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Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:

I blogged about this issue three weeks ago. Under 18 U.S.C. § 3142(c)(1)(B), someone who is charged with possessing child pornography -- among other crimes -- and is freed on bail must be ordered not to possess any firearm. In late December, U.S. v. Arzberger (S.D.N.Y.) concluded that this violated the Due Process Clause, largely because the right to bear arms is protected under the Second Amendment.

A few weeks later I found another opinion, U.S. v. Kennedy (W.D. Wash.) (Donohue, M.J.), which holds the same thing (it was decided earlier than Arzberger, but placed online later). Here's the magistrate judge's reasoning, which the district judge (Richard A. Jones) approved without further analysis (paragraph break added):

Pretrial Services recommends that Defendant be prohibited from possessing a firearm, which is a mandatory condition under the Walsh Act. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created an individual right to possess firearms. In footnote 27, Justice Scalia noted that a law regulating a specific, enumerated right such as the right to keep and bear arms was subject to more than a rational basis level of scrutiny.

If the government's position in this case is sustained, this constitutional right would be taken away not because of a conviction, but merely because a person was charged. This right would be lost notwithstanding a lack of showing that Defendant is a potentially violent individual, or that he even owns firearms. Certainly no particularized need has been established in this case that the Defendant should prohibited from possessing a firearm. As such, they will restrict his freedom to such a substantial degree that they do nonetheless implicate a protected liberty interest, which may not be revoked without according Defendant procedural due process; specifically, an individualized determination as to whether the onerous mandatory conditions are needed to assure the Defendant's future appearance or to avoid a danger to the community. No such determination has occurred here.

Note that the magistrate's decision had a substantive effect, beyond just requiring the government to provide more evidence; the government apparently couldn't provide the evidence, so the defendant was released without the firearms restriction.

By the way, here is the government's argument for imposing the firearms restriction, and for reversing the magistrate's ruling:

[T]here is no indication that the restriction on firearms will impose any burden on Defendant whatsoever, as Defendant has not contended that he has any need to possess or have access to firearms. Moreover, this condition will help ensure the safety of the community by restricting Defendant’s ability to harm himself or others by using a firearm....

[C]riminal defendants, such as Defendant, who have been charged with a violent crime simply do not have a “fundamental right” to possess or have access to firearms. Accordingly, the condition precluding possession of firearms for the relatively brief time pending trial does not affect a fundamental liberty interest.

There's no explanation for why simply being charged takes away a defendant's Second Amendment rights. (Note also that Kennedy's crime -- possession of child pornography -- is not a "violent crime" under any normal understanding of the term, though it is a serious crime.) I also put up Kennedy's response to the motion, though it focuses on other matters.

Related Posts (on one page):

  1. Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:
  2. The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:
CDR D (mail):
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created (guarantees) an individual right to possess firearms.


Fixed that for the good judge.

By the way, has the *Heller* opinion been published in its final form? You know, as it will appear in United States Reports?

The "slip opinion" has at least one error by both the majority and dissent in that it taints the record with regard to the actual result in *Miller*.
2.5.2009 6:06pm
ohwilleke:
When someone is released on bail, they have been previously arrested by a government official who has represented that there is probable cause that someone has committed a crime.

This determination is constitutionally sufficient to justify great limitations on personal freedom, up to and including incarceration for the entire time leading up to a trial (or at least, to a pre-trial hearing if one is permitted in a case), if bond is not met in an amount set by an impartial magistrate.

Conditions attached to a bond calculated to secure the appearance of the person released on bond pending a favorable ruling either at a pre-trial hearing or at trial.

The requirement that a person be unarmed bears a rational relationship to the permissible object of securing the attendance at trial of someone who is released on bail and reluctant to appear. An armed person facing a trial for serious criminal charges who is reluctant to appear is a much greater challenge for a U.S. Marshall enforcing a warrant to secure that person's attendance at trial, than someone who is unarmed.

Obviously, criminals released on bail can violate the terms of their release. But, the person with a financial interest in the bond has an interest in making this not happen, so the risk to U.S. Marshals is probably reduced by this condition.

