The case is U.S. v. McCane, decided yesterday. The majority rejected the defendant's Second Amendment claim by simply saying that the Court "explicitly stated in Heller that 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,'" and citing a recent Fifth Circuit opinion echoing this. But Judge Tymkovich wrote a concurring opinion, which said:

I join in Judge Murphy's cogent opinion, but write separately regarding certain issues raised by our Second Amendment holding ..., for two reasons....

My first point is that the felon dispossession dictum may lack the "longstanding" historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as "longstanding prohibitions on the possession of firearms by felons," is far from clear. To be sure, some sources would support the proposition. But more recent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities. Instead, they assert, the weight of historical evidence suggests felon dispossession laws are creatures of the twentieth — rather than the eighteenth — century. Together these authorities cast doubt on a categorical approach to felon dispossession laws.

This uncertain historical evidence is problematic in light of Heller's Second Amendment interpretation. Central to the Court's holding are a detailed textual analysis and a comprehensive review of the Second Amendment's meaning at the time of its adoption. After conducting this analysis and review, Heller concludes the right "to keep and bear arms" is a corollary to the individual right of self-defense. At the "core" of the Second Amendment right, the Court found, is self-defense in the home.

Knowing the meaning of the Second Amendment right and having identified its individual nature, the issue becomes what limits the government may place on the right.... For example, the broad scope of 18 U.S.C. § 922(g)(1) — which permanently disqualifies all felons from possessing firearms — would conflict with the "core" self-defense right embodied in the Second Amendment. Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons. The validity of § 922(g)(1) was not at issue in Heller, so presumably the lower courts would be left to sort out this restriction — as well as other restrictions — and to wrestle with any complexities in applying Heller. But the issue was not really left to the lower courts.... Heller's felon dispossession dictum is particularly noteworthy considering the scope of the § 922(g)(1) ban. The statute prohibits firearm possession by any person convicted of a felony, irrespective of the nature of the felony, the length of time elapsed since the felony conviction, and the treatment of the felony by the state in which the felon resides. Every individual right has exceptions, of course, and the application of § 922(g) to a violent felon such as Mr. McCane would appear appropriate under any Second Amendment reading. After all, felons lose out on fundamental rights such as voting and serving on juries, and face discrimination that need only survive rational basis review. The question may be less clear, however, where the underlying felony is non-violent, such as financial fraud, perjury, or misleading federal investigators. But § 922(g)(1) encompasses these (and other) non-violent felons as well, permanently restricting their Second Amendment right to self-defense.

This brings me to my second point. The Court's summary treatment of felon dispossession in dictum forecloses the possibility of a more sophisticated interpretation of § 922(g)(1)'s scope. Applying Heller's individual right holding to various regulations would be complicated, and it is of course possible (if not probable) that different courts would articulate different standards. Already a number of commentators have considered and proposed approaches to the existing gun laws and the proper level of constitutional scrutiny. But the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts. In this case, for example, we need not address the standard of review applicable to gun dispossession laws — strict scrutiny, intermediate, rational basis, or something else — or the examination of the governmental interests in light of the standard of review.

Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court's clear direction, this is perhaps how it should be. After all, "our job as a federal appellate court is to follow the Supreme Court's directions, not pick and choose among them as if ordering from a menu." I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.

Note also that Judge Tymkovich's view is especially important in light of U.S. v. Engstrum, where a federal district court in Utah held that a defendant who is prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor has a Second Amendment right to present an affirmative defense "that he posed no prospective risk of violence." (I take it this must mean no prospective risk of violence beyond that posed by the average person.) The jury, under the trial court's approach, would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

The government has filed a mandamus petition, asking the Tenth Circuit to review this decision; Judge Tymkovich might be called upon to consider this petition, either if it comes to him as a panel member, or if a panel decision in the case leads to a call for en banc review.

Thanks to How Appealing for the pointer.