an indictment which properly alleges aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 violates the Second Amendment under Heller. Applying Marzzarella [a recent Third Circuit precedent -EV], a properly-brought aiding and abetting charge does not burden conduct protected by the Second Amendment. The District Court’s characterization of the Indictment as seeking to criminalize the otherwise legal possession of a firearm by a non-felon simply because she lives with a felon is misleading. The Indictment does not allege that Huet’s possession of the SKS rifle violated the law; rather, it alleges that Huet aided and abetted Hall to possess the firearm.
We are mindful of the risk that felon dispossession statutes, when combined with laws regarding accomplice liability, may be misused to subject law-abiding cohabitants to liability simply for possessing a weapon in the home. However, in this case, the District Court’s determination that the Government overreached was premature. Huet’s arguments regarding the circumstances of her possession must await further development of the evidentiary record.
Huet’s argument that her status as a non-felon brings her case within the scope of Second Amendment protection is unavailing…. Huet would not violate § 922(g)(1) simply by possessing a firearm. She would, however, violate § 922(g)(1) and § 2 by aiding and abetting a felon to possess a firearm. Count Three charges her with the latter. Thus, the fact that she is not within the class of persons prohibited from possessing a firearm is irrelevant; her right to possess a firearm is not implicated by the charges against her. Moreover, even if part of the conduct that allegedly aided and abetted Hall’s possession involved possession of the firearm by Huet, the Second Amendment does not afford citizens a right to carry arms for “any purpose.” Huet’s right to keep the SKS rifle in her home did not give her the right to facilitate Hall’s possession of the weapon. Otherwise illegal conduct does not somehow become immunized because possession of a firearm is involved in the offense. See, e.g., United States v. Potter, 630 F.3d 1260, 1261 (9th Cir. 2011) (per curiam) (rejecting a defendant’s challenge to his conviction for possession of a firearm in furtherance of drug trafficking and concluding that “[e]ven if [the defendant] kept the firearm also to protect himself and his home,” it could not “seriously be contended that the Second Amendment guarantees a right to use a firearm in furtherance of drug trafficking ”).
According to the New York Times, the answer seems to be “yes.” An article in yesterday’s Times by Michael Luo collects some anecdotes about misbehavior by a few licensees in North Carolina. The Times article has some numbers in it, and it provides the number of North Carolinians with carry permits (240,000). After a thorough search of North Carolina records, the Times finds that about 1% of permitees were convicted of something, other than a traffic offense, over the past five years. Of these 2,400 convictions, by far the largest group is “nearly 900 permit holders were convicted of drunken driving, a potentially volatile circumstance given the link between drinking and violence.”
“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.
In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.
In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much more law-abiding than the general population, and that the rate of gun misuse of any sort (let alone having something to do with violence in public place) is less than one in one thousand.
Instapundit collects some other responses to the Times‘ effort to foment hysteria and prejudice against the persons who exercise the constitutional right to carry firearms for lawful protection.
[This post was corrected in response to reader comments, including the fact that I wrongly wrote that the Times had not reported the total number of licensees.]
The author’s reply to my A Cautionary Note for Readers of “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. Rev. 1521 (2010) raises an interesting point that I thought worth elaborating on.
The reply does take issue with my description of the original article’s claims: “[N]othing in my Article or the passages he selects claims the existence of especially frequent or unduly burdensome regulation of those groups.” I don’t think that sentence in the reply is quite right, but I explain my thinking on that in my Cautionary Note itself. Here, I want to focus a couple of other statements in the reply:
A less-than-careful reader might believe, based on Professor Volokh’s Cautionary Note, that the statements he finds objectionable are of central relevance to my Article. They are not….
I provide ample support for the proposition that aspects of gun possession and use were colored by a racialized, gendered, citizenship-based, and wealth-based understanding of full membership in the American polity, including prohibitions on militia membership for several groups and restrictions on gun ownership by slaves and free blacks. This is the modest claim I intended to defend, and it is neither a novel claim nor an especially surprising one. Further, even this modest claim is ancillary to my thesis….
I also want to contextualize the importance of [Professor Volokh's] clarification to my thesis. Quite simply, nothing in my argument turns on the strong claim that colonies or states exercised their authority to enact heavy prohibitions on gun ownership or use by women and poor whites. I have no interest in pursuing that auxiliary claim, precisely because my argument does not depend on it….
