The Volokh Conspiracy - The Second Amendment and Sentence Enhancements for Firearms Use or Carrying in Connection With Crimes:

Another early post-Heller case, Chaleunsak v. United States, 2008 U.S. Dist. LEXIS 50852 (M.D. Tenn. July 1), quickly disposes of a challenge to 18 U.S.C. § 924(c)(1), which provides a multi-year enhancement when someone "during and in relation to any [federal] crime of violence or [federal] drug trafficking crime" "uses or carries a firearm":

Next, Chaleunsak contends that the § 924(c) charge was unconstitutional because he had a Second Amendment right to keep and bear arms. This claim is barred by the appellate waiver contained in the plea agreement. Even if the claim is not barred, the Sixth Circuit rejected the same contention in United States v. Helton, 86 Fed.Appx. 889, 892 (6th Cir. 2004) (holding § 924(c) constitutes reasonable limitation on defendant's Second Amendment rights). Consequently, this claim will also be denied as without merit.

Helton, though, is not binding precedent even within the Sixth Circuit (that's why it's in Fed. Appx. and not F.3d). It's also pre-Heller, though at least it doesn't rely on the states'-rights/militia-rights theory that Heller rejected; here's the relevant excerpt from Helton:

Finally, Helton urges us to adopt the reasoning of the Fifth Circuit's opinion in Emerson, and to hold that § 924(c) unduly infringes on Second Amendment rights. Emerson, of course, is not binding on this court, and, in any event, we note that it contemplates that Second Amendment rights may be subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Emerson, 270 F.3d at 261. Because we agree with the district court that § 924(c) constitutes just such a reasonable limitation, Helton's Second Amendment claim must fail.

So it seems to me the district court should have done its own analysis, even a cursory one, rather than just relying on the nonprecedential and cursorily reasoned pre-Heller decision in Helton.

As it happens, though, there is a good deal of caselaw on the subject of how an individual right to bear arms should affect sentence enhancements for using or carrying a firearm in connection with a crime: It's chiefly from the Washington Supreme Court, which for the last two decades has handed down a bunch of decisions under its state constitutional right to bear arms provision. I don't endorse them all, but at least they are a substantial body of law with a decent amount of analysis. Here's the most recent one on sentence enhancements, State v. Neff, 181 P.3d 819 (Wash. 2008):

A court may add time to a sentence if a defendant was armed with a firearm while committing a crime. RCW 9.94A.533(3). A person is armed while committing a crime if he can easily access and readily use a weapon and if a nexus connects him, the weapon, and the crime. State v. Schelin, 55 P.3d 632 (2002); State v. Valdobinos, 858 P.2d 199 (1993).

This nexus requirement is critical because "[t]he right of the individual citizen to bear arms in defense of himself, or the State, shall not be impaired ...." Wash. Const. art. I, § 24. The State may not punish a citizen merely for exercising this right. The State may punish him for using a weapon in a commission of a crime, though, because a weapon can turn a nonviolent crime into a violent one, increasing the likelihood of death or injury.

When a crime is a continuing crime — like a drug manufacturing operation — a nexus obtains if the weapon was "there to be used," which requires more than just the weapon's presence at the crime scene. This potential use may be offensive or defensive and may be to facilitate the crime's commission, to escape the scene, or to protect contraband. In every case, whether a defendant is armed is a fact specific decision.

Since the issue is fact specific, the facts and holdings of our prior cases are helpful. In State v. O'Neal (2007), officers searched the defendants' methamphetamine laboratory. Besides evidence of drug manufacturing, the officers found over 20 guns, body armor, night vision goggles, and a police scanner. A jury found the defendants guilty of manufacturing drugs and added a firearm enhancement. We affirmed the firearm enhancement. Since the weapons were easily accessible to protect the drugs, and since the defendants kept a police scanner in the laboratory, the jury could find that the defendants used the guns to protect the drugs, and so we upheld their conviction.

