The Seventh Circuit (in U.S. v. Jackson) upholds this against a Second Amendment challenge, in an opinion by Judge Frank Easterbrook.
The Court said in Heller that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection. Jackson was distributing illegal drugs (cocaine and unlicensed dextromethorphan hydrobromide tablets) out of his home. The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash. Jackson says that he lived in a dangerous neighborhood and wanted to protect himself from burglars and other marauders. That may be so, but his decision to operate an illegal home business also matters. Suppose a federal statute said: “Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there.” Such a statute would be valid, as Jackson’s lawyer conceded. And if Congress may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns. The statements “if you have a gun, you can’t sell cocaine” and “if you sell cocaine, you can’t have a gun” are identical.
I think this analysis is ultimately right, but the hypothetical involving the "Anyone who chooses to possess a firearm ..." statute doesn't advance matters much. Statutes that say "anyone who chooses to [exercise a constitutional right] is forbidden to [commit a certain crime]" — and the penalty is higher than the penalty for committing the crime while one is not exercising the constitutional right — might well not be constitutional.
Consider a different hypothetical: Say a federal statute (which had a penalty higher than that for simple fraud) said "Anyone who chooses to possess a firearm in the home for self-protection is forbidden to commit computer frauds at the office." Of course the government could and does forbid frauds. But it doesn't follow that it can impose extra punishment for committing fraud while exercising a Second Amendment right in a way unrelated to the fraud.
What's doing the work, I think, are the earlier sentences: "the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection," plus "The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash." The Constitution doesn't protect the use of guns in crimes, and even having the gun around when it materially facilitates the crime (as it does for the drug sale in the next room but not for the computer fraud at the office) is itself a form of use of guns.
Here's what I say related to this in a draft article on Implementing the Right To Keep and Bear Arms, which is forthcoming in several months in the UCLA Law Review; among other things, I focus on the doctrine developed by some state courts applying their state right-to-bear-arms provisions, including by courts that have indeed struck down some other government actions on state right-to-bear-arms grounds:
Many states ban possession of guns while possessing drugs or committing a crime....The right to keep and bear arms in lawful self-defense doesn’t include the right to use those arms in a crime. [Footnote: See, e.g., D.C. v. Heller, 554 U.S. at __ (describing the Second Amendment right as being a right to possess guns for “traditionally lawful purposes”); United States v. Bowers, 2008 WL 5396630, *2 (D. Neb. Dec. 23); Cockrum v. State, 24 Tex. 394, 401-03 (1859); State v. Daniel, 391 S.E.2d 90, 97 (W. Va. 1990).] And this would include using the guns in ways short of firing or even brandishing them (for instance, by carrying them in case one wants to fire or brandish them, which might well embolden the criminal and deter others who know that this criminal is armed).
On the other extreme, keeping a gun for self-defense in a way that’s unconnected to the crime should generally be seen as the exercise of one’s constitutional right: Consider, for instance, a person who possesses a gun for home defense while engaged in consensual sex with someone under the age of consent, or while committing a fraud at work. [Footnote: See, e.g., Biddinger v. State, 846 N.E.2d 271, 278 (Ind. Ct. App. 2006) (holding that mere possession of a firearm may not be used as an aggravating factor at sentencing).]
One can hypothesize ways in which even this sort of gun possession could help one commit a crime, for instance to resist arrest in the event that one is caught, or to threaten witnesses or coconspirators should such a threat be necessary. But so long as such possible misuse of a gun is entirely speculative, and not part of either the defendant’s past behavior during the crime or clearly planned future behavior, those hypotheses shouldn’t suffice to turn constitutionally protected behavior into criminal behavior. And the exercise of constitutionally protected rights in ways that are unconnected with criminal conduct generally can’t be used to enhance the sentence for such criminal conduct. [Footnote: See, e.g., Dawson v. Delaware, 503 U.S. 159 (1992).]
This in fact is how many courts have analyzed this, in the “nexus” line of cases: When a gun is not possessed on the person, gun possession can only be treated as criminal or used to enhance a sentence if there is an adequate connection between the possession and the crime. [Footnote: State v. Gurske, 118 P.3d 333, 335 (Wash. 2005) (one in a long line of Washington state cases on the subject); State v. Blanchard, 776 So. 2d 1165 (La. 2001); People v. Atencio, 878 P.2d 147, 150 (Colo. Ct. App. 1994). See also Brewer v. Commonwealth, 206 S.W.3d 343, 347-48 (Ky. 2006) (relying partly on right to bear arms in holding that firearm may not be forfeited based on the owner’s conviction of a crime unless there’s a nexus between the firearm and the crime).]