Thus, even incorporating Professor Volokh’s clarifications wholesale, they do not in any way affect my arguments in Part I, which challenges citizenship limitations on textual and doctrinal grounds, or Part III, which constructs and rejects theoretical justifications for citizenship-based exclusions in an individual gun-rights regime; nor do they diminish the strength my argument in Part II, which constructs a narrative of explicit xenophobic and racialized gun prohibitions throughout American history.
I appreciate the author’s point that the factual errors that I believe I’ve found are tangential to the original article’s thesis. I think the author is likely right on that score.
But the problem is that law review articles are often cited as support for precisely such tangential assertions. Judges, professors, student authors, and lawyers who are looking for a discussion of some topic A will often find that discussion as a small section of another article on a related but different topic B. They will then gladly rely on the article’s assertions about A, without any regard to their being tangential to the cited article’s broader point. The important thing for the author of the new piece is that the material he’s found is important to his piece, not that it is important to the original piece that he is citing.
What worried me about the NYU article, and what led me to write the Cautionary Note, is not a concern about whether the article’s main thesis is inadequately supported. Rather, it’s a concern that factual errors, however tangential to the article, may end up being repeated by other authors, who are relying on the NYU article’s assertions.
Some years ago, I noticed several authors making the assertion that indentured servants, and in one instance even women and the propertyless, were routinely barred from owning guns in the Colonies and in the early Republic. All those assertions turned out to rely on Michael Bellesiles’ pre-Arming America work that made such an assertion, especially Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16 Law & Hist. Rev. 567, 574, 576 (1998):
Repeatedly, colonial legislatures passed laws requiring white Protestant adult male property holders to own guns as a support for the local militia. Just so there would be no misunderstanding, such laws forbade other groups from owning firearms…. For the rest of the colonial period [most of the colonial legislatures] enhanced internal security by forbidding indentured servants to own or carry firearms.
I looked hard for sources supporting these assertions, but to the best of my knowledge those assertions are mistaken or (as to the first sentence) at least highly misleading; I know of no colonies or early states that forbade gun ownership by indentured servants, by women, or by non-property-owners. And yet other scholars understandably relied on those assertions, and propagated them further. Who knows how many readers have been inadvertently misled by them? And that’s a danger even as to those readers who have heard about the scandals involving Bellesiles’ Arming America, since they may have seen those assertions in articles written by other, reputable scholars who happened to be relying on Bellesiles.
To be sure, this Bellesiles example involves citation of claims that were indeed pretty central to the original article’s core claims. As I mentioned, the NYU article’s errors are more tangential to its core claims. But, as I said, readers often rely on tangential assertions as much as they rely on central ones. I want to do what I can to point out those errors, so that there will be less reliance. And I wish that the editorial process as to the NYU article had identified and corrected those errors.
Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.
To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:
Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).
Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.
Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.
Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns (“public arms”) for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with “freedom dues” so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.
The author of the NYU article asserts that “arms bearing was considered congruent to voting, holding public office, or serving on juries.” That’s incorrect for “bearing” in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if “bearing” is meant in the restrictive sense of “bearing for militia service.” Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., “Let every man who fights or pays, exercise his just and equal right in their election.” Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.
Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.
Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.
The author’s thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical “gendered,and class-stratified understanding of persons permitted to own guns.” The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.
I’ve just published this article at the Legal Workshop, the online site run by the NYU Law Review and several other journals; the author of the article to which I responding published a gracious reply to my piece.
Here’s the opening of my article, plus a few items from the rest of the piece (which is only a few pages long); please go to the Legal Workshop site to read the rest, including the footnotes, and of course please also read the author’s response to my piece:
I read with interest “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, and I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens. But it seems to me that there may be a mistake in the article’s historical assertions.
The article appears to assert that poor whites, women, and noncitizens were often legally barred from owning guns in the early years of the United States, or at least that they were subject to especially heavy gun controls [emphases added]:
- “[P]recolonial and early colonial gun laws in some states limited such rights [to bear arms] to subsects of the citizenry: white males deemed loyal to state interests.”
- “From the early years of the republic through the mid-twentieth century, explicit and thinly veiled alienage and racial prohibitions helped maintain racial exclusivity in firearms possession.”
