Mullenix v. BATF (E.D.N.C. July 2, 2008):

Plaintiff is a federally-licensed firearms dealer, and alleges that the ATF arbitrarily denied him permission to import a reproduction of a World War II-era German machinegun[, the BD44]....

Title 18, section 925(d) of the United States Code provides that certain types of firearms may be imported into the United States. Among these are firearms “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” ... [T]he ATF determined that the BD44 was not importable under section 925(d)(3) because it was not “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” Plaintiff challenges the ATF's decision. Plaintiff argues that the ATF's interpretation of section 925(d)(3) is arbitrary and capricious, and seeks damages for lost income resulting from his inability to sell BD44s to prospective military re-enactors....

Plaintiff first argues that “[a]ll bans [on gun ownership] are clear unconstitutional infringements to the right to own and bear arms.... [In Heller,] the Supreme Court rejected the notion that the Second Amendment right is unlimited:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right [to keep and bear arms] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

In light of Heller, plaintiff's facial challenge to section 925(d) fails.

Alternatively, plaintiff contends that, although Congress has the power to regulate the individual right to keep and bear arms, “regulation” of that right is limited to reasonable time, place, and manner restrictions. According to plaintiff, Congress may not “regulate” his individual right to keep and bear arms by declaring that he may not own certain types of arms, and he may accordingly own almost any type of weapon he chooses (including the BD44) so long as he complies with reasonable time, place, and manner restrictions. See [plaintiff's brief] at 7-8 (“[N]ever does Congress have the right ... to ban the ownership of any defensive arm equivalent or superior to that used by the standing armies of the United States.”).

Unfortunately for plaintiff, the Supreme Court rejected this argument in Heller. See Heller at *26 (construing United States v. Miller, 307 U.S. 174 (1939), to hold that “the type of weapon at issue [a sawed-off shotgun] was not eligible for Second Amendment protection”); id. (“Miller stands ... for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”); id. at *27 (finding it a “startling reading” of Miller to suggest “that the National Firearms Act's restrictions on machineguns ... might be unconstitutional”); id. at *28 (“[T]he right [is] not a right to keep and carry any weapon whatsoever....”). Accordingly, in light of Heller, the court rejects plaintiff's challenge to section 925(d), and rejects plaintiff's claim that the Second Amendment entitles him to possess the BD44 in this case.

Not a surprising result, or likely an important one, but it is one of the first, so I thought I'd note it.

UPDATE: When I posted this, I labeled this the "first" post-Heller Second Amendment opinion -- forgetting that Lexis sometimes has unpublished cases that Westlaw doesn't, and neglecting (for no good reason) the fact that some unpublished cases never make their way to Lexis or Westlaw and a few others take some time to get posted. I've revised the title accordingly, and will blog shortly on at least one earlier post-Heller Second Amendment case. Thanks to commenter ClosetLibertarian for reminding me about this.

It's U.S. v. Dorosan (E.D. La.), in which defendant -- a postal worker -- was found guilty last week of possessing firearm on postal property. The postal worker had a gun in the glove compartment of his car, which was parked in the Post Office lot; but this was found because a postal inspector, Norbert Lewis, "discovered a black canvas bag on the workroom floor next to a letter case for Route 5301. Said route was worked by the defendant ... on the previous day. Lewis did not know to whom the bag belonged so he opened the bag and found a magazine with twelve (12) rounds or .40 caliber hand gun ammunition and three (3) empty shell casings in the bag."

The magistrate judge's opinion rejecting Dorosan's Second Amendment challenge was filed last Monday; the discussion is fairly long, but I thought I'd offer a few excerpts:

Both Heller and Emerson [the 2001 Fifth Circuit case that anticipated the Heller individual rights ruling] ... make it clear that the “right to bear arms” –- albeit an individual fundamental right of all Americans secured by the Second Amendment –- is not unlimited....

The Property Clause of the United States Constitution grants Congress the right to regulate federal property. It provides: “The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the territory or other Property belonging to the United States....” The Fifth Circuit has routinely upheld federal regulations that are designed to promote workplace and public safety on government property....

Clearly, 39 C.F.R. § 232.1(1)[,] which bans possession of weapons solely on postal property is not unconstitutional as applied. Neither Heller nor Emerson involved gun control regulations banning possession of “arms” on federal property. Indeed, the Supreme Court in Heller described the District’s statute as a law that “totally bans handgun possession” extends to the home and “requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.

The regulation at issue in this case is far more limited in application in that it (1) applies only on the confines of properly noticed postal property, (2) is sanctioned by both the Property and Postal Clauses of the U.S. Constitution and (3) falls within the Heller Court’s category and non-exhaustive list of excepted longstanding prohibitions on carrying firearms –- i.e., “sensitive places such as schools and government buildings.”

Indeed, federal law (OSHA) requires employers to abate workplace hazards and encourages employers to take measures to prevent gun-related injuries. Surely, the United States Postal Service would be remiss if it failed to practice what federal law requires. Without question, § 232.1(1) bolsters the United States Postal Service’s zero tolerance for workplace violence and is a regulation designed to maintain safety and order on postal property. 18 U.S.C. § 930 (a), which prohibits possession of dangerous weapons, serves the same purpose within federal facilities. Congress has the authority to regulate safety of the post office and its property, notwithstanding the individual right to bear arms in the home, “where the need for defense of self, family and property is most acute.”

The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas. Its reach does not extend beyond the noticed, gated confines of United States Postal Services’ property. It is narrowly tailored to effect public and workplace safety solely on postal property consistent with the Property and Postal Clauses. Similarly, 18 U.S.C. § 930(a) criminalizes knowing possession of dangerous weapons, but only within the confines of a federal facility/building. Regulations forbidding the possession or carrying of firearms “in sensitive places” such as federal and/or postal property abound; these longstanding prohibitions have been upheld.

I think the invocation of an enumerated Congressional power as a counterweight to an individual right -- what I call the Constitutional Tension Method -- is a mistake. All things that Congress does must theoretically be pursuant to some enumerated power. The D.C. gun ban was enacted, indirectly, through the enumerated power to legislate for the District of Columbia (though Congress exercised that power by letting the D.C. City Council enact ordinances, subject to the possibility of Congressional repeal). The point of the Bill of Rights, whether we're talking about the First Amendment or the Second or the Fourth or any other, was to constrain Congress in the exercise of its powers. (I wrote about this in the First Amendment context in this article.)

I also think the argument based on federal health and safety law is at the very least too cursory, and likely unsound. The USPS "would be remiss if it failed to practice what federal law requires," but federal law doesn't require gun bans by employers, and even if it did there would still be the question of whether such a requirement is constitutional under the Second Amendment. The court just seems to be assuming that the federal law is constitutional, without explaining why this is so.

Nonetheless, the other arguments may well be correct, especially given the language in Heller; I can't speak with complete confidence about the subject. I just wanted to flag my disagreement with the reliance on the enumerated power and on OSHA.

Note: While I was at first skeptical about the claim that "The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas," I take it that the court is assuming (quite likely correctly) that Dorosan could have parked the car on a public street outside the post office.

The brief decision from Senior Judge Milton Shadur is in the newly filed lawsuit challenging Chicago's handgun ban, McDonald v. City of Chicago (N.D. Ill.); it's minor, but I thought I'd note it nonetheless, because it might foreshadow what we might see in the future in this important case:

This newly-filed action has been assigned to this Court’s calendar. From a reading of the Complaint it appears that plaintiffs’ counsel may view this litigation--which is entitled to serious consideration on its own merit--as a vehicle for some other purposes as well. This memorandum order is issued sua sponte to strip the Complaint of some surplusage--listed in the order of appearance, rather than in any effort to rank the stricken allegations in terms of importance--that does not conform to the directive of Fed. R. Civ. P. 8(a) as to the content of a federal complaint.

1. Because yesterday’s Supreme Court decision in District of Columbia v. Heller, No. 07-290, 554 U.S. __, 2008 WL 2520816 (U.S. June 26) requires no independent justification for the ownership and possession of firearms under the Second Amendment (see Complaint ¶34), all but the first sentence of each of Complaint PP1 through 4 are stricken.

[Footnote, slightly moved: Nothing in the Supreme Court's opinion addresses the registration and licensing requirements targeted by the Complaint (see Heller, 2008 U.S. LEXIS 5268, [WL] at *28 n.26 and *30), and no view is of course expressed here as to such substantive issues.]

2. Complaint ¶8 appears to reflect an inaccurate characterization of the form of government that is prescribed for the City of Chicago. Absent some showing to the contrary by plaintiffs’ counsel, that paragraph will be stricken, Richard Daley will be dismissed as a defendant and all of the Complaint’s references to “Defendants” will be converted to singular form.

3. Because 28 U.S.C. §§2201 and 2202 are not independent sources of federal subject matter jurisdiction, reference to those sections is stricken from Complaint ¶9.

4. Complaint ¶¶40 through 45 are stricken as patently inappropriate.

5. All of the Complaint’s references to “Cause of Action” are also stricken. In that respect, see NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992)).

Here are the relevant portions of the complaint:

1. Plaintiff Otis McDonald is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. McDonald resides in a high-crime neighborhood and is active in community affairs. As a consequence of trying to make his neighborhood a better place to live, Mr. McDonald has been threatened by drug dealers.

2. Plaintiff Adam Orlov is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Orlov is a former Evanston, Illinois, police officer. As a police officer, Mr. Orlov was entrusted with a handgun for the purpose of defending himself and others from violent crime.

3. Plaintiff Colleen Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Ms. Lawson’s home has been targeted by burglars.

4. Plaintiff David Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Lawson’s home has been targeted by burglars....

40. Many Chicago gun owners fail to re-register their firearms every year. Among these recently was Alderman Richard Mell, whose firearms became unregisterable when he failed to timely renew his registration certificates.

41. Accordingly, Alderman Mell proposed an ordinance amending the law to permit, for one month, lapsed guns to be re-registered if their owners had attempted to re-register their guns between May 1, 2007 and April 1, 2008, a period that would have covered his lapsed firearm registrations.

42. Defendant Mayor Daley endorsed Mell’s proposal, stating: “A lot of people go back and forth to their summer homes ... A lot of people move their shotguns. A lot of ’em are bird hunters, gun collectors.... They move ’em back from Wisconsin, Michigan, [other] parts of Illinois.”

43. Defendant Mayor Daley added: “It’s one time [for] one month ... You want to have ’em register. There’s nothing wrong with that ... People want to just register. A lot of ’em bring ’em back from hunting trips. So, why not?”

44. Speaking of Alderman Mell’s desire to re-register his lapsed guns, Defendant Mayor Daley stated: “He has a home in Wisconsin. He brings ’em back and forth. He’s not running out with a shotgun and hurting people.

45. The proposed re-registration amnesty bill was passed by the Chicago City Council, with the amnesty period extended to 120 days. The fee for re-registering a lapsed firearm under the amnesty bill is $60.00.”

My questions: (1) The main issue in this case is to what extent the Second Amendment applies to the states via the Fourteenth Amendment. It's at least conceivable that the Amendment might apply to the states differently than it does to the federal government; this is an unlikely result, but one the Court reached in the early 1970s as to the Jury Trial Clause, which has been read as requiring unanimous juries in federal prosecutions but not state prosecutions. If this is so, then is it clear that the remaining sentences of paragraphs 1 through 4 are surplusage? Or is the judge simply assuming that the Second Amendment is either fully incorporated or not at all incorporated, so that Heller view -- which is that the right to keep and bear arms doesn't require any special justification on the claimant's part -- is dispositive?

