Tenth Circuit split on gun ban for misdemeanants:

The Tenth Circuit divided 2-1 today on the constitutionality of banning guns for persons who have been convicted of a domestic violence misdemeanor. The issues arises because federal prosecutors petitioned for a Writ of Mandamus, to stop a Utah district judge from employing a jury instruction which the prosecutors did not want. The issue was whether a domestic violence misdemeanant can be criminally convicted for possessing a gun if the jury decides that he poses no threat of violence, after the defendant raises the issue as an affirmative defense.

In case no. 09-4145, Judges Hartz and Kelly voted to issue the Writ of Mandamus which the prosecutors had sought. Judge Murphy dissented, and would have set the issue for briefing.

The case involves two separate issues: first, whether the federal d.v. gun ban is constitutional in all circumstances, and second, whether the answer to the first question is so clear as to make mandamus appropriate. On the second question, at least, I think Judge Murphy has the better argument, although the majority opinion has some valid points.

As for Judges Hartz and Kelly, who authored the majority opinion to issue the writ, Judge Hartz's record on the Second Amendment suggests hostility to the right. Judge Kelly's record, in contrast, demonstrates that he takes the right seriously, and attempts to apply it conscientiously to the cases at bar. (As detailed in my Denver University Law Review article, The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error, which was recently cited in a concurring opinion by Judge Tymkovich in United States v. McCane, upholding the felon-in-possession statute.)

Bama 1L:
How common is mandamus on a jury instruction?
8.13.2009 11:04pm
SuperSkeptic (mail):
Do the dissents usually come before the opinion of the court in the 10th?
8.14.2009 8:20am
SuperSkeptic (mail):
...oh I see... that's what I get for commenting before reading...
8.14.2009 8:29am
Houston Lawyer:
The law in question should fail for lack of a nexus to interstate commerce. I would really like to see a federal law making anyone ineligible to possess a firearm also ineligible to vote.
8.14.2009 9:05am
MarkP (mail):
The majority does not seem to decide conclusively that the instruction is unlawful, only that the instruction may not be given so that, should the jury convict in the absence of the instruction, the court of appeals can then determine the lawfulness of the instruction on direct appeal. This is a waste -- and it demeans the right to trial by jury and the role of the trial judge. If the court of appeals believes that the instruction is unlawful, they should determine that now. Otherwise, mandamus is not appropriate. I'm with the dissent on this one.
8.14.2009 9:19am
Just Dropping By (mail):
How common is mandamus on a jury instruction?

While I haven't specifically researched the issue, I know that in over five years of practicing law in the Tenth Circuit I've never even heard of a party attempting to get a writ of mandamus regarding a jury instruction, let alone obtaining one.
8.14.2009 9:21am
The law probably is unconstitutional when applied to a non-felony, but what the District Court did struck me as pretty crazy -- inserting a new element into the statute that did not exist. The trial should be about two things: first, did the guy possess a weapon in violation of the statute, second, is the statute unconstitutional? The only one the jury addresses is the first. The second is for the appeals process.
8.14.2009 9:23am
It would seem that the federal government could regulate marital intercourse using a condom or an abortion using a scapel which has previously passed through interstate commerce -- after all, statements expressly contrasting private matters from interstate commerce have never been repudiated, not to mention Griswold v. Connecticut's characterization of privacy as involving matters outside government's powers to regulate. The Griswold court noted the distinction between marriage on the one hand and interstate commerce on the other. If what is included in the governmental power cannot be included in matters outside it, i.e. if interstate commerce is outscope of privacy, than the expansion of interstate commerce jurisdiction to include any future private use of an object that has previously passed through interstate commerce would appear to render Griswold v. Connecticut's logic a nullity. It's simply no longer true as evidentiary fact that these matters are outside the scope of interstate commerce jurisdiction, that most public and most obviously non-private of jurisdictions.

Matters which have a substantial effect on interstate commerce cannot be characterized as private, at least by the logic the Court actually used in establishing the concept of privacy in the first place. This logic assumes a certain degree of limitation to indefinite expansion of the commerce power's scope. If everything or virtually everything gets found to have a substantial effect on interstate commerce, then there is no or virtually no privacy: it becomes a category with no or virtually no content. And this seems to be the case (or virtually the case) now.
8.14.2009 9:31am
FWB (mail):
And of course, Judges NEVER permit their personal biases to affect their decisions.