- “The pre-Revolution and founding-era firearm restrictions were harbingers for the themes that have consistently pervaded gun regulation…. [S]ince only “First-Class citizens” were allowed to vote, bear arms, and serve on juries, many other citizens — poor whites, women, minors, free blacks — were denied many fundamental rights presently associated with citizenship.”
- “Pre–Revolutionary War gun regulation did not necessarily depend on categories of legal citizenship but rather on a conception of membership in the national community contingent upon race, wealth, and gender.”
- “Prevailing firearm laws in various states allowed for the disarmament of Catholics and poor whites.”
- “By the time of the Constitution’s framing, statutes in the several states made guns a privilege of ‘First-Class Citizens,’ meaning that only select citizen males could legitimately exercise the right to bear arms.”
- “[A]rms bearing was considered congruent to voting, holding public office, or serving on juries — rights associated with each other and denied even to many citizens.”
- “Militia membership and its attendant firearms rights and obligations were not extended to include poor whites until the first decades of the nineteenth century.”
- “This racialized, gendered, and class-stratified understanding of persons permitted to own guns — and exercise other core political rights — began finding legislative imprimatur in immigration and militia regulations [citing sources from the early Republic]…. Individual state constitutions codified restrictions on ‘Negroes, Mulattoes, and Indians’ serving in state militias or expressly limited firearms to ‘free white men.’”
- “This ‘lone-democracy’ syndrome of the framers also explains the relationship between firearms and voting at the founding. Both were rights of ‘First-Class Citizens’ and could be denied to most Blacks, women, and aliens.” [Footnote: This appears to be an assertion that certain people were restricted from owning guns, as the “discussing gun-ownership restrictions in early republic” quotation shows; it does not seem to be just an assertion that they lacked a constitutional right to own guns and were thus vulnerable to such legislative restrictions. Indeed, the analogous behavior to which the passage points -- voting by blacks, women, and aliens -- was actually prohibited in many or nearly all jurisdictions [citations omitted].] Elsewhere, the article refers to this passage using the parenthetical “discussing gun-ownership restrictions in early republic.”
These statements are claims about restrictions on civilian gun possession — about who was “permitted to own guns,” who was “prohibit[ed]” from owning guns, who was subject to “firearms restrictions” and “gun regulation,” whose “disarmament” was “allowed” by various “laws,” and so on — and not merely about who could be excluded from militia duty.
Yet unfortunately, none of the sources that the article cites actually shows that early American laws barred poor whites, women, and noncitizens from owning guns. Perhaps there are such early sources. But the article does not cite them, nor do the sources that the article cites on these matters sufficiently support the article’s assertions…. The article [does cite one contemporary source], which says that “the meaning of the right to bear arms, unlike virtually any other right described in either state constitutions or the federal Constitution, was colored by the inchoate notions of class and rank that shaped American politics in this period.” But, however the “meaning” of the right may have been “colored,” that passage points to no statutes that actually limited gun ownership by women, poor whites, or aliens….
That’s the title of my new law review article, currently in the editing process at the Charleston Law Review. A draft is available at SSRN, and comments are welcome. The final part of the article suggests how the history might inform our modern understanding of Second Amendment rights.
Michael Smith and I have just filed an amicus brief that I drafted for Arming Women Against Rape & Endangerment (AWARE) in the Michigan Second Amendment stun gun case, People v. Yanna. As I noted in April, a Michigan trial court had struck down the Michigan stun gun ban on Second Amendment grounds; the case is now on appeal to the Michigan Court of Appeals.
I quote below the body of the argument in the brief, minus the footnotes; but if you’re interested in the issue, you might just want to read the PDF. The brief is built on the arguments I made in my Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199 (2009), but it also has a much more extended discussion of why the Second Amendment should be read as extending beyond firearms, and in particular to stun guns. Many thanks to Michael Smith — an experienced Michigan appellate lawyer — for all his help with this project!
I. Many People Have Good Reason to Choose Stun Guns or Tasers as Self-Defense Tools.
Michigan rightly allows people to possess and carry guns. See MCL 28.422. But different people have different self-defense needs, and they should be able to choose other means of defending themselves, as well—especially when those means are much less deadly than guns, as is the case for stun guns (electric weapons that require the user to touch the target with the weapon) and Tasers (electric weapons that shoot a probe that delivers the electric shock). See Appellant’s Brief App. VIII (parties’ stipulation that such weapons are “generally nonlethal”).