In particular, “mere proximity or mere constructive possession is insufficient to establish that a defendant was armed at the time the crime was committed”: “[T]he weapon must be easily accessible and readily available for use,” “whether to facilitate the commission of the crime, escape from the scene of the crime, protect contraband or the like, or prevent investigation, discovery, or apprehension by the police.” [Footnote: Gurske, 118 P.3d at 335–36.] This test is far from perfectly clear, and needs more scholarly attention. But it seems like a reasonable first cut aimed at making sure that criminals are punished for their criminal behavior and not for their constitutionally protected behavior.
Why would these be more constitutionally suspect than extra penalties for drug-dealing if you have a gun in your home for self-protection?
He should say:
"If you can sell cocaine, then you don't have a gun" That is the contrapositive of the first statement "If you have a gun, then you can't sell cocaine."
Of course these statements are both pretty obvious, because you can't sell cocaine period. Thus, it is true that anyone who can sell cocaine (i.e. no-one) also does not have a gun. But so what. The whole exercise of trying to frame the argument as a matter of logic is an obfuscation, because he distorts his terms while trying to declare an identity.
And this doesn't even bring into account whether a rule like the contrapositive should apply to this kind of ordinary statement. As JL Austin asked, when someone says "There are biscuits on the table if you want some", does that mean that if you don't want some, then there are no biscuits on the table?
Is this not exactly what 'hate crime' laws do? Calling someone a racial epithet is (or most likely is) constitutionally protected speech. Committing a crime of violence against a member of the racial group named in the epithet brings down enhanced punishment on the speaker (who is also the one engaged in violence).
Here's an even clearer example of it than that. Normally, the words "I live at 326 Sycamore Street" are constitutionally protected speech. But those same words, in response to the phrase "where should I go to pick up the drugs that I am buying from you?", can constitutionally form one of the elements of the crime of selling narcotics. You are free to speak your address, but you are not free to speak your address for the purposes of consummating an illegal sale of narcotics.
But that analysis only works when the speech / gun possession has a nexus to the crime. A drug dealer certainly DOES have a constitutional right to keep and bear arms, so long as he or she does not keep or bear those arms in a manner that bears a nexus to his or her illegal drug transactions. If the drug dealer keeps a gun next to the bed for self-protection, conduct all his drug deals outside of his residence, and never brings the gun along, it would seem to me that a firearms enhancement would be barred by the Second Amendment.
There are areas where these zoning laws aren't heavily enforced -- and "started by two guys in a garage then became HP/Apple/Google" is a very common success story -- but where gun laws are very stringent (e.g. Silicon Valley). So would someone running a start-up out of their garage, who also keep a shotgun in their closet ("just in case" against a home invasion or even just for shooting skeet on the weekends), be then technically eligible to be charged with a felony? Their start-up is technically an illegal business (breaking a zoning law), their weapon could be used for protection against burglars who come to steal computer equipment/sensitive documents.
If the guy uses the gun illegally, then punish him for it. Guns don't commit crimes by themselves and even drug dealers would be not be punished for shooting someone in self defense.
Extra penalties for child abuse if you are in a position where children are expected to trust you would fit this bill (because that trust facilitates your abuse of them).
Priests and rabbis are in a position where children are expected to trust them.
Is a law creating extra penalties for child abuse if you are a priest or rabbi more constitutionally defensible, less constitutionally defensible, or equally as constitutionally defensible as a law creating extra penalties for drug-dealing if you have a gun in your home for self-protection?
He had a loaded long gun (or in one case, pistol) behind every door in his house.
I am agnostic about the wisdom or usefulness of the 2nd Amendment, but spare me the convoluted lawyering. He wasn't keeping rifles behind every door to deal with rodents.
I don't have much to say on the broader issue, but this sentence jumped out at me. While it obviously doesn't cover every type of crime or constitutional right, doesn't Wisconsin v. Mitchell allow for the greater punishment if you're exercising a constitutional right [voicing protected, negative speech on the basis of race, religion, sex, etc.] while commiting a crime [assault]?
Not exactly. A racially charged utterance is used as evidence to prove the mens rea of "hate crime"; it does not itself satisfy an element of the statute.
Here, the question is use -- specifically, how far may we go to infer from possession the criminal use of a firearm before we butt up against the protections afforded by the Second Amendment.
That's why Easterbrook's hypothetical is irrelevant and unhelpful. The question at bar was a factual one: whether sufficient evidence existed in the record to support Jackson's plea of guilt to the gun crime charge (he subsequently moved to withdraw; in the plea he admitted the gun was held "in furtherance" of the felony).
Still unclear is whether a mere "gun in the house", without more, passes constitutional muster as proof of use "in furtherance" of a drug crime when the crime is committed at home. If I had to guess, I'd say a mere gun in the house, without being easily accessible or ready for use (or something), is not enough.
I'm not sure I agree with you. Or perhaps I misunderstand you.
Would you apply the same analysis to other rights in the Bill of Rights?
Would you take the position that the Constitution entitles citizens to exercise their First Amendment rights (for example) - but not if their speech can be tied to - or occurs at the same time as - some criminal conduct?
That is, in this drug-possession case: while this person possessed drugs, would any of his rights under the Bill of Rights survive?
Wouldn't "lying to a federal prosecutor" be an example? -- i.e., "speech in furtherance of a crime"?
Here, the issue is how to analyze "possession of a gun in furtherance of a crime." There are three elements: 1) possession, 2) in furtherance, and 3) crime. If I'm reading this right, the problem is, what is the threshold of 1 -- e.g., accessible and readily available for use; constructive possession? -- so that, given a certain kind of 3, we may infer 2 without violating the defendant's prior right to possess a firearm for self-defense.
Heller articulates the broad right to keep arms at home for self defense. Clearly, we'd be wrong to conclude that "keeping arms at home for self defense" is by itself enough to support an inference of "in furtherance", regardless of the crime involved. There must be something, some fact, to distinguish the exercise of a right with the abuse of that right.
I mean, right?
An Act to protect American children from the scourge of the drug Marijuana.
1. Advocacy of marijuana legalization by any person in possession of marijuana is punishable by life in prison.
Like the laws prohibiting the possession of firearms by a person who is committing a (presumably related) crime, this law would prohibit the exercise of a right by persons committing a related crime. The right to freedom of speech is a Constitutionally-protected right -- but so is the right to bear arms. Neither the First nor the Second Amendment has an exception pertaining to those who possess or distribute illegal drugs.
Since it is purportedly legitimate to say, "Anyone who advocates legalization may not possess marijuana," it should be equally legitimate to say, "Anyone who possesses marijuana may not advocate legalization," at least under the Seventh Circuit's logic.
If the answer is, "No way Jose!", then the rule violates the Constitution.
I think you could argue that a technology company is not possessing the firearm to further the criminal activity. Of course, that does raise an interesting issue for someone operating, say, a gunsmithing business out of their home against zoning or business licensing laws :)
What if someone operating a gun shop failed to collect sales tax for them?
The one jury I ever sat on was a heroin case. Part of the evidence was the firearms collection of the pusher.
He had a loaded long gun (or in one case, pistol) behind every door in his house.
I am agnostic about the wisdom or usefulness of the 2nd Amendment, but spare me the convoluted lawyering. He wasn't keeping rifles behind every door to deal with rodents.
What if the guns were unloaded and under the bed, or in the bedroom closet?
What if the guns were in a gun safe?
What if the gun in question was an antique or reproduction of an antique that happened to be up on a rack for display purposes?
What if the guns in question were quite obviously owned for sporting purposes (ie., stored in a den full of stuffed animals, or shooting trophies)?
What if they were just plausibly owned for sporting purposes, for instance if the person has a long unbroken record of buying a hunting license every fall, and the guns in question are adapted to that purpose?
Sorry, I just see too many gray areas.
I don't buy it. How about
Possessing a firearm is a protected right and, imo, shouldn't be used as the antecedent to anything. Now, you can "rescue" this by Eugene and Dilan's formulation where there is an implied " in furtherance of " that modifies the felony-part. That formulation is perfectly fine by me, but it's not what the statute says. Judicial canon says to interpret laws away from conflict with the Constitution, but the wholesale addition of a "nexus" requirement where one doesn't exist in the statute seems like too large a task for mere "avoidance interpretation"
That's a fine sentiment, but I don't see any way that this will work in practice.
How does whether someone has guns, or how they keep them, tell you anything about whether they're dealing heroin?
Suppose that he had no guns - would you acquit?
And no, correlation won't save you. Heroin dealers are more likely to wear pants than the general population. Are you going to accept "wears pants" as evidence?
Andy Freeman, we convicted on the basis that he had heroin in the house and that there was testimony that he had sold it. The firearms were introduced, I suppose, as corroborative evidence that a dangerous and illegal business was under way.
