The Volokh Conspiracy - Felons and the Second Amendment:

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.

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	[Eugene Volokh, July 21, 2008 at 6:46pm] Trackbacks Felons and the Second Amendment: 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. All Related Posts (on one page) \| Some Related Posts: Felons and the Right To Bear Arms: Interesting Tenth Circuit Concurring Opinion on the Right To Bear Arms and Felons: Pipe Bombs Unprotected by the Second Amendment:... Another Post-Heller Second Amendment Decision: Felons and the Second Amendment: Ninth Circuit's Sensible Response to a D.C. v. Heller Claim:... One More Early Post-Heller Second Amendment Opinion: Another Early Post-Heller Second Amendment Case: One of The First Post-Heller Second Amendment Opinions: