The Ninth Circuit en banc five-Judge plurality opinion upholding DNA collection from probationers has this material in n.28 on pp. 11459-60 (accompanying the text “[T]he Court has recognized that ‘those who have suffered a lawful conviction’ are properly subject to a ‘broad range of [restrictions] that might infringe constitutional rights in free society,’):
In Morrissey v. Brewer, the Supreme Court observed:
Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to the parole officer to whom they are assigned and sometimes they must make periodic written reports of their activities.
. . . Beyond these restrictions, parolees and probationers convicted of serious crimes are denied the right to vote by most states. . . . In addition, their Second Amendment rights are severely limited [citing the federal ban on felons possessing firearms].
Nothing much, I realize — I doubt that any future panel would feel remotely bound by the implication that individual people have Second Amendment rights, and that bans on firearms possession would severely limit such rights. (This is especially so since judges often join other judges’ opinions without fully endorsing every tangential comment in a footnote — there’s something of a collegial norm against joining judges’ being too picky or micromanaging, though technically a join is indeed supposed to represent full agreement.)
Still, it’s an interesting item, which might eventually help remind other judges that there is a substantial strain of judicial opinion that the Second Amendment secures a right of the people just as much as the First and Fourth Amendment do.
Comments are closed.