In addition to the risk to marshals, there is also a significant risk that possesion of a firearm together with even presence in the vicinity of potential witnesses, which is likely because most crime is local, could justifiably intimidate a witness and put the impartiality of the trial at risk.

Finally, given the limited information available to magistrates in bond hearings, it is rational to make a blanket rule, rather than an individualized determination. It would probably be a better rule, if the magistrate were permitted to waive the blanket rule for good cause upon request by a motion setting forth the basis for the request, but that doesn't necessarily make it unconstitutional per se.

Two other factors are notable. First, roughly 95% of those charged with crimes will, when all is said and done, be convicted of something. Second, more than half of federal criminal defendants have a prior criminal record including convictions. This, at the very least, provides strong support for making a ban on gun possession pending trial a good default rule.

Also worth considering is the fact that police departments routinely put police officers who have been involved in a deadly force incident, even if there is no serious belief on anyone's part that this was improper, off duty, until the incident has been fully investigated.

The notion that a high tension incident like an arrest could create a temporarily high risk of imprudent firearm use is not unreasonable or disconnected from the empirical evidence.
2.5.2009 6:51pm
Paul Milligan (mail):
Can you say 'Presumption of guilt' ? And 'Use any excuse to sneak in some anti-gun garbage' ?
2.5.2009 6:55pm
pintler:

Also worth considering is the fact that police departments routinely put police officers who have been involved in a deadly force incident, even if there is no serious belief on anyone's part that this was improper, off duty, until the incident has been fully investigated.


I followed, and largely agree with, your post, but didn't understand this part. On administrative leave != unarmed. Even if an officer's badge and issue weapon are removed, he/she can and almost certainly does have a personally owned one.
2.5.2009 7:02pm
ohwilleke:
Release on bond usually contains a laundry list of conditions:

1. Forfeiture of passports.
2. Requirement to remain within the state.
3. Requirement to refrain from using alcohol or drugs.
4. Requirement to maintain regular contact with the court or a bailbondsman.
5. Requirement to disclose contact information including a current physical address.
6. Requirement not to contact potential witnesses.

Bond conditions closely resemble temporary restraining orders, which can also be obtained ex parte and impose restrictions on liberty including a prohibition on purchasing or owning a gun, pending a hearing on the matter.

While our system of criminal justice does not presume guilt precisely, one of the awesome and frightening things that our system does is to empower law enforcement officers and prosecutors to conspire to have someone arrested in a way that is unreviewable until the reasonable time afterwards when judicial review is available. The law is clear on that point.

One can disagree with a system of criminal justice that allows one to have one's liberty restrained on mere probable cause prior to a hearing, but common sense and a certain amount of trust in law enforcement (and the remedy of a civil rights suit in some cases) has made this a pretty workable arrangement for a very long time.

If one wants reform, one would be better to take on generally the notion that every single criminal offense justifies arrest and pre-trial detention (something that the SCOTUS has permitted), through statutory revision, rather than as a matter of constitutional law.
2.5.2009 7:08pm
ohwilleke:
pintler, the point is that a cooling down period in a situation where risk is reduced beyond what is necessary, until one has time to sort out the facts at one's leisure, is a rational thing to do.

While off duty does not mean unarmed, it dramatically reduces the likelihood that a cop will encounter another deadly force incident in the immediate wake of the first one.
2.5.2009 7:10pm
whit:

I followed, and largely agree with, your post, but didn't understand this part. On administrative leave != unarmed. Even if an officer's badge and issue weapon are removed, he/she can and almost certainly does have a personally owned one.



not only that, but at least in our dept. - if they take your gun due to an incident, they have to issue you a replacement
2.5.2009 8:44pm
Gabriel McCall (mail):
You have a constitutional right to keep and bear arms. You also have a presumption in favor of bail, and a right that the bail not be "excessive". All that being the case, the only way I can see to make disarmament a condition of bail reasonable would be when, if the judge assumes the accused to be armed, it would be justifiable to deny bail altogether. If the options are between "jail" and "jail or disarm", I can see offering the latter option.