(2) Why doesn't the material related to the reregistration ordinance potentially undermine the strength of the government's likely argument that the ordinance's constraints on law-abiding citizens are really needed to fight crime (quite independently of the digs at the supposed self-dealing by Chicago officials)? True, it might prove to be irrelevant, but that's not clear now. Or is it just that the proper place for introducing such matters is at trial and in pretrial motions, rather than in the complaint?

Johnson v. United States (E.D. Mo. July 2, 2008), summarily rejects a felon's Second Amendment challenge to the federal ban on felons' possessing firearms:

Moreover, on June 26, 2008, the Supreme Court completely foreclosed Movant's Second Amendment ... constitutional challenge to this statute:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Johnson, who was representing himself, had felony convictions from the mid-1990s for assault with a deadly weapon, theft, and escape from custody. The pistol that he possessed in 2005, when he was arrested for being a felon in possession of a firearm, had been stolen. Because of Johnson's criminal history, which also included "a series of traffic and drug-related misdemeanors, and an additional misdemeanor resisting arrest," he was sentenced to eight years in prison.

Here's U.S. v. Lewis, from the District of the Virgin Islands:

Malik Ostalaza ... and his co-defendant, Ronald Lewis, Jr., were charged in May, 2008 in a five-count indictment. Count One charges Ostalaza with possession of a firearm with an obliterated serial number, in violation of Title 18, Section 922(k) of the United States Code (“Section 922”). Counts Four and Five charge Ostalaza with unauthorized possession of a firearm, in violation of Title 14, Section 2253(a) of the Virgin Islands Code [which essentially appears to be a ban on possessing a firearm without a license -EV]. Ostalaza is not charged in Counts Two and Three.

Ostalaza now argues that Counts One, Four and Five should be dismissed because they violate the Second Amendment of the Constitution. In his motion, Ostalaza neglects to substantiate that argument with citations to any authority. Instead, Ostalaza points to District of Columbia v. Heller, a case that was pending before the Supreme Court at the time his motion was filed. Ostalaza states only that he “reserves the right to challenge” the indictment on Second Amendment grounds.

In United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997), the Court of Appeals for the Third Circuit explained that “the Second Amendment furnishes no absolute right to firearms.” Relying on its decision in Rybar, in United States v. Willaman, 437 F.3d 354, 356-57 (3d Cir. 2006), cert. denied, 547 U.S. 1208 (2006), the Third Circuit rejected the defendant’s contention that Section 922 violates the Second Amendment. In reference to the defendant’s argument that Rybar “is simply bad law,” the Willaman Court stated that “plainly [Rybar] is binding on this panel.”

[Footnote: Moreover, while the Supreme Court acknowledged in Heller the right of the individual to possess a firearm unconnected with service in a militia, the Court also held that that right is not unfettered. See 2008 U.S. LEXIS 5268, at *95 n.26 (identifying “presumptively lawful regulatory measures” and noting that the Court’s list of those measures “does not purport to be exhaustive”).]

It may well be that the defendant didn't provide enough argument to support his motion to dismiss. I'm also pretty sure that the courts will find that the right to keep and bear arms isn't substantially burdened by the ban on knowingly possessing a firearm with an obliterated serial number; and they may well uphold the Virgin Islands license requirement, or conclude that only someone who has tried to get a licensed but been denied one is entitled to challenge the requirement.

But the court's reliance on precedent strikes me as quite weak: Rybar was decided by the Third Circuit on the theory that the Second Amendment only protects gun possession when it has a "connection with militia-related activity." Heller rejects that theory, which means that Rybar and Willaman are no longer good law.

Certainly in the Third Circuit (and to my knowledge in all other circuits) "a subsequent panel may depart frm a previous panel's decision if required to do so by an intervening Supreme Court decision," Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 2008 WL 2420729 (3rd Cir. June 17) (paraphrasing earlier precedent). I take it that district courts can and should do the same: "[W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority[,] ... a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

So I don't think the district court was entitled to punt the matter to the pre-Heller collective-rights precedent. It needed to do the Heller analysis (or, if appropriate, decline to deal with the Second Amendment question, if the litigant hadn't adequately argued it). And simply saying that under Heller the "right is not unfettered" isn't an adequate justification for the court's decision, either: Obviously some fetters are permissible but others aren't, so the question is why these particular gun controls are justified given the Heller reasoning.

UPDATE: I should note that, technically speaking, the Second Amendment might not apply to the Virgin Islands of its own force: The Insular Cases from the early 1900s held that only some constitutional rights apply to such territories, and the jury rights (grand jury, criminal jury, and civil jury) and the Second Amendment have often been seen as not being included. Nonetheless, Congress has expressly applied "the first to ninth amendments inclusive," except the Grand Jury Clause, to the Virgin Islands.

Monday, the magistrate judge in U.S. v. Dorosan, which I blogged about here, issued a further opinion, including this on the Second Amendment question (which is whether the federal government could criminalize the bringing of guns onto post office property, including leaving them in a car parked in the parking lot):

The Court has considered defense counsel's argument that Dorosan's vehicle is an extension of his home; however, that result obtains only when the vehicle is not parked on postal property where access is restricted. In this case, the restricted employee parking and loading area where Dorosan parked his vehicle during his shift bears signs that advise all who enter the gates, as follows:

Vehicles and their contents brought into, while on, or being removed from restricted nonpublic areas are subject to inspection. A prominently displayed sign shall advise in advance that vehicles and their contents are subject to inspection when entering the restricted nonpublic area, while in the confines of the area, or when leaving the area. Persons entering these areas who object and refuse to consent to the inspection of the vehicle, its contents, or both, may be denied entry; after entering the area without objection, consent shall be implied. A full search of a person and any vehicle driven or occupied by the person may accompany an arrest.

An area, such as the Gretna Post Office's employee parking lot, which bears warnings the likes of that aforestated can hardly be analogized to "home sweet home" or an extension of same. By the same token, privately owned vehicles parked on such "postal property" cannot be reasonably be considered an extension of home. The "postal property" at issue more closely approximates one of those "sensitive places" excepted by the Supreme Court in Heller, the Court's latest opinion addressing the Second Amendment "right to bear arms." Certainly a loaded semi-automatic weapon, even if secured in the locked glove compartment of a privately owned vehicle, creates an opportunity for violence on such "postal property" -- i.e., a "sensitive" area where access is restricted for reasons of facilitating the movement of inbound and outbound mail entrusted to the USPS.

[Footnote, moved: In Heller, the Supreme Court cautioned that "nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places ...." District of Columbia v. Heller (holding that the Second Amendment of the Constitution of the United States secures the fundamental right of all Americans to bear arms).]

Eradicating the potential for deadly workplace violence and ensuring the safety of both Government employees and the public on "postal property" is exactly the security measure that the regulation at issue was designed to effect. The regulation is an adjunct of the Postal Service's policies and more particularly the "zero tolerance" of workplace violence. Indeed, many of those who use postal facilities, including postal workers, do so from necessity, not choice; many members of the public must go to a post office to conduct their business and personal correspondence, carrying cash for stamps or money orders. Postal employees must enter and exit the postal property at issue carrying the U.S. mail.

As previously addressed in this Court's prior opinion, the postal regulation at issue (39 C.F.R. § 232.1(l)) passes Second Amendment constitutional muster and is reasonable as applied to Dorosan. The Government has a significant interest in protecting the integrity of the purposes to which it has dedicated the property (facilitating postal transactions) and ensuring the security of postal employees and the public who must: (1) visit postal property to conduct official and personal business; (2) wait single file in roped off lines inside of postal facilities; (3) idle in vehicles single file in "snorkel lanes" 21 on postal property to use "drive and drop" mail receptacles placed outside of the Post Office building; and (4) carry cash or other legal tender for stamps, money orders, passports and other goods and services provided by the United States Postal Service.

Noting the fact that there were no signs prominently displayed outside of the Gretna Post Office building publishing the regulation's prohibition against carrying firearms (§ 232.1(l)) or animals (§ 232.1(j)) on "postal property," the defendant argued that the statute was vague, overly broad and unconstitutional as applied to the defendant. More particularly, defense counsel suggested that the regulation effectively outlaws conduct including matriculating the drop box lane in a vehicle with either a firearm or an animal safely stowed within its confines. The undersigned Magistrate Judge expresses no opinion whatsoever as to the constitutionality of regulation's ban on carrying firearms or animals in public areas without official purpose -- i.e., operating a vehicle through the "snorkel lane" of the Gretna Post Office while accompanied by a pet Shih Tzu, other non-seeing eye dog or, perhaps, armed with a loaded handgun stowed in the glove compartment. Neither of those issues are before the Court in this case, which involves the prohibited conduct of carrying and storing firearms without official purpose in the gated/restricted access employee parking, loading and unloading area of the subject "postal property."

[UPDATE: The decision below was filed July 7, and PACER, which I checked before posting the post, echoes this. Nonetheless, as two commenters pointed out, the decision is dated June 25, one day before Heller was handed down. If anyone could explain why there'd be a two-week delay between the signing of the written decision and the filing — something I generally haven't found to be the case in district court — I'd love to hear it.

It may be that my condemnation of the court was mistaken or at least overstated, given the June 25 date; on the other hand, Heller was big news the very next morning -- and anticipated to be coming down then -- so if the district court decision wasn't officially filed until July 7, I wonder why there wouldn't be an opportunity to correct it. In any case, I'd love to hear what people who are knowledgeable on such matters, especially in the Northern District of California, could tell me.]

From Bates v. San Jose, 2008 WL 2694025 (N.D. Cal. July 7):

Bates was formerly a sergeant with the San Jose Police Department. He was granted a disability retirement from the department in April 2004, due to the fact that the City could not accommodate the work restrictions placed upon him by his physician, at least in part to “avoid psychologically or physically stressful work.” Upon receipt of this information, defendant Amoroso, then deputy chief, denied Bates a concealed weapon permit under Cal.Penal Code § 12027.1(e) which prohibits the issuance of a permit to carry a concealed weapon to any officer who has retired “because of a psychological disability.” ...

Bates now sues the City, Davis and Amoroso for violation of his civil rights to freedom from deprivation of due process of law, freedom from summary punishment and freedom from the deprivation of the right to bear arms for failing to initially grant him a concealed weapons permit under § 12027.1. [Footnote:] The denial of a concealed weapons permit does not constitute a deprivation of the right to bear arms. Hickman v. Block, 81 F.3d 98, 101-02 (9th Cir.1996), cert. denied, 519 U.S. 912 (1996)....

But Hickman expressly rested on the view that "the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen" — a view D.C. v. Heller expressly rejected. As one might guess, while district courts are generally bound by circuit precedent, "where intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority" — including when the irreconcilability is in the "mode of analysis" and not just square conflict in the specific holdings — "a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 899, 900 (9th Cir. 2003). And it's not like Heller was a low-profile case that judges and clerks would routinely miss, or that the conflict between Heller and Hickman was somehow subtle. Now it may well be that under Heller, concealed weapons bans remain constitutional; there's language in Heller that suggests this. I should also note that all the briefing in this case came before Heller, so the parties technically didn't raise Heller; and more broadly, my skim of the plaintiff's opposition to the city's motion for summary judgment didn't really discuss the Second Amendment. If the court had made any of these points, that would have been fine. But simply relying on a precedent that Heller swept away strikes me as wrong, though of a piece with other recent decisions (see here and here).

From yesterday's unpublished U.S. v. Gilbert (some paragraph breaks added):

Keith Gilbert appeals his jury conviction on one count of conspiracy to manufacture unregistered firearms ..., one count of being a felon in possession of a firearm ..., seven counts of possession of a machinegun ..., and two counts of possession of an unregistered firearm ....

