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So what to do with Heller?

As might