As I understand it, though, there's a specific process of justification which must be gone through to deny bail altogether, and it only applies in the context of certain serious felonies.
2.5.2009 9:28pm
J. Aldridge:
"In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created [a new] individual right to possess firearms."

Fixed.
2.5.2009 9:33pm
zippypinhead:
Release on bond usually contains a laundry list of conditions [then listing some]
But one thing to keep in mind is that under the general (non-Adam Walsh amendment minor victim) terms of 18 U.S.C. §3142(c)(1)(B), the court is to fashion "the least restrictive further condition, or combination of conditions, that . . . will reasonably assure . . . the safety of any other person and the community, which MAY include [list of various conditions, including] that the person . . . (viii) refrain from possessing a firearm . . ." (emphasis added).

It's not at all unusual for Federal Magistrate Judges to exercise their discretion to routinely strike some of the boilerplate conditions in appropriate cases, such as the requirements for drug testing, limiting travel outside the District, etc., for white collar and other non-dangerous defendants. But for the Adam Walsh Amendment and the separate provision at 18 U.S.C. §922(n), the firearms restriction could be handled the same way, either upon request of counsel, or even sua sponte by the court.

I'm not offended by Magistrate Donohue's holding in this case, especially if one takes Heller's dicta on the appropriate standard of review for evaluating Second Amendment infringements at face value and applies something stricter than a mere "rational basis" test.
2.5.2009 9:53pm
TruePath (mail) (www):
ohwilleke:


The requirement that a person be unarmed bears a rational relationship to the permissible object of securing the attendance at trial of someone who is released on bail and reluctant to appear. An armed person facing a trial for serious criminal charges who is reluctant to appear is a much greater challenge for a U.S. Marshall enforcing a warrant to secure that person's attendance at trial, than someone who is unarmed.


You do realize that saying they must remain unarmed doesn't actually force them to do so, don't you? I'd guess that someone prepared to fire on law enforcement agents to avoid reporting to court wouldn't bother to obey this kind of restriction. Even if they couldn't pass a background check to buy the weapon themselves I'm unconvinced it would be an effective deterrent.

It's not obvious, and indeed seems counterintuitive, that such a restriction would be effective. So unless we are prepared to let the government restrict any right of someone accused of a crimes merely on the government's insistence that it is rationally related to their appearance at trial the very least that is necessary is evidence suggesting this restriction is actually efficacious.

--------------

Given the inclusion of child porn charges in the list of offenses I think we can safely infer the real aim of this act is not to guarantee appearence at trial but to protect those in the community from harm by the accused.

So let's try the exact same argument in a criminal libel case. Could the government pass a law requiring anyone accused of this crime refrain from mentioning the alleged victim in print while awaiting trial? Surely not so why can they do it with the 2nd amendment.

----------------

If we put ourselves into the mindset that prevailed when the constitution was adopted it seems pretty clear that possession of a firearm wasn't viewed as the kind of optional matter it is today. Indeed, going without a firearm would not only put one's life in danger, impair your ability to put food on the table, but might even be considered a breech of civic duty. I find it hard to believe that requiring citizens to surrender their weapons on the mere accusation of a public official wasn't exactly the sort of thing the 2nd ammendment was designed to protect against.

I mean if mere arrest on criminal charges were enough to strip someone of their weapons then a tyrannical government could strip anyone they suspected of disloyalty of their weapons without being checked by the power of the jury.

This might be a reason to modify the 2nd ammendment but I don't think there is a good argument that it permits the government to do what the Adam Walsh act demands.
2.5.2009 10:15pm
Dilan Esper (mail) (www):
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created (guarantees) an individual right to possess firearms. Fixed that for the good judge.

Again, you gun rights advocates need to GROW UP. The way rights get recognized and protected in this country is that the Supreme Court holds them applicable to particular cases. That means that it's perfectly natural and correct to say that the Second Amendment-- OR EVEN THE COURT IN HELLER-- created the individual right to bear arms.

People who make this correction are cranks, the equivalent of people who object every time someone says the US is a democracy with the pseudo-intelligent point that the US is actually a republic.