Not introduced, but known to me because I knew the house, was the fact that it was a fortress, with steel bars all around (unique in that neighborhood).
Not very much heroin was found but circumstances suggested that a lot more probably had moved through.
The jury's job wasn't difficult, since the defendant didn't offer a defense.
(I've attended many jury trials. This one was unique in my experience. The defendant was a fire captain, one of the most prominent black men in a city with not very many prominent black people. The venire pool of about 150 was lily white. I watched the man carefully, and his face fell when the potential jurors walked in.
(It is my opinion that he was hoping for a jury nullification, that there would be one black juror who wouldn't be able to bear the shame of convicting such an [apparently] model citizen and he could get a hung jury and go for a plea. He was looking at the rest of his life in prison since he was nearly 60. The physical evidence against him was overwhelming. He never paid any attention during the trial.
(I was the foreman. During deliberations, I asked the other men on the jury if they kept loaded firearms in their houses, and they all said they did. That's another reason I don't put much faith in the protestations of the gun nuts about how safety-minded they are and how they are protecting me from bad guys. I've covered too many gun "accident" stories over the decades. But it would argue that the mere presence of a loaded firearm in a dwelling would not [in Iowa] indicate a criminal enterprise. It was the distribution that helped tell the tale.)
Sometimes they go so far as to get it from actual federal laws. Unbelievable, I know.
Sounds like a bill of attainder on Bob Dole.
But, yes, all instances of ThoughCrime legislation are indefensible, unnecessary, and unenforceable (except capriciously).
1. The defendant stipulated in his plea agreement that he possessed the firearms "in furtheance" of the felony drug distribution. He later tried to retract this sworn factual statement and the court rejected it, finding his proffered retraction not credible. Thus, the defendant's argument that his firearms possession was for self-defense unrelated to the drug felony fails on the facts.
2. Given #1, above, there is a direct nexus between possession of a firearm and commission of a felony. Justice Scalia's dicta in Heller makes clear a majority of the Supreme Court believes that the Second Amendment does not invalidate §922(g)(1)'s general felon-in-possession prohibition. If mere status as a felon for some previous crime is a permissible ground to deny the right to keep and bear arms, then logically possession of firearms during and in furtherance of a felony also must be unprotected.
3. The consecutive sentence issue on the firearms count that bought the defendant an additional 60 months also is not troublesome. The Constitutionality of consecutive versus concurrent sentencing is well-settled. In this instance, Congress set up the statute to in effect make the possession of a firearm in furtherance of the felony a per se aggrivating factor. This is no more Constitutionally suspect than differentiating for sentencing purposes between the crimes of simple assault and assault with a deadly weapon. Or, to put it differently, the legislature is permitted to decide that if selling drugs is bad and should be punished, then selling drugs with a gun is worse, is a different enough situation to be a distinct crime, and should be punished more severely.
4. Why did Judge Easterbrook get uncharacteristically sloppy? He was clearly ticked-off that the Circuit's time was being wasted by a frivolous attempt to pull back a valid guilty plea. Note the lecture at the end of the opinion about the defendant being lucky he wasn't prosecuted for his lies:So, yes, sometimes easy cases make bad law. I hope this opinion will stay unpublished and won't clutter up F.3d.
Just this pinhead's view, for what it's worth.
Whether a gun in the bedroom of an apartment where drugs were being sold in other rooms meets the nexus is a factual question for the jury. Under the totality of the circumstance, facts like these might be relevant: (a) was the gun in an operable condition (loaded and ready for action versus disassembled or locked in a safe); (b) was the layout of the apartment such that the defendant might be able to access the gun quickly if a deal went bad (was it a few feet away from the drug-dealing room versus up a flight of stairs and down a long hall); (c) was the gun of a type that had, for example, legal "sporting purposes," and was there evidence it was used for such legal purposes (e.g, a hunting rifle and the defendant had a hunting license); and a host of other possibly relevant factual permutations.
That's an equal protection issue, which plays out differently. Because religion is a suspect classification, you can't draw legal distinctions between religious and non-religious people in criminal statutes except in narrow circumstances. (However, you could accomplish the same thing with an enhancement for anyone whom children are put in the trust in, which would include religious and secular figures.)
Gun possession is more like the "hate crime" doctrine of Wisconsin v. Mitchell. Laws prohibiting "hate speech" violate the First Amendment, but that doesn't mean it is unconstitutional to enhance the punishment of "hate crimes". The reason is because thinking bigoted thoughts, while protected under the First Amendment, is not a suspect classification that gives rise to strict scrutiny under the equal protection clause.
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