At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws. Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel's objections and instructed the jury to disregard Gilbert's answers.

The court also denied Gilbert's request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government's request, the following instruction:

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

... The district court's instructions were particularly appropriate to rebut inferences created by Gilbert's counsel's statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert's stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law.

The Supreme Court's recent decision in District of Columbia v. Heller, holding that the Second Amendment protects a limited individual right to possess a firearm -- unconnected with service in a militia -- does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms....

Gilbert also argues that the district court erred by preventing him from testifying as to his understanding and beliefs concerning the Second Amendment.... [T]he charges against Gilbert did not require, as an element of proof, evidence that Gilbert knowingly broke the law, only that he knowingly possessed weapons and knew the characteristics of those weapons. The only elements of proof which required inquiry into Gilbert's mental state were met: the government proved that Gilbert joined the conspiracy knowing its object and intending to accomplish it, and that he knowingly possessed machineguns and a rifle with a barrel less than 16 inches in length.

Thus we conclude that the district court acted well within its discretion to exclude Gilbert's testimony regarding his beliefs about the Second Amendment as inadmissible [as irrelevant]. For the same reason, we conclude that the district court's exclusion of Gilbert's testimony did not violate his right to present a witness in his own defense.

Whatever one might think about what D.C. v. Heller should have said about these issues (and I'm inclined to approve of its conclusions on them), it seems to me the Ninth Circuit read and applied Heller quite correctly.

U.S. v. Harden, No. 06-79-KI (D. Or.) (King, J.):

Defendant Daniel Devon Harden is charged in a single-count indictment under 18 U.S.C. § 922(g)(1) with possessing a firearm after being previously convicted of a felony. Harden moves to dismiss his indictment based on District of Columbia v. Heller, in which the Court held that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Harden argues he has a Second Amendment right to possess a firearm for self-defense, even though he is a felon.

The Court also cautioned, however:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Harden's argument goes well beyond the holding in Heller. I decline to extend the case to that extent.

If Harden's argument simply went beyond the holding in Heller, it seems to me that a judge probably ought to give reasons for "declin[ing] to extend the case" -- but here, the argument goes firmly against the dictum in Heller, and thus seems to be basically disposed of by the Supreme Court's opinion.

U.S. v. Robinson (E.D. Wis. July 23) (Adelman, J.):

[D]efendant fails to show that Heller renders his prosecution [for being a felon in possession of a firearm] constitutionally infirm....

First, defendant fails to demonstrate that Heller applies to felons. The Court specifically stated in that case:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose....

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Defendant claims that this is dicta, but I cannot so quickly dismiss this explicit limitation on the Court’s holding. Further, defendant cites no authority in support of his claim that the Second Amendment right extends to felons. To my knowledge, no court has, even under an individual rights interpretation of the Second Amendment, found 18 U.S.C. § 922(g) constitutionally suspect. E.g., United States v. Emerson, 270 F.3d 203, 262-63 (5th Cir. 2001) (finding that the Second Amendment protects individual rights, but nevertheless upholding § 922(g)(8)); [also citing some post-Heller district court and unpublished circuit court cases]. Finally, the Seventh Circuit regularly rejected such challenges pre-Heller, see, e.g., United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003) (noting that even advocates of an individual rights interpretation of the Second Amendment excluded felons), and nothing in Heller persuades me that the court of appeals is likely to change course now.

Second, defendant can find little support in Heller given the circumstances of his case. Heller’s actual holding is:

that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Defendant contends that he was accosted by police on the porch of his home and found to be in possession of a firearm, which he claims he possessed to protect himself and his family in the high crime area in which they lived. However, he glosses over the circumstances of his encounter with the police. [Details omitted. -EV] Even under its broadest possible reading, Heller does not sanction a felon carrying a gun in his pocket in public, then pulling that gun on a police officer [which is what the court concludes happened here -EV]. The Second Amendment interests in self-defense and protection of the home discussed in Heller cannot reasonably be extended to cover defendant’s conduct here.