In State v. Eckenrode (2007), the defendant called the police, alerting them to an intruder in his house. He told the dispatcher he was armed and ready to shoot the intruder. When the police arrived, he was outside his home, sitting on his porch. Police investigated and found he was growing marijuana and had two firearms in his house. A jury convicted him of drug charges and gave a firearm enhancement. We affirmed his conviction and enhancement. The defendant told the dispatcher he was armed. Police found two weapons, one loaded, and a police scanner in the house. Under those facts, a jury was allowed to infer that the defendant armed himself to protect his criminal enterprise and so was allowed to find him armed while committing the crimes.

In Valdobinos, by contrast, police arrested the defendant when he offered to sell cocaine to an undercover officer. They searched his house, finding cocaine and an unloaded rifle under his bed. A jury convicted him of drug charges and a firearm enhancement. We reversed the enhancement, holding the jury could not infer from an unloaded rifle near the cocaine that the defendant was armed. Notably, however, no evidence indicated the gun was in the house to protect the drugs, as indicated by the presence of loaded weapons and police scanners in O'Neal and Eckenrode.

Here, the trial judge found that "[i]n the defendant's garage the Sheriff's department recovered ... a loaded Smith and Wesson .357 handgun, a Colt .45, [and] a Davis model P.380 firearm." He found Neff "was armed because the guns ... where [sic] readily available for offensive or defensive purposes." On these findings, he held "[t]hat defendant was armed with a firearm while he was manufacturing methamphetamine." Based on the record, a rational fact finder could agree. When they searched Neff's garage, police found two loaded pistols in a safe, which also contained four bags of marijuana. Neff held the keys to the garage. The police found a third pistol hanging from a tool belt in the garage's rafters. While it is unclear from the record whether Neff could easily reach the gun, we construe the fact in the State's favor. Finally, the officers found two security cameras and a monitor in the garage on which to view live feeds. An officer testified that the monitors were for countersurveillance.

It seems to me that the Washington Supreme Court's rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement. But in any case, the deeper point is that some of these novel Second Amendment questions aren't novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense.