Some people, for instance, have religious or ethical compunctions about killing. For instance, noted Mennonite theologian John Howard Yoder, noted Pentecostalist theologian David K. Bernard, and the Dalai Lama have expressed the view that while one ought not use deadly force even in self-defense, self-defense using nondeadly force is permissible. Some members of other religious groups, such as Quakers, share this view. Other religious and philosophical traditions, such as the Jewish and Catholic ones, take the view that defenders ought to use the least violence necessary. Some religious believers might therefore conclude that, when fairly effective nondeadly defensive tools are available, they should be used in preference to deadly tools.
Other people might feel they will be emotionally unable to pull the trigger on a deadly weapon, even when doing so would be ethically proper. Thus, for instance, Liqun Cao et al, Willingness to Shoot: Public Attitudes Toward Defensive Gun Use, 27 Am J Crim Just 85, 96 (2002), reports that 35 percent of a representative sample of Cincinnati residents age 21 and above said they would not be willing to shoot a gun at an armed and threatening burglar who had broken into their home. (The fraction was higher for women respondents. Id at 100.) It seems likely that many of the 35 percent feel they would be psychologically unprepared to shoot an attacker, even if they were ethically permitted to do so.
Others might worry about erroneously killing someone who turns out not to be an attacker. Still others might be reluctant to kill a particular potential attacker, for instance when a woman does not want to kill her abusive ex-husband because she does not want to have to explain to her children that she killed their father, even in self-defense. Others might fear a gun they own might be misused, for instance by their children or by a suicidal adult housemate. Still others, such as people with past criminal convictions, may be barred from owning firearms. See People v Swint, 225 Mich App 353, 362; 572 NW2d 666 (1997) (upholding MCL 750.224f’s ban on gun possession by felons be¬cause it “[a]rguably” “does not completely foreclose defendant’s consti¬tution¬al right to bear ‘arms,’ i.e., nonfirearm weapons, in defense of himself”). And even people who own guns may still want to have both a gun and a stun gun or Taser accessible, so that they can opt for a nonlethal response whenever possible, and for a lethal one when absolutely necessary. (This, of course, is part of the reason that police officers carry both kinds of weapons.)
These are not just aesthetic preferences, such as a person’s desire to have a particular gun that she most likes when other equally effective guns are available. These are preferences that stem from understandable and even laudable moral belief systems, emotional reactions, or pragmatic concerns. Members of Arming Women Against Rape & Endangerment generally believe that killing in self-defense is morally proper. But people who take the opposite view should be presumptively free to act on their beliefs without having to forgo effective self-defense tools; and people who have practical reasons to prefer nonlethal self-defense weapons should likewise be presumptively free to have the weapons that they need to effectively defend themselves.
The “Right to Keep and Bear Arms” Extends Beyond Just Firearms.
The Second Amendment and the Michigan Constitution speak of the “right to keep and bear arms,” not of a right to keep and bear guns or firearms. US Const, Am II; Const 1963, art 1, § 6. And the United States Supreme Court, the Michigan Supreme Court, this Court, and courts of other states have treated the right as extending beyond firearms.
Continue reading ‘Amicus Brief in the Michigan Second Amendment Stun Gun Case’ »
That’s the news today from the Ninth Circuit. For more decisions in this case, see here; for more on the panel decision that is now going to be reconsidered en banc (and my views on the decision), see this post. Thanks to Gene Hoffman for the pointer.
By a vote of 272 to 154. (The vote on the motion to recommit was 161 to 263). On the final vote, 44 Democrats voted in favor, and 7 Republicans voted against. H.R. 822 now goes to the Senate. In the previous Congress, a broader bill on interstate carry was narrowly defeated by a filibuster led by Sen. Charles Schumer. Of course whether the bill ever comes up for a vote in the Senate is up to Majority Leader Harry Reid.
In September, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress’s constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here’s short podcast on the subject, with Cato.
HT to Shall Not Be Questioned for coverage of the day’s voting, in which all hostile amendments were defeated.