In a country with judicial review, the way you get rights is to get the Supreme Court to agree with you. That's what Heller did, and it reversed what was certainly the prevailing interpretation of prior caselaw in the lower courts. So you have the right now and you didn't before, because before, if you had gone into court to vindicate it, you probably would have lost.
2.5.2009 10:24pm
Eugene Volokh (www):
J. Aldridge (and CDR D, though J. Aldridge is the frequent offender here): Could you please avoid conclusory one-liners? If you've got an argument, make it; don't just say something as if it were obvious and expect it to persuade people. If you were an acknowledged expert in the field, people might take your word on it, but you aren't -- at least under that name. Please give evidence and argument, not assertion. (I don't just mean about this question, but also for all the other conclusory one-liners you often post.)
2.5.2009 10:36pm
Steve:
I mean if mere arrest on criminal charges were enough to strip someone of their weapons then a tyrannical government could strip anyone they suspected of disloyalty of their weapons without being checked by the power of the jury.

You do realize that saying they must remain unarmed doesn't actually force them to do so, don't you?
2.5.2009 10:41pm
David M. Nieporent (www):
Dilan, your rant is misplaced in that it both misreads the comment and misdirects the ire. Misdirects, in that it has nothing to do with "gun rights advocates." Us natural rights people think the same thing about the first amendment -- it recognized the right to free speech; it didn't create it. Misreads, in that you act as if he's complaining about the description of Heller, when he's actually complaining about the description of the Constitution.

In a country with judicial review, the way you get rights is to get the Supreme Court to agree with you. That's what Heller did, and it reversed what was certainly the prevailing interpretation of prior caselaw in the lower courts. So you have the right now and you didn't before, because before, if you had gone into court to vindicate it, you probably would have lost.
Well, no. You always had the right, and always will. If the Supreme Court ruled the other way, it would be violating your rights, not eliminating them. The way you get rights is to be born. We do hold these truths to be self-evident, you know.
2.5.2009 10:44pm
Gabriel McCall (mail):
In a country with judicial review, the way you get rights is to get the Supreme Court to agree with you. That's what Heller did, and it reversed what was certainly the prevailing interpretation of prior caselaw in the lower courts. So you have the right now and you didn't before, because before, if you had gone into court to vindicate it, you probably would have lost.


Dilan, you're confusing the right itself as a philosophical principle with the legal protection of that right as a matter of case law. The court does not ever create a right; it creates legal protection for a right it finds already to have existed.

The people who make the distinction you're decrying think it's important to note, as the Founders thought it important to note, that rights are intrinsic attributes of humanity, not creations of government, and that the purpose of government is not to establish new rights but to safeguard those with which we are "endowed by our Creator."

Sure, one can say that Heller created an individual right to firearm ownership and that Roe v Wade created a right to abortion. But a lot of people find that language sloppy and inaccurate even if it gets the general point across. The fact that you don't care to make a distinction doesn't make it invalid. It's definitely true that those cases created legal protections for those rights, but that's not exactly the same thing; if the right did not exist in principle before the case was decided, the courts would have had no reason to decide to protect the right.

(Yes, we could get into a Jack McCoy debate about "we have only those rights we can defend", but we don't have to settle the exact nature of what a right is in order to agree that people of goodwill can reasonably disagree on the subject.)
2.5.2009 10:59pm
Bill McGonigle (www):
How does this square with the other result - being that you go to jail if you can't pay bail? There's no (supposed) presumption of guilt there.

I find this a rather good argument against jail for cases that would otherwise allow bail, but still it stands.

I suppose one could argue that in jail, 'they' protect you, on the outside you still need to be able to defend yourself. Perhaps especially against pitchforks in some locales given the accusation.
2.5.2009 11:53pm
whit:

I mean if mere arrest on criminal charges were enough to strip someone of their weapons then a tyrannical government could strip anyone they suspected of disloyalty of their weapons without being checked by the power of the jury


for pete's sake.

you don't even need an arrest/charge.

and note this case was not merely an arrest. it was a formal charging.

but you don't even need that.
thank the war on domestic violence.

a protection order is all it takes to have your rights stripped for YEARS.

no right to a jury.

mere "preponderance" standard.

it's ironic that people are up in arms about this (federal indictment on a felony resulting in brief stripping of gun rights), when mere accusation of being super scary to a petitioner on a domestic violence order is all it takes to get your rights permanently (or for years) revoked.

that's a significantly lower standard and MUCH harder to reverse.
2.6.2009 1:08am
Brett Bellmore:

That means that it's perfectly natural and correct to say that the Second Amendment-- OR EVEN THE COURT IN HELLER-- created the individual right to bear arms.


Except, that's neither what the amendment itself claims to be doing, what it's drafters understood it to be doing, nor even what the Heller majority thought they were doing.

What's the point of insisting that the courts create, rather than recognize, rights? So that you can deny any right is being violated if the government violating it doesn't care to admit it exists? I wonder how far you'd go in applying this doctrine to other nations... Did Pol Pot violate nobody's rights in stacking up his pyramids of skulls?
2.6.2009 7:00am
ParatrooperJJ (mail):
One they are actually indited don't they lose their rights until the conclusion of the case anyway?
2.6.2009 8:38am
Dasarge:
I hope Prof. Volokh will forgive when I make a short assertion assuming people will know the argument:

The Anti-Federalists were right.

I know several of the AUSA's in this Dt. They are good, competent and honorable public servants doing a hard job for not enough money. I have quite a defense from one, though it echoes much of what is already said here.

And they are wrong. A constitutionally enumerated right is fundamental in every way. The correct argument is that the attenuation of the right is reasonable in the circumstances. They'd be wrong in this case, too, but it would at least recognize the Constitution does indeed limit the power of the gov't.

This brief is the effect of having argued the same side of the same issue for years. The AUSA is an empassioned advocate who has lost her perspective. All she can see is getting an evil psychopath off the streets. Constitutional niceties just get in here way.

Well-meaning gov't officials are as big a threat to liberty as anyone. The Anti-Federalists were right.
2.6.2009 8:47am
Dan Hamilton:

In a country with judicial review, the way you get rights is to get the Supreme Court to agree with you. That's what Heller did, and it reversed what was certainly the prevailing interpretation of prior caselaw in the lower courts. So you have the right now and you didn't before, because before, if you had gone into court to vindicate it, you probably would have lost.


You seam to believe that the Supreme Court has the last say in the matter. That the Constitution means whatever the Supreme Court says it means.

Sorry the Constitution was written FOR THE PEOPLE not lawyers. Yes there are gray areas that need interpretation and reasonable people can disagree. BUT that is NOT always true.

The People have the final say. Duh, maybe that is why they put the 2ed in the BOR.
2.6.2009 11:56am
zippypinhead:
Dasarge wrote:
This brief is the effect of having argued the same side of the same issue for years. The AUSA is an empassioned advocate who has lost her perspective. All she can see is getting an evil psychopath off the streets. Constitutional niceties just get in here way.
Well, thanks for at least acknowledging that AUSAs can be "good, competent and honorable public servants doing a hard job for not enough money." But otherwise, I respectfully beg to differ.

An Assistant United States Attorney has a legal ethics responsibility to zealously represent the interests of his client, which is of course the United States. And he has taken an oath to uphold the Constitution and the Laws of the United States. In this case, Congress enacted a statute on behalf of the people of the United States, and it is the AUSA's job to enforce it. Period. He is not permitted to make policy; that is for Congress and the political Executive branch (including his political superiors within DOJ). The AUSA's job is simply to implement policy choices made by others.

Only in those very rare circumstances where a statute appears to be Constitutionally infirm based on established legal precedent (and Department of Justice policymakers concur), may an AUSA advocate to a court that it be disregarded or invalidated. Here, Congress chose to enact the Adam Walsh Amendment, thus expressly depriving both Judges (and AUSAs who might otherwise recommend something different) of discretion to permit certain defendants to retain firearms pretrial. Judges, at least, have the ability to rule such Congressional enactments unconstitutional, thanks to Marbury v. Madison and its progeny. No such luck for mere line AUSAs. AUSA's are a bit like infantry grunts - they don't get to make the strategic battle plans, or even say "no" to a lawful order to take the next hill.