Tiocfaidh ar la!
8.14.2009 11:28am
Joe T. Guest:
the expansion of interstate commerce jurisdiction to include any future private use of an object that has previously passed through interstate commerce would appear to render Griswold v. Connecticut's logic a nullity.

A funny statement, because Griswold's rational incoherence and ipse dixit reasoning have already rendered it a nullity, at least if you are expecting it to stand for something other than an naked exercise of judicial power. Were Congress to attack Griswold using the Commerce Clause, they'd be attempting to murder a man who has already committed suicide for all practical purposes, though Congress could still stab the lifeless body.

On the other hand, it would be satisfying in a 'pox on both their houses' way, to see a blatant and dishonest act of judicial overreach undone by a blatant and dishonest act of congressional overreach. Perhaps then the Executive Branch could refuse Congress' direction to interfere in private matters, in an act of Executive Branch overreach that would make for a perfect little equilateral triangle of federal government misbehavior... In the absence of government doing the right thing I'll settle for the government being unable to do anything.
8.14.2009 11:44am
Doug Berman (mail) (www):
As detailed in this post, I am quite disappointed by David's tepid reaction to the Tenth Circuit's panel ruling that, from my reading, shows significant antipathy toward serious consideration of Second Amendment rights.

I hope that the defendant here seeks en banc review of the panel's order. I wonder if David --- or the NRA or any other persons so eager to assail Justice Sotomayor for her precedent-respecting Second Amendment work as a circuit judge --- might vocally support the defendant in this case when the Tenth Circuit judges on this panel have gone far beyond precedent to reject a seemingly reasonable Second Amendment claim.
8.14.2009 11:56am
CalAttnyKen (mail):
Having clerked in the 10th cir. I can tell you this is not surprising.
8.14.2009 2:03pm
Christopher Cooke (mail):
I agree with the majority on this point: the district court should not have created an affirmative defense in a statute that does not contain "prospective risk of violence" as an element. Likewise, I agree with the dissent's observation that the district judge's idea would not give fair notice to someone if he or she has violated the statute if it turns on whether he or she is later found to have a propensity for violence. Therefore, I would permit the trial to go forward and then fully consider the constitutionality of the statute if the defendant is convicted.

I think that is the most sensible approach. Under Heller, the statute may very well be unconstitutional. However, unlike other posters, I would have to examine the cases and research this issue, I don't have a "gut" reaction to it. I think you would have to look at whether persons convicted of misdemeanors historically have been deprived of other rights deemed fundamental. I don't know the law in this area to offer an off the cuff response.
8.14.2009 2:22pm

If what is included in the governmental power cannot be included in matters outside it,

This makes no sense. Raising an army is within the governments power. Establishing an official church to which recruits must convert is outside. So Congress can raise an army but they cannot raise an army that is required to convert to a religion.

In general, the fact that a power is enumerated does not render a nullity the other provisions of the Constitution. Congress cannot violate the Bill of Rights in exercise of its enumerated powers.
8.14.2009 3:36pm
Christopher Cooke: Speaking from experience as an admittedly young criminal atty, in state courts while the misdemeanor case is pending and the def is out on bond, restrictions on possession of weapons, leaving the state, etc...apply. However, assuming a conviction or plea of guilty, those conditions usually disappear (unless of course the def is on probation or conditional discharge or court supervision and those restrictions are part of the sentence/disposition - which they often are).

The rules on this vary from state to state. However, in my state, once the def is completely 'done' with the misdemeanor case, most if not all restrictions of the sort mentioned here are lifted. Which makes some sense, given the fact that the legislature that created the law and the penalty range decided it didn't deserve to be a felony with the attendant collateral consequences that go with it.

Defense attys and prosecutors sometimes work deals out that involve a defendant voluntarily relinquishing a right in exchange for a more lenient disposition.

As far as federal court- im still trying to figure out why the feds have the time and resources to prosecute misdemeanors AT ALL. Or most felonies. Or really any crime that by all rights should be handled and can be handled by the State's exercising their police powers. The expansion of the federal police power the last several decades is sickening and it keeps getting worse. But hey, at least we have the highest per capita incarceration rate in the world!
8.14.2009 3:52pm
The case that the misdemeanor d.v. gun ban is unconstitutional under Heller is very weak, given that it approves the gun ban in the case of non-violent felons in dicta there (widely followed by the lower federal courts) and given that d.v. misdemeanor convicts were singled out as a class of criminally convicted people involving a high risk of future violence as a class by Congress.

The interstate commerce argument is also a weak one under the current state of law which has been in place for two generations.
8.14.2009 4:10pm
DennisN (mail):

d.v. misdemeanor convicts were singled out as a class of criminally convicted people involving a high risk of future violence as a class by Congress.

And that is in itself weak, as the threshold for a DV conviction is ridiculously low. The violent extremes of DV are pretty horrific, but if you can be convicted for essentially any physical contact, the lower limit is extreme, too.
8.15.2009 2:28pm
Kevin R.C. O'Brien (mail) (www):
This is largely a political problem and needs to be attacked on politics, more than it is a legal problem. The Lautenberg Amendment (this law) was passed as a increment towards Lautenberg's preferred solution, a complete ban on non-governmental firearms. We have a silly law, and a set of prosecutors who are pursuing it with scorched-earth doggedness.

These two judges and -- more importantly -- these prosecutors have shown they stand with Lautenberg and against the 2nd. The prosecutors are important because most prosecutors see themselves as a larval form of politician, and have political ambitions. (That also answers the question of why federal prosecutors choose to pursue malum prohibitum victimless crimes that are slam dunks, rather than malum per se violent crimes that take more time -- and might spoil the statistics one needs for that coming Me For Congress ad.

Who are these anti-gun, anti-freedom, soft-on-real-crime, anti-constitutional prosecutors in Utah? Name 'em and shame 'em, and let's make sure their political careers come to a disappointing end before they get going.

Likewise, the anti-gun judges can't be dumped from Appeals, but they can be prevented from rising higher.

If someone does something bad with a gun -- that's a good time to prosecute him. Not like Bullwinkle would demand, for "what he's going to do next week."
8.16.2009 8:54am
Kevin R.C. O'Brien (mail) (www):
I've now read all of the comments that I missed and I'd just like to congratulate the VC commenters on the way they bring their experience to bear on the law. Every time I come here I learn new things from the commenters as well as from the professional/professorial conspirators like Dave Kopel and the Volokhs.

Thanks particularly to the lawyers who shared legal reasoning pro and con, and their own experiences before (and behind) state and federal courts. IANAL so your insights really help me understand what's going on.

Still think it's a bad law, and still think the fix is political; most of the courts will follow most of the laws that come before them, which sure beats a dictatorship. Thanks again to the insightful commenters!
8.16.2009 9:01am
Kevin R.C. O'Brien (mail) (www):
OK last post, really.

I think Dave Kopel's law review article...
Denver U Law Review
...explains why he was somewhat blasé about this decision, and if Doug Berman rereads it he'll see why Kopel isn't as worked up. Kopel just isn't expecting much from this court, based on its record.

It might be hoped that the Tenth Circuit will undertake a more serious treatment of these unresolved issues than have some of the post-Heller district courts, whose analyses have often been glib and shallow.

Glib and shallow is also a fair description of many of the Tenth Circuit’s pre-Heller cases on the Second Amendment. Some of those cases amounted to barely more than a judicial ipse dixit, and those cases certainly did not inspire confidence that the Circuit had treated the constitutional issues with appropriate seriousness and diligence. Pre-Heller, the Tenth Circuit’s rule for the Second Amendment was "the Government always wins.”

Plus ça changé, plus c'est la même chose.

Kopel hoped for a more serious treatment of the Amendment (2nd, not Lautenberg) in the 10th, but does point out in the article that there are paths to continuing to be a rubber stamp for prosecution. This decision shows that his analysis was bleakly prescient: the one thing these judges aren't going to do is reconsider these cases.
8.16.2009 9:15am

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