	[Eugene Volokh, July 10, 2008 at 8:55am] Trackbacks The Second Amendment and Sentence Enhancements for Firearms Use or Carrying in Connection With Crimes: Another early post-Heller case, Chaleunsak v. United States, 2008 U.S. Dist. LEXIS 50852 (M.D. Tenn. July 1), quickly disposes of a challenge to 18 U.S.C. § 924(c)(1), which provides a multi-year enhancement when someone "during and in relation to any [federal] crime of violence or [federal] drug trafficking crime" "uses or carries a firearm": Next, Chaleunsak contends that the § 924(c) charge was unconstitutional because he had a Second Amendment right to keep and bear arms. This claim is barred by the appellate waiver contained in the plea agreement. Even if the claim is not barred, the Sixth Circuit rejected the same contention in United States v. Helton, 86 Fed.Appx. 889, 892 (6th Cir. 2004) (holding § 924(c) constitutes reasonable limitation on defendant's Second Amendment rights). Consequently, this claim will also be denied as without merit. Helton, though, is not binding precedent even within the Sixth Circuit (that's why it's in Fed. Appx. and not F.3d). It's also pre-Heller, though at least it doesn't rely on the states'-rights/militia-rights theory that Heller rejected; here's the relevant excerpt from Helton: Finally, Helton urges us to adopt the reasoning of the Fifth Circuit's opinion in Emerson, and to hold that § 924(c) unduly infringes on Second Amendment rights. Emerson, of course, is not binding on this court, and, in any event, we note that it contemplates that Second Amendment rights may be subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Emerson, 270 F.3d at 261. Because we agree with the district court that § 924(c) constitutes just such a reasonable limitation, Helton's Second Amendment claim must fail. So it seems to me the district court should have done its own analysis, even a cursory one, rather than just relying on the nonprecedential and cursorily reasoned pre-Heller decision in Helton. As it happens, though, there is a good deal of caselaw on the subject of how an individual right to bear arms should affect sentence enhancements for using or carrying a firearm in connection with a crime: It's chiefly from the Washington Supreme Court, which for the last two decades has handed down a bunch of decisions under its state constitutional right to bear arms provision. I don't endorse them all, but at least they are a substantial body of law with a decent amount of analysis. Here's the most recent one on sentence enhancements, State v. Neff, 181 P.3d 819 (Wash. 2008): A court may add time to a sentence if a defendant was armed with a firearm while committing a crime. RCW 9.94A.533(3). A person is armed while committing a crime if he can easily access and readily use a weapon and if a nexus connects him, the weapon, and the crime. State v. Schelin, 55 P.3d 632 (2002); State v. Valdobinos, 858 P.2d 199 (1993). This nexus requirement is critical because "[t]he right of the individual citizen to bear arms in defense of himself, or the State, shall not be impaired ...." Wash. Const. art. I, § 24. The State may not punish a citizen merely for exercising this right. The State may punish him for using a weapon in a commission of a crime, though, because a weapon can turn a nonviolent crime into a violent one, increasing the likelihood of death or injury. When a crime is a continuing crime — like a drug manufacturing operation — a nexus obtains if the weapon was "there to be used," which requires more than just the weapon's presence at the crime scene. This potential use may be offensive or defensive and may be to facilitate the crime's commission, to escape the scene, or to protect contraband. In every case, whether a defendant is armed is a fact specific decision. Since the issue is fact specific, the facts and holdings of our prior cases are helpful. In State v. O'Neal (2007), officers searched the defendants' methamphetamine laboratory. Besides evidence of drug manufacturing, the officers found over 20 guns, body armor, night vision goggles, and a police scanner. A jury found the defendants guilty of manufacturing drugs and added a firearm enhancement. We affirmed the firearm enhancement. Since the weapons were easily accessible to protect the drugs, and since the defendants kept a police scanner in the laboratory, the jury could find that the defendants used the guns to protect the drugs, and so we upheld their conviction. In State v. Eckenrode (2007), the defendant called the police, alerting them to an intruder in his house. He told the dispatcher he was armed and ready to shoot the intruder. When the police arrived, he was outside his home, sitting on his porch. Police investigated and found he was growing marijuana and had two firearms in his house. A jury convicted him of drug charges and gave a firearm enhancement. We affirmed his conviction and enhancement. The defendant told the dispatcher he was armed. Police found two weapons, one loaded, and a police scanner in the house. Under those facts, a jury was allowed to infer that the defendant armed himself to protect his criminal enterprise and so was allowed to find him armed while committing the crimes. In Valdobinos, by contrast, police arrested the defendant when he offered to sell cocaine to an undercover officer. They searched his house, finding cocaine and an unloaded rifle under his bed. A jury convicted him of drug charges and a firearm enhancement. We reversed the enhancement, holding the jury could not infer from an unloaded rifle near the cocaine that the defendant was armed. Notably, however, no evidence indicated the gun was in the house to protect the drugs, as indicated by the presence of loaded weapons and police scanners in O'Neal and Eckenrode. Here, the trial judge found that "[i]n the defendant's garage the Sheriff's department recovered ... a loaded Smith and Wesson .357 handgun, a Colt .45, [and] a Davis model P.380 firearm." He found Neff "was armed because the guns ... where [sic] readily available for offensive or defensive purposes." On these findings, he held "[t]hat defendant was armed with a firearm while he was manufacturing methamphetamine." Based on the record, a rational fact finder could agree. When they searched Neff's garage, police found two loaded pistols in a safe, which also contained four bags of marijuana. Neff held the keys to the garage. The police found a third pistol hanging from a tool belt in the garage's rafters. While it is unclear from the record whether Neff could easily reach the gun, we construe the fact in the State's favor. Finally, the officers found two security cameras and a monitor in the garage on which to view live feeds. An officer testified that the monitors were for countersurveillance. It seems to me that the Washington Supreme Court's rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement. But in any case, the deeper point is that some of these novel Second Amendment questions aren't novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense.