The Second Amendment and Sentence Enhancements for Firearms Use or Carrying in Connection With Crimes:

Another early post-Heller case, Chaleunsak v. United States, 2008 U.S. Dist. LEXIS 50852 (M.D. Tenn. July 1), quickly disposes of a challenge to 18 U.S.C. § 924(c)(1), which provides a multi-year enhancement when someone "during and in relation to any [federal] crime of violence or [federal] drug trafficking crime" "uses or carries a firearm":

Next, Chaleunsak contends that the § 924(c) charge was unconstitutional because he had a Second Amendment right to keep and bear arms. This claim is barred by the appellate waiver contained in the plea agreement. Even if the claim is not barred, the Sixth Circuit rejected the same contention in United States v. Helton, 86 Fed.Appx. 889, 892 (6th Cir. 2004) (holding § 924(c) constitutes reasonable limitation on defendant's Second Amendment rights). Consequently, this claim will also be denied as without merit.

Helton, though, is not binding precedent even within the Sixth Circuit (that's why it's in Fed. Appx. and not F.3d). It's also pre-Heller, though at least it doesn't rely on the states'-rights/militia-rights theory that Heller rejected; here's the relevant excerpt from Helton:

Finally, Helton urges us to adopt the reasoning of the Fifth Circuit's opinion in Emerson, and to hold that § 924(c) unduly infringes on Second Amendment rights. Emerson, of course, is not binding on this court, and, in any event, we note that it contemplates that Second Amendment rights may be subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Emerson, 270 F.3d at 261. Because we agree with the district court that § 924(c) constitutes just such a reasonable limitation, Helton's Second Amendment claim must fail.

So it seems to me the district court should have done its own analysis, even a cursory one, rather than just relying on the nonprecedential and cursorily reasoned pre-Heller decision in Helton.

As it happens, though, there is a good deal of caselaw on the subject of how an individual right to bear arms should affect sentence enhancements for using or carrying a firearm in connection with a crime: It's chiefly from the Washington Supreme Court, which for the last two decades has handed down a bunch of decisions under its state constitutional right to bear arms provision. I don't endorse them all, but at least they are a substantial body of law with a decent amount of analysis. Here's the most recent one on sentence enhancements, State v. Neff, 181 P.3d 819 (Wash. 2008):

A court may add time to a sentence if a defendant was armed with a firearm while committing a crime. RCW 9.94A.533(3). A person is armed while committing a crime if he can easily access and readily use a weapon and if a nexus connects him, the weapon, and the crime. State v. Schelin, 55 P.3d 632 (2002); State v. Valdobinos, 858 P.2d 199 (1993).

This nexus requirement is critical because "[t]he right of the individual citizen to bear arms in defense of himself, or the State, shall not be impaired ...." Wash. Const. art. I, § 24. The State may not punish a citizen merely for exercising this right. The State may punish him for using a weapon in a commission of a crime, though, because a weapon can turn a nonviolent crime into a violent one, increasing the likelihood of death or injury.

When a crime is a continuing crime — like a drug manufacturing operation — a nexus obtains if the weapon was "there to be used," which requires more than just the weapon's presence at the crime scene. This potential use may be offensive or defensive and may be to facilitate the crime's commission, to escape the scene, or to protect contraband. In every case, whether a defendant is armed is a fact specific decision.

Since the issue is fact specific, the facts and holdings of our prior cases are helpful. In State v. O'Neal (2007), officers searched the defendants' methamphetamine laboratory. Besides evidence of drug manufacturing, the officers found over 20 guns, body armor, night vision goggles, and a police scanner. A jury found the defendants guilty of manufacturing drugs and added a firearm enhancement. We affirmed the firearm enhancement. Since the weapons were easily accessible to protect the drugs, and since the defendants kept a police scanner in the laboratory, the jury could find that the defendants used the guns to protect the drugs, and so we upheld their conviction.