As for perspective, I assure you there are a lot of AUSAs who don't view all defendants as "evil psycopaths," and go out of their way to see that Justice (note the capital "J") is done to the maximum extent possible, within the confines of the system. This happens every day in discretionary decisions to not seek pretrial detention, in charging decisions, plea negotiations, sentencing recommendations, and victim's rights issues. But all those decisions are made within the framework of existing law. Stray beyond that, and you won't get to be an AUSA, or perhaps even a lawyer, for very long.

Assume, hypothetically, that this anonymous pinhead's post on this thread at 9:53 pm was in fact authored by a current or former AUSA exercising his First Amendment rights. Would it shock you that a hypothetical AUSA might actually have enough perspective to not be troubled by the Magistrate Judge's ruling here?

I won't say any more; this overlong comment is starting to sound suspiciously like one of police officer Whit's impassioned (but understandable) rejoinders to some of the periodic assertions in VC threads that "all cops are evil fascists."
2.6.2009 12:23pm
Michael Ejercito (mail) (www):

someone who is charged with possessing child pornography -- among other crimes -- and is freed on bail must be ordered not to possess any firearm. In late December, U.S. v. Arzberger (S.D.N.Y.) concluded that this violated the Due Process Clause, largely because the right to bear arms is protected under the Second Amendment.

True.

If a person charged with possessing child pornography is so dangerous that they can not be trusted with a firearm, why give them bail?

I'd guess that someone prepared to fire on law enforcement agents to avoid reporting to court wouldn't bother to obey this kind of restriction.

How would they obtain a firearm though? Firearms would be as difficult to obtain as heroin.

it's ironic that people are up in arms about this (federal indictment on a felony resulting in brief stripping of gun rights), when mere accusation of being super scary to a petitioner on a domestic violence order is all it takes to get your rights permanently (or for years) revoked.

I am surprised this was not used against the military to disarm them.
2.6.2009 2:29pm
Bill McGonigle (www):
I am surprised this was not used against the military to disarm them.

I heard second-hand that there's a bill before the US house to do this; any ex-military suspected of PTSD would be ineligible to own a firearm.
2.6.2009 2:57pm
Dilan Esper (mail) (www):
To the people who responded to my comment:

It's fine to believe in "natural law"-- a tradition that goes all the way back to Aquinas and which is reflected in the Declration of Independence (but notably, has no place in the Constitution).

But that doesn't mean that any positivist, non-natural law statement about the law is incorrect. In other words, when someone is going around correcting every time someone observes that Heller created or allowed an individual right to bear arms, that person is claiming that natural law is the ONLY possible conception of rights. Because if positivism is even plausible, the statement about Heller is not incorrect.

Also, I can emphatically say that the Supreme Court DID NOT think it was recognizing a preexisting right. The Court does not work that way, and at most there is only one natural law theorist on the Court (and I actually doubt that Thomas is even one-- he just endorsed the view of a person who was using natural law to make a case against abortion rights). People who sit on courts that recognize, take away, preserve, and vitate rights are by their very nature going to be judicial positivists. Scalia knows full well that the only rights that he can create are the ones he can get 5 votes for.
2.6.2009 3:02pm
ohwilleke:
So let's try the exact same argument in a criminal libel case. Could the government pass a law requiring anyone accused of this crime refrain from mentioning the alleged victim in print while awaiting trial? Surely not so why can they do it with the 2nd amendment.

Criminal libel cases are so rare in the United States, despite the fact that many states, including my home of Colorado have statutes that authorize them, that it is hard to know how that would come out.

In a civil libel case, it would be unusual but not unprecedented to have an ex-parte TRO to that effect, and to also have a preliminary injunction issued on the basis of an evidentiary hearing, when the TRO expires, that remains in place until trial. The usual preliminary injunction balancing test would apply.
2.6.2009 3:18pm
ohwilleke:
So let's try the exact same argument in a criminal libel case. Could the government pass a law requiring anyone accused of this crime refrain from mentioning the alleged victim in print while awaiting trial? Surely not so why can they do it with the 2nd amendment.