Yesterday’s Baysden v. State (N.C. Ct. App. Nov. 15, 2011) (2-1) holds that North Carolina’s ban on possession of guns by a felon violates the North Carolina Constitution’s right to bear arms provision as to someone with two over-30-year-old nonviolent felony convictions. This follows Britt v. State (N.C. 2009), which held the same on similar facts; a North Carolina trial court decision from last month, Johnston v. State, held the same under the Second Amendment, and People v. Dewitt (Colo. Ct. App. 2011) seemed to secure an even broader right — sometimes applicable even to criminals whose convictions are more recent — under the Colorado Constitution.
Many other recent decisions have upheld bans on felon gun possession, either categorically (citing language to this effect in Heller) or as applied to people whose convictions were relatively recent (noting that Heller only said that bans on felon gun possession were “presumptively lawful,” and that this presumption might be rebuttable in a proper case). But the North Carolina cases, coupled with the Colorado case, suggest that as-applied challenges brought by people with very old felony convictions might indeed succeed, at least in some courts, and especially if they are brought under state constitutional provisions as well as the Second Amendment. And if a court concludes that the state constitution mandates the restoration of a felon’s gun rights under state law, that should also lift the federal ban on gun possession by that felon, see 18 U.S.C. § 921(20).
For a recent New York Times article arguing that some states might be making it too easy for felons to regain gun rights, see here; but my quick skim of the piece suggests that the objections are mostly to restoration of gun rights for people whose felonies are relatively recent, rather than about 30 years old or more, as in the North Carolina cases.
UPDATE: I just saw State v. Yuckel (N.C. Ct. App. Nov. 15, 2001), decided on the same day as Baysden, in which the same three-judge panel applies the same principles to reach a different result on different facts (some paragraph breaks added):
Defendant was convicted of the non-violent offense of felony larceny in 1998. Although Defendant’s prior felony larceny conviction stemmed from an event that occurred approximately ten years before the incident that resulted in his conviction in the present case, the record also indicates that, since being convicted of felonious larceny, Defendant was convicted of driving while subject to an impairing substance in 2001. As a result, unlike Mr. Britt and like Mr. Whitaker, Defendant has not been able to remain free of further entanglements with the criminal law for an extended period of time.
So held a North Carolina trial court in Johnston v. State (Oct. 24, 2011). Richard Johnston had been convicted of “felonious receipt of stolen property and conspiracy to commit grand larceny” in 1978, and pled no contest “to fraudulent setting fire, conspiracy, false statement to procure, and conspiracy to receive, receiving, conspiracy to commit larceny and accessory before the fact” in 1981. (The underlying crimes occurred in 1976, and “did not involve either violence or the use of a firearm.”) Since then, Johnston has apparently led a law-abiding life, setting aside “routine traffic citations and two hunting citations, one of which was dismissed”; he is now 69 years old.
The trial court concluded that, when Heller said that bans on felon possession of guns were “presumptively valid,” this presumption could be rebutted, and in this case it was rebutted, given the age of Johnston’s conviction and his apparently blameless life since then. The court also suggested that its analysis might also apply to people whose last convictions were as recent as seven years ago, especially when the convictions were for nonviolent crimes; but it didn’t have occasion to issue any specific holding on that point.
The court also concluded that North Carolina’s firearms rights restoration law — which allows firearms rights to be restored only when a person has only one felony conviction, that felony is a nonviolent felony, and the conviction is at least 20 years old — violates the Due Process Clause, because it “provides no procedural mechanism by which a person subject to it may be heard on the issue of … her likelihood to commit future crimes of violence using a firearm before being deprived of her fundamental liberty interest” (p. 23). (I’m not sure that this is a sound argument: If a permanent ban on gun ownership by all felons who have more than one felony conviction is unconstitutional on Second Amendment grounds, the due process analysis is beside the point, but if it is unconstitutional as to certain felons, the objection is to the substantive prohibition and not to the procedure.)
Finally, though the court favorably cites Britt v. State, a 2009 North Carolina Supreme Court case that held that a felon whose crimes were similarly far in the past regained his constitutional right to bear arms, the Johnston decision rests on the Second Amendment, and Britt relied only on the North Carolina Constitution’s right to bear arms provision. This makes Johnston potentially more influential in other jurisdictions, assuming it is appealed and affirmed on appeal.
The opinion is also quite long and pretty detailed in setting forth its arguments; if you’re interested in the subject, read the whole thing.
A pre-2009 Washington state law, under which Yasin Ibrahim was convicted, required aliens to get a license . (A new statute sets up a different licensing scheme for alien gun owners, but that statute wasn’t involved in this case.) Ibrahim was prosecuted under the old law, for having an unlicensed gun. Today’s State v. Ibrahim (Wash. Ct. App.) holds that the old law violated the Equal Protection Clause by unconstitutionally discriminating against noncitizens. And in the process the court says that the law did this “by denying [legal aliens'] Second Amendment right to keep and bear arms.”
This independent focus on the Second Amendment is important because the Supreme Court has read the Equal Protection Clause as barring most (but not all) state discrimination against noncitizens; the federal government remains generally free to discriminate against noncitizens. But if the Washington Court of Appeals is right that legal aliens are protected by the Second Amendment, that means that even the federal government may not ban them from owning guns.
Current federal law lets immigrant aliens possess guns, but bars gun possession by legal aliens who don’t have immigrant status. (See 18 U.S.C. § 922(g)(5)(B).) This category of people generally barred from possessing guns (with some exceptions for hunting and sporting purposes) includes not just tourists but also long-term residents, such as students or people working here on nonimmigrant visas. So if federal courts follow the Washington Court of Appeals’ view of the matter, that prohibition might be vulnerable on Second Amendment grounds.
Two notes: (1) As it happens, the state Department of Licensing refused to issue alien gun licenses under the pre-2009 law, but that wasn’t expressly discussed in the opinion. (2) The opinion talked about the pre-2009 law as requiring “registration” of a gun, but as I read it the law actually required a license.
I’ll be on a The Second Amendment in the Courts After Heller and McDonald panel Nov. 12, 2011 at the Appellate Judges Education Institute Summit in Washington, D.C. The conference (cohosted by the ABA Judicial Division Appellate Judges Conference and SMU School of Law) generally sounds very interesting, and is open to lawyers as well as to judges and staff attorneys. The conference speakers include Justice Sotomayor, Scott Turow, and many illustrious judges, professors, and practitioners (including our own John Elwood). For more, including the full agenda, see here.
Ten of Arizona’s 15 county sheriffs, including Democrats and Republicans, have called for the appointment of a federal special prosecutor in the Fast & Furious scandal.
An excellent graph at No Lawyers, Only Guns and Money, shows the story. We’ve come a long way, baby.
And there’s still a long way to go. In Illinois, the right to carry is completely forbidden by law. In eight other states, handgun carry licensing laws are highly arbitrary. With a few exceptions (e.g., upstate New York, rural California, 2 of the 3 counties in Delaware), in those state rights are routinely denied, so “may issue” amounts to “will not issue.” It is not acceptable that nearly one-third of the nation is still denied a fundamental civil and natural right.
Today the U.S Court of Appeals for the D.C. Circuit released a divided opinion in Heller v. D.C. . In this case, Dick Heller (of the Supreme Court’s Heller decision) is challenging the Firearms Registration Amendment Act of 2008 (FRA), a statute adopted by the District of Columbia in response to the Supreme Court’s decision invalidating the District’s prior gun controls. Whereas Heller had prevailed in the D.C. Circuit before, this time he was not so lucky. The panel majority, consisting of Judges Ginsburg and Henderson, largely rejected his challenge to D.C.’s ban on some semi-automatic rifles and new gun-registration requirements. Judge Kavanaugh wrote a lengthy dissent.
So explains John Lott, in an opinion column for Foxnews.com. Not a surprising result. The McDonald v. Chicago amicus brief I wrote for the International Law Enforcements Educators & Trainers Association (and other law enforcement organizations, and criminologists) showed that after Chicago enacted its handgun ban, its violent crime rate rose sharply. Pre-ban, Chicago had a violent crime rate 1.12 times greater than the violent crime rate of the 24 other largest cities. (That is, Chicago’s violent crime rate was 12% higher than that of the 24 other cities.) Post-ban, Chicago’s crime rate soared immediately, and remained 67% higher than the other large cities. The possibility that Chicago’s sudden and long-standing deterioration compared to other large cities is less than 1 in 100,000. Details are presented at pages 17-22 of the brief, and the appendices.
Currently before the Illinois Supreme Court is People v. Aguilar, which raises the question of whether Illinois can, consistently with the Second Amendment, prohibit the carrying of firearms for lawful self-defense in public places. Illinois is the only state with such a blanket prohibition. Illinois state law bans open and concealed carry, and has no procedure for licensing either. The only people allowed to exercise the right to defensive carry are persons in some specially-favored categories, such as elected officials and security guards.
Oklahoma City Univ. law professor Michael O’Shea has written an amicus brief in the case, on behalf of co-authors of the forthcoming law school textbook Firearms Law and the Second Amendment (Aspen, 2012). O’shea’s co-authors Nicholas Johnson (Fordham) and I both made some suggestions for the brief, but the vast majority of the work was done by O’Shea. As the brief demonstrates, McDonald and Heller make it clear that the Second Amendment protects a right to carry arms (except in “sensitive places”). The brief does not argue in favor of a particular system for licensed or unlicensed carry. Rather, our point is that a complete prohibition is facially unconstitutional; there is no need to get into the standard of review issues that would be involved in a regulation (as opposed to a complete prohibition) of the exercise of the right to bear arms.
Very early next year–in time for 2d semester classes in the 2011-12 academic year–Aspen Publishers will publish the first law school textbook on the the Second Amendment. The title is Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The co-authors are Nicholas Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me.
Below the fold is the full Table of Contents and Preface for the book. (Pasting the Word document into the blog format significantly altered many of the indents, line spacing, and outline numbering for chapter subdivisions, so the TOC below does not look exactly like the TOC of the book itself.) Because the textbook is currently in the production process, review copies are not yet available. Indeed, the Aspen website’s promotional page for the book is still several weeks away. However, if you might use the textbook next semester, and would like to see some chapters, just contact any of the co-authors, and we can mail them to you.
The 11 chapters of the printed textbook proceed chronologically, from ancient Rome, Greece, and China, all the way to the post-Heller cases. Four additional, on-line only chapters cover some special topics. Those electronic chapters will be available to all students and professors using the textbook.
Besides being sold as a conventional hardback, Firearms Law will also be available in individual electronic chapters. So if you are teaching a constitutional law course and would like to include a 2 or 3 week unit on the Second Amendment, your students could buy chapter 9 (Heller and McDonald) plus chapter 11 (post-Heller cases in the lower courts). Or if you’re teaching an advanced criminal law class, you might want to have your students buy chapter 8, which covers the modern criminal law of gun control, particularly under the federal Gun Control Act.
Continue reading ‘New law school textbook on the Second Amendment and firearms regulation’ »
Yesterday’s People v. Dewitt (Colo. Ct. App.) illustrates a very different approach to the right to keep and bear arms under the Colorado Constitution than has been used under the U.S. Constitution (and other state constitutions):
On the morning of September 18, 2009, defendant walked from his apartment to a nearby King Soopers to buy groceries. He paid at a self-checkout cash register, and when he did not receive discounts on certain items, he went to the customer service counter to demand a refund. Defendant yelled at the employees on duty, used profanities, and paced in such a manner that his handgun, worn under his jacket in a holster, was visible. He continued this aggressive behavior for several minutes, prompting one employee to call 911 to report the disturbance.
When the police arrived, they checked defendant’s criminal record. They arrested him for POWPO when they learned that he was a twice convicted felon — in 1985, he pleaded guilty to giving false information to a pawnbroker, and in 1988, he pleaded guilty to attempted distribution of a controlled substance.
Defendant was ultimately charged with two POWPO [possession of a weapon by a previous offender] counts and one menacing count based on the King Soopers incident. The menacing count was dismissed on the morning of trial, and defendant was convicted by a jury of the POWPO counts. The trial court sentenced him to a six-month prison term for each count, to run concurrently, and this appeal followed….
[T]he trial court erred by refusing to give [defendant's] tendered jury instructions regarding the affirmative defense of the right to bear arms. We agree.
Under the Colorado Constitution, a person has the right “to keep and bear arms in defense of his [or her] home, person and property.” Colo. Const. art. II, § 13; see People v. Blue, 190 Colo. 95, 103, 544 P.2d 385, 391 (1975). [Footnote: Defendant expressly bases his contention solely on article II, section 13 of the Colorado Constitution. Accordingly, we need not address any issues regarding the Second Amendment to the United States Constitution.] Thus, a defendant charged with POWPO may raise as an affirmative defense that he or she possessed a weapon for the constitutionally protected purpose of defending his or her home, person, or property. People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977); see also CJI-Crim. 7:63 (1993). As long as there is competent evidence in the record of a constitutionally protected purpose, a defendant is entitled to such an affirmative defense, and it will be for the jury to decide the issue of the defendant’s purpose in possessing the weapon.
A defendant need only present “some credible evidence” in support of the affirmative defense, which is another way of stating the “scintilla of evidence” standard. The evidence necessary to justify an affirmative defense instruction may come solely from the defendant’s testimony, however improbable. If the defendant meets this standard, the prosecution then has the burden to disprove the affirmative defense beyond a reasonable doubt….
Based on our de novo review of the record in this case, we conclude defendant’s testimony was sufficient to support the tendered affirmative defense instructions on his constitutional right to bear arms. Defendant testified that he regularly walked from his apartment to the King Soopers in question armed with his handgun. When asked for his reason for purchasing and carrying the gun, including on the morning of his arrest, defendant testified several times that it was for “self-defense.” He also stated that he had “concerns for [his] personal safety” and for his “property,” both in his home and in his neighborhood. According to defendant’s testimony, he was aware of reports of recent muggings at the King Soopers, and he had “seen some things in [his] own neighborhood that just … put the alert on, put [him] in a code yellow … more of an alert status, where [he] used to be more relaxed and never worried about anything.” In addition, defendant testified that someone had attempted to break into his apartment twice in 2009. Thus, defendant not only testified to a general fear for his personal safety, but also tied his fear to specific trends of violence and incidents in the areas where he regularly walked and in the stores that he regularly visited, including the King Soopers store.
Viewing this testimony in the light most favorable to defendant, we conclude it constitutes some credible evidence that he carried his handgun for the constitutionally protected purposes of defending his person and his property.
This case is distinguishable from People v. Barger, 732 P.2d 1225, 1226 (Colo. App. 1986), relied on by the People and by the trial court in its ruling. In Barger, the defendant chose to carry a gun into a bar, but there was no evidence in the record that he reasonably feared for his safety on his way to the bar or in the bar itself….
As the citation to the 1977 Colorado Supreme Court case People v. Ford shows, this doctrine isn’t new in Colorado; but I hadn’t seen the Ford doctrine much referred to recently. This case makes clear, though, that this interpretation of the state constitutional right to keep and bear arms is still being followed in Colorado. For the one other recent state appellate case recognizing some felons’ right to keep and bear arms, see this discussion of Britt v. State (N.C. 2009), though the right secured there seems much narrower than the one secured by DeWitt (and Ford) in Colorado.
Of course, felons in Colorado get only limited benefit from this ruling, because they are still generally barred by federal law from possessing a gun, and the Colorado Constitution doesn’t affect the application of that federal law. But in practice, a defense against a state prosecution remains useful even if it won’t work against a federal prosecution, because many such felon-in-possession cases are brought only under state law by state prosecutors (since there are many more such prosecutors in Colorado than federal prosecutors).
The case is United States v. Guerrero-Leco (4th Cir. Sept. 15):
Daniel Guerrero-Leco, an alien illegally in the United States, pled guilty to possessing a firearm in violation of 18 U.S.C. § 922(g)(5), and the district court sentenced him to a 24-month term of imprisonment. Before pleading guilty, Guerrero-Leco unsuccessfully moved to dismiss the indictment, arguing that § 922(g)(5) [which criminalizes gun possession by illegal aliens –EV] violates the Second Amendment. His guilty plea is conditioned on his right to appeal the denial of his dismissal motion, and that is the matter now before us.
Guerrero-Leco’s argument is premised on District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Court held generally that the Second Amendment confers an individual right to bear firearms for self-protection. After this appeal was filed, we held in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), that a two-prong analysis is appropriate to determine whether a statute or regulation violates a defendant’s Second Amendment right to bear firearms. As we explained:
The first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny.