In State v. Eckenrode (2007), the defendant called the police, alerting them to an intruder in his house. He told the dispatcher he was armed and ready to shoot the intruder. When the police arrived, he was outside his home, sitting on his porch. Police investigated and found he was growing marijuana and had two firearms in his house. A jury convicted him of drug charges and gave a firearm enhancement. We affirmed his conviction and enhancement. The defendant told the dispatcher he was armed. Police found two weapons, one loaded, and a police scanner in the house. Under those facts, a jury was allowed to infer that the defendant armed himself to protect his criminal enterprise and so was allowed to find him armed while committing the crimes.

In Valdobinos, by contrast, police arrested the defendant when he offered to sell cocaine to an undercover officer. They searched his house, finding cocaine and an unloaded rifle under his bed. A jury convicted him of drug charges and a firearm enhancement. We reversed the enhancement, holding the jury could not infer from an unloaded rifle near the cocaine that the defendant was armed. Notably, however, no evidence indicated the gun was in the house to protect the drugs, as indicated by the presence of loaded weapons and police scanners in O'Neal and Eckenrode.

Here, the trial judge found that "[i]n the defendant's garage the Sheriff's department recovered ... a loaded Smith and Wesson .357 handgun, a Colt .45, [and] a Davis model P.380 firearm." He found Neff "was armed because the guns ... where [sic] readily available for offensive or defensive purposes." On these findings, he held "[t]hat defendant was armed with a firearm while he was manufacturing methamphetamine." Based on the record, a rational fact finder could agree. When they searched Neff's garage, police found two loaded pistols in a safe, which also contained four bags of marijuana. Neff held the keys to the garage. The police found a third pistol hanging from a tool belt in the garage's rafters. While it is unclear from the record whether Neff could easily reach the gun, we construe the fact in the State's favor. Finally, the officers found two security cameras and a monitor in the garage on which to view live feeds. An officer testified that the monitors were for countersurveillance.

It seems to me that the Washington Supreme Court's rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement. But in any case, the deeper point is that some of these novel Second Amendment questions aren't novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense.

Agreed. Which begs the question. Why such "sloppy" - or maybe "scanty" - research by appellate court clerks? Why isn't this supportive body of case law put to better use by arguably "higher" levels jurisprudence? What is missing here?
7.10.2008 10:42am
The notion of requiring a nexus between the firearm and the crime is quite important. Absent some showing that the possession was in furtherance of a crime, such sentence enhancments amount to random punishment for the exercise of a Constitutionally protected right.

This would be sort of like sentence enhancements for having a printing press. If one were to use the printing press to print flyers advertising the unlawful activity, one could perhaps argue for a sentence enhancement, but to tack on a sentence enhancement for anybody who committed any crime and happened to also own a printing press, would certainly offend the 1st amendment (absurdly so), and so it should be with the 2nd.
7.10.2008 10:55am
Brett Bellmore:
We're going to be seeing a lot of this; Every circuit except the DC circuit is committed to reading the Second amendment out of the Constitution, (The Fifth might have acknowledged it as a right in Emerson, but didn't see fit to treat it as a right.) and is going to respond to Heller with massive resistance.
7.10.2008 12:22pm
martinned (mail) (www):
@Brett Bellmore: So you think armed robbery and non-armed robbery should be punished the same?
7.10.2008 12:48pm
Brett Bellmore:
I think merely owning a gun should have nothing more to do with the sentence you receive for a crime than merely owning a book, or any other inanimate object possession of which is unrelated to the crime.
7.10.2008 1:52pm
Mark Jones:
The problem I see here is that it looks like the courts are reading it as "if the defendant is guilty of a crime AND a firearm was available for us" the sentence enhancements apply. But what if the defendant was carrying a firearm for the completely lawful purpose of self-defense even while engaged in a criminal activity? Suppose he carries routinely but engages in criminal acts only rarely--but gets caught red handed.

Does THAT quality as a "nexus" justifying the enhancement? I suppose one could claim that "if you commit crimes at any time, ever, you can't use self-defense as a justification for carrying a weapon. But given just how many felonies are on the books these days, it seems to me that a LOT of people with no intent to use a firearm criminally could be caught up in that net.
7.10.2008 2:04pm
Snowdog99 (mail):
It's all pretty much a moot point, since statistics show that even previously convicted felons are rarely subject to "sentencing enhancement" under Federal gun crime laws (but I know how lawyers just ADORE mental masturbation).

I personally know of several cases where this happened; both involving drug trafficking. In one case, the suspect fled from the police with cocaine in his automobile. He was carrying a handgun which he tossed from the car during the chase (police later retrieved it). The police gave up the chase to protect "public safety" (they were in the middle of a very rural area, go figure). He was later arrested at his home after disposing of the coke.

He had multiple felony convictions, including violent offenses, drug trafficking, etc. In the end, he was only charged with felony fleeing and alluding (his fourth such offense) - no gun charges, which, as I understood, could have tacked about 5-years onto his sentence. Ironically, his sentence was handed down in a supposedly "conservative" jurisdiction in Michigan.

In the end, the offender was convicted of the fleeing charge, received a 3 month sentence (served about 18 months), a $800 fine, and had his license suspended for 1 year. Of course, he continued to drive, and repeated calls to the police to report this were ignored.

On an up-note, he was eventually killed in a revenge-hit about 6 months later (he had killed another dealer). I guess if the justice system and law enforcement fail to do their jobs, perhaps we could count on other criminals to take care of the problem for us?
7.10.2008 2:34pm
martinned (mail) (www):
@Brett Bellmore: Fair enough. Hence the discussion of "nexus" above.

@Mark Jones: Then again, what about those felonies that tend to put one in more urgent need of self-defence than one otherwise would be. Say, drug trafficking. You don't, for the activity itself, need a gun for that, but since such an enterprise tends to put one in harms way from time to time, carrying a gun for self-defence should be considered as having a pretty reasonable connection to the felony one is committing.
7.10.2008 3:18pm
martinned (mail) (www):
Afterthought: Then again, if a gun is used in the commission of a felony for self-defence purposes only, there is much less of a rationale for punishing such a felony more harshly. (Armed robbery should be punished more severely than non-armed robbery, but does the same logic apply to the drug trafficker who carries a gun in his pocket for self defence against other crooks?)
7.10.2008 3:19pm
Not a Law Profezzor:
924(c) should be completely safe even after Heller. You simply do not have a Constitutional right to engage in otherwise protected conduct when it is an instrumentality of a crime. And this should pass even a strict scrutiny standard of review, given the fairly obvious nexus to enhanced likelihood of death or serious bodily injury when a defendant "during and in relation to any crime of violence or drug trafficking crime...uses or carries a firearm..."

Or to put it differently, if we take Justice Scalia's dicta at face value that felon-in-possession laws are clearly not impacted by Heller, neither should this sentencing enhancement be impacted. Conversely, if the Second Amendment prohibits legal differentiation of either the definition of crimes or enhanced punishments for crimes when a gun is an instrumentality, then the same form of analysis would have to invalidate wire and mail fraud statutes on the ground that you have a First Amendment right to communicate even fictitious information to others.

Of course, there remains a factual question as to whether the firearm was actually used, carried, or possessed in furtherence of the crime. The factual issue has always existed in these cases, and there's already a good amount of case law on point. Thus, I doubt we'll ever see someone getting the enhancement for, say, having a legal hunting rifle locked in their basement gun safe while beating up the Federal census-taker who rang their front doorbell too early on Saturday morning, in violation of 18 U.S.C. §111(a) (regardless whether the enhancement is under 111(b) or 924(c)).

And I just can't even get very excited about the cursory (so far) analysis of this point in post-Heller cases. Unlike students answering law school final exam hypotheticals or academics trying to play the "publish-or-perish" game, overworked judges shouldn't be compelled to do much analysis of the legal nuances when faced with obvious losing arguments.
7.10.2008 4:23pm
Dilan Esper (mail) (www):
Part of the problem with these early cases is they give the appearance of defendants just throwing in an inadequately briefed Heller claim as part of the kitchen sink of arguments.

I suspect that when we see better-briefed Heller claims, we will see more thought out decisions.

I suspect, however, that the federal firearms enhancement statutes are quite safe, for the same reason that Wisconsin v. Mitchell was a unanimous decision in the First Amendment context.
7.10.2008 5:39pm
Doug B. (mail) (www):
Eugene, in this post I ask whether you'd be comfortable with a "nexus" to criminality justifying sentencing enhancements for exercising First Amendment rights:

Suppose a tax protestor gives a big speech about how the federal government wastes tax dollars before destroying a mailbox as part of his protest: though the protestor can be prosecuted and sentenced for destroying federal property, can Congress demand that his sentence be enhanced for the otherwise protected speech that has a nexus to his crime? Similarly, could an anti-abortion protestor prosecuted for trespassing on the private property of an abortion clinic have his sentence enhanced for engaging in a prayer while trespassing?
7.10.2008 8:07pm
Brett Bellmore:

I suspect, however, that the federal firearms enhancement statutes are quite safe,

Facially? Yes. But as applied? I think they might be in for some problems where the "use" doesn't involve actual use, but only incidental ownership.
7.11.2008 11:01am
...if the Second Amendment prohibits legal differentiation of either the definition of crimes or enhanced punishments for crimes when a gun is an instrumentality, then the same form of analysis would have to invalidate wire and mail fraud statutes on the ground that you have a First Amendment right to communicate even fictitious information to others.
First, I don't think the Courts will invalidate sentence enhancements for use or possession of a firearm during commission of a qualifying crime under 924(c)(1) in light of Justice Scalia's dicta.

But linking First and Second Amendment doctrine in this way could get messy in a hurry. On the one hand, if you want to find guidance as to the scope of the Second Amendment from First Amendment juisprudence, you could argue that the First Amendment analogy is relevant to upholding Second Amendment distinctions between the level of protection one has for using a firearm for lawful purposes versus during a crime. There is caselaw suggesting that deliberately false statements of fact are not Constitutionally-protected speech at all, such as Illinois ex rel. Madigan v. Telemarketing Associates and Gertz v. Robert Welch. Thus, a court could bolster the argument that possession of a firearm in connection with a crime is outside the scope of the Second Amendment right, by analogy to some speech cases.

On the other hand, the problem with the First Amendment is that the lines are, to say the least, fuzzy. Even some knowingly false speech is protected, e.g., New York Times v. Sullivan. Which indeed suggests that if the Court invalidates criminal firearms use enhancements as violating the Second Amendment right, at least every offense in Chapters 47 (fraud/false statements), 75 (obstruction of justice) and 79 (perjury) of Title 18 for which expressive conduct is an element of the offense might be questioned as to whether it is appropriate to criminally punish conduct that is otherwise Constitutionally protected, simply because that conduct is an element of the crime or sentence enhancement.

This would be enough of a line-drawing mess that I have a hard time believing a court would ever open Pandora's Box by going down this road.
7.11.2008 11:48am
John Adams (mail):
I have what I think is an interesting case. I had a client who was charged with receiving a firearm while under a felony information. 18 U.S.C. 922(n). The felony was a non-violent one and he was on bond. As a condition of his bond the judge did not restrict his possession of a firearm. Because he feared for his safety, he bought a gun at a local pawnshop. After his federal indictment, I moved to dismiss based upon a violation of the 2nd Amendment. The district court denied the motion without a hearing. The Court of Appeals affirmed stating that the 2nd Amd is a collective not a individual right. What are you thoughts on this issue post-Heller?
7.11.2008 1:31pm
Dilan Esper (mail) (www):
Facially? Yes. But as applied? I think they might be in for some problems where the "use" doesn't involve actual use, but only incidental ownership.

Perhaps. But (1) I could very much see the Court drawing a bright line rule as they have basically done with First Amendment-related sentencing enhancements; and (2) my understanding is that the vast, vast majority of gun enhancements are in situations where there really isn't much doubt about the nexus, so at most, we are talking about a rule that trims a little bit around the edges.
7.11.2008 4:03pm
the vast, vast majority of gun enhancements are in situations where there really isn't much doubt about the nexus
Even if that's true, you surely aren't disagreeing with those of us who insist that nexus must be demonstrated, rather than merely asserted, are you?
7.11.2008 11:54pm