Criminal libel cases are so rare in the United States, despite the fact that many states, including my home of Colorado have statutes that authorize them, that it is hard to know how that would come out.

In a civil libel case, it would be unusual but not unprecedented to have an ex-parte TRO to that effect, and to also have a preliminary injunction issued on the basis of an evidentiary hearing, when the TRO expires, that remains in place until trial. The usual preliminary injunction balancing test would apply.
2.6.2009 3:18pm
CDR D (mail):
EV writes..

>and CDR D: Could you please avoid conclusory one-liners? If you've got an argument, make it; don't just say something as if it were obvious..<


Well, I would have thought the comment about the 2A "guarantee" should have been obvious, but "recognition" would probably have been a better word for me to use. The *Heller* court did not "create" a right.

My appeal would be to Hamilton in the Federalist #84. The 2A, as with the other Amendments, is an "exception" to a "power" the people never granted to the federal government. And the Constitution is about granting powers, not rights. At least that's what I thought.

Anyway, that's the way I see it without the benefit of some secret decoder ring.
2.6.2009 6:04pm
CDR D (mail):
Oh, I almost forgot.

When will the final *Heller* decision be available, sans the errors about *Miller* (upheld a conviction)?

Where to look?
2.6.2009 6:11pm
Kent G. Budge (www):

[T]here is no indication that the restriction on firearms will impose any burden on Defendant whatsoever, as Defendant has not contended that he has any need to possess or have access to firearms.


So I guess the prosecution is saying that the Court can take away my freedom of the press, if I fail to make the contention that I have a need to publish a newspaper or have access to a printing press?
2.6.2009 6:51pm
whit:

[T]here is no indication that the restriction on firearms will impose any burden on Defendant whatsoever, as Defendant has not contended that he has any need to possess or have access to firearms.



So I guess the prosecution is saying that the Court can take away my freedom of the press, if I fail to make the contention that I have a need to publish a newspaper or have access to a printing press?



well put. note that anti-gunners (not saying this person is one) frequently couch their arguments against people carrying guns as "well, why would you need a gun?" the classic "need" argument.

i see this all the time on lefty blogs for instance, trying to draw into a discussion of need.

it's a constitutional right.

i may never need any # of rights i have under various amendments or case law. it doesn't therefore follow that the govt. can restrict these rights and i have to demonstrate a need.

it's a totally irrelevant question.
2.6.2009 7:16pm
Soronel Haetir (mail):

Oh, I almost forgot.

When will the final *Heller* decision be available, sans the errors about *Miller* (upheld a conviction)?



I honestly don't expect this to get corrected. The Miller narrative is too firmly established in the Court's mind for mere facts to get in the way.
2.6.2009 9:41pm
Dasarge:
I think Zippypinhead & I are talking past each other. I quite agree about the duty of the AUSA to enforce the law and not undermine statutes she disagrees with. It is the argument made by the AUSA that I am concerned about:

[C]riminal defendants, such as Defendant, who have been charged with a violent crime simply do not have a “fundamental right” to possess or have access to firearms. Accordingly, the condition precluding possession of firearms for the relatively brief time pending trial does not affect a fundamental liberty interest.
The AUSA is basically arguing that the an enumerated right is not fundamental. She is wrong & ought to know she is wrong. The mere accusation (probable cause is a very low standard) does not of itself attenuate one's rights. The 2A does not have an exception for persons indicted for crimes. This defendant was, as a matter of law, not guilty. If the Walsh Amendment mandated prohibition of firearms (the magistrate didn't think so), then the AUSA must argue the statute is a reasonable attenuation of a fundamental right. But the right is still fundamental at all times. The fact is, the defendant DOES have a fundamental right to possess firearms.

The Anti-Federalists were right.
2.6.2009 10:15pm
zippypinhead:
Dasarge, I'm always happy to admit I missed somebody's point. Note my blog handle, after all. Perhaps we can agree the AUSA had a duty to enforce the Adam Walsh Amendment, but that she could have done it a bit more elegantly? I think perhaps the argument that criminal defendants don't have a "fundamental right" to possess firearms is slightly mis-stated. Might the government have been on more solid footing by acknowledging that RKBA is a "fundamental right," but that Congress made a reasoned and entirely-Constitutional decision to temporarily suspend it for this class of defendant as a condition of pretrial release that is necessary for the protection of potential victims and society in general? Maybe. Maybe not.

Keep in mind there are a number of "fundamental rights" that, upon showings of varying rigor, can be abrogated, even before there's a criminal conviction. For example, a criminal defendant who poses a physical danger to other inmates can be held pretrial in administrative segregation (i.e., isolation), which is a serious impediment to his enumerated First Amendment rights. If the defendant is making threats on the jail payphone, his First Amendment-protected telephone use can be terminated. If he wants to behead chickens on the roof of the jail at sunrise as part of a worship service, his freedom of religion can be limited. Conditions of release similarly impact one's enumerated rights all the time, but under the general statute, there needs to be a "least restrictive" test applied on such conditions.

I would think that the government can prohibit firearms upon a showing that meets whatever heightened standard that ultimately applies after Heller (an issue SCOTUS deliberately ducked). There may be circumstances under which it's permissible to revoke that right for an entire category of accused, without allowing an inquiry as to individual circumstances. For example, revoking Second Amendment rights of indicted armed robbery defendants as a condition of pretrial release almost certainly meets even a compelling interest standard. Defendants in kiddie porn possession cases aren't a very sympathetic class for a lot of things, but absent allegations that (at minimum) they're producing the stuff by using physical force, a blanket firearms possession prohibition seems a bit suspect. IMHO only, of course.
2.7.2009 12:00am
Dasarge:

Might the government have been on more solid footing by acknowledging that RKBA is a "fundamental right," but that Congress made a reasoned and entirely-Constitutional decision to temporarily suspend it for this class of defendant as a condition of pretrial release that is necessary for the protection of potential victims and society in general?

Exactly. This is what she should have argued, thereby making the gov't's case. She should also have known that, on these facts, her argument was a loser. But it is her job to make the gov't case, not decide the issue. And, of course, there is the Walsh amendment -- as my nameless colleague at the US Atty's Ofc points out. It is the law and it is her job to put it before the Magistrate.

And I agree with the rest of your post, as well. A guy indicted for armed robbery probably ought not carry. That is reasonable in the circumstances.

But this is where we may disagree: the AUSA's argument was more dangerous than merely "inelegant." The essence of the argument is that the Constitution does not mean what it says and the Bill of Rights places no limit on the gov't's power. She implies that a man presumed innocent by law has no rights whatever except those which the gov't deigns to allow. She completely inverts the Constitution. Just what the heck was James Madison up to when he drafted the Bill of Rights? The whole purpose the 2A was to deny the gov't the power to make this argument. She should know that & probably does. She was wrapped up in her advocacy and failed to see the implications of the argument. I suspect also that she is among the many lawyers up here in WA that view the 2A, like the 9A &10A, as essentially dead letters.

The Anti-Federalists argued that any right not specifically asserted will be lost. One can always posit a "reasonable" and "rational" basis to attenuate a right. Hence, the rights need to be spelled out and violation by the gov't expressly forbidden. The Anti-Federalists largely lost, except for the Bill of Rights.

And I take issue with the "temporarily suspend" language. Congress can "temporarily suspend" the Bill of Rights? I think not and it is dangerous to liberty for a Federal official to think so.


This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.

-- Patrick Henry

The Anti-Federalists were right.
2.7.2009 10:55am
Dasarge:
I might add that I finding passing strange that important holdings of the decision are contained in a footnote. See, e.g., Kennedy Order, p13, ln17. That is becoming common in our neck of the woods. It is particularly ironic, as the judges up here complain bitterly about footnotes.
2.7.2009 11:37am

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