District Court on the Second Amendment:

Industrious v. Cauley (E.D. Ky. Oct. 1), rejects yet another Second Amendment challenge to felon-in-possession laws -- a result that is correct under D.C. v. Heller, and also seems justified in this particular case on various procedural grounds that the court mentions. But at the end, the court says -- citing the D.C. Circuit decision that Heller affirmed, Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), and that petitioner relied on more than he did on Heller --

Finally, the Court notes that the Parker decision concerned gun restriction laws and the unique legal status of the District of Columbia, as opposed to the status of “States.” See Parker, 478 F.3d at 406 (“The Second Amendment’s “character and aim” does not require that we treat the District as a State. The Amendment was drafted in response to the perceived threat to the “free[dom]” of the “State[s]” posed by a national standing army controlled by the federal government .... Accordingly, both the Supreme Court and this court have consistently held that several constitutional provisions explicitly referring to citizens of “States” do not apply to citizens of the District.”). Parker does not assist Industrious in this § 2241 proceeding.

But the quote from Parker is from the dissent, not from the majority opinion. The majority expressly held that the Second Amendment did apply to citizens of the District. And more broadly, the majority's reasoning recognizing an individual right to possess guns was not limited to D.C. residents, or tied to "the unique legal status of the District of Columbia" -- it applied equally to federal laws affecting U.S. citizens throughout the country, as does the Heller decision, which affirmed the D.C. Circuit majority opinion. (Note that the Industrious case involved a conviction for violating a federal law.)

As I said, this doesn't affect the bottom line, given Heller's assertion that bans on felon possession of guns are constitutional, and given the apparent procedural barriers to Industrious's claim (I assume the district court is right about those). But it does show a pretty serious error in the district court's interpretation and citation of the Parker decision, and in the district court's understanding of current Second Amendment law.

I should note, before people start casting political aspersions, that Judge Wilhoit, who wrote the opinion, was appointed by President Reagan in 1981.

It looks like that "Finally..." paragraph was tossed in as an afterthought. Unfortunate mistake.

It's a bit strange that the petitioner relied on the D.C. Circuit case (petition was filed 8/29/08) and that the judge didn't mention the Supreme Court case.

I'm not sure I entirely understand the "'Actual Innocence' Claim Without Merit" section either.
10.6.2008 2:24pm
What an odd little memorandum. Issued October 1, 2008, but does not cite Heller's discussion of felon-in-possession laws at all to dispose of the §2241 claim on the merits. Rather, it reads as though Parker had never gone to the Supreme Court (and mis-reads the Parker holding, to boot). While I'm not shocked an incarcerated pro se petitioner would omit recent Supreme Court precedent on point (particularly when it cuts against him), the court's memorandum should never be that sloppy. Even if the Judge's least-senior law clerk (or maybe a part-time intern law student?) was told to write something disposing of the petition with essentially no "adult supervision," one would have hoped he/she at least would have AutoCited (if not Shepardized) Parker and noticed it had some subsequent history. Or that the Judge would have at least skimmed a draft of the memorandum and noticed its glaring faults before signing it.

At bottom, this is an incredibly careless and embarrassing memorandum, and that's objectively true regardless whether the Judge was appointed by Reagan or the Easter Bunny (or even Presidents-elect-someday Obama or Palin, gosh durn-it!).

Chambers should withdraw this and re-issue a corrected memorandum. Based on the facts set forth (assuming they're more accurate than the legal analysis), it's still the right result, for pretty straightforward reasons:

1. Felon-in-Possession laws aren't generally invalidated by the Second Amendment, per the teaching in Heller (albeit for reasons more fully explained by some of the Heller amicii than by Justice Scalia); and

2. §2241 isn't available for this type of relief. Although for the reasons in #1 above, the movant also would not prevail under §2255, even assuming a post-Heller successive petition might be permitted by §§(h)(2).
10.6.2008 3:10pm
Soronel Haetir (mail):
Why should we be surprised by these kinds of errors? Both the majority and Stevens' dissent in Heller got the basic facts of Miller wrong, writing that it upheld a conviction.
10.6.2008 3:24pm
T Gracchus (mail):
I don't see why the facts should be an obstacle to casting aspersions, political or otherwise.
10.6.2008 3:45pm
J. Aldridge:
A good 2A ruling for a change.
10.6.2008 3:58pm
Brett Bellmore:
The game of Telephone begins anew. The circuits are beginning to do to Heller what they did to Miller, (Starting small, of course.) and unless the Supreme Court revisits the subject fairly soon, they'll transform a victory for 2nd amendment rights into a defeat.
10.6.2008 7:24pm
cboldt (mail):
-- Both the majority and Stevens' dissent in Heller got the basic facts of Miller wrong, writing that it upheld a conviction. --
Yeah. That's not the only error. Scalia added at least one Miller misconstruction that has substantive effect.
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

They must figure very few people will understand the holding and rationale of the Miller case.
It's pretty sad to realize that the majority of SCOTUS has about as much intellectual rigor as Congress.
10.6.2008 7:40pm
Brett Bellmore:
Please, I'm moderately confident that Scalia has enough intellectual rigor to at least know that he got this stuff wrong. He just couldn't bear to uphold a civilian right to military arms, which is what getting Miller right would have entailed. I'm just glad he couldn't bear to entirely destroy the 2nd amendment, either.

Any ruling that leaves the 2nd amendment without effect is a good ruling, eh, Aldridge?
10.6.2008 8:17pm
cboldt (mail):
-- He just couldn't bear to uphold a civilian right to military arms, which is what getting Miller right would have entailed. --
It was a gratuitous addition or extension, entirely unnecessary to reach a conclusion in the Heller case.
But yeah, I guess you're right. His misconstruction wasn't due to shortage of intellectual rigor - it was a deliberate stripping of a public power "guaranteed" by the Constitution.
10.7.2008 10:57am
J. Aldridge:
Brett Bellmore: said: "Any ruling that leaves the 2nd amendment without effect is a good ruling, eh, Aldridge?"

The 2A has had no effect for 200 years because like Madison said, were either declaratory or restrictive.
10.7.2008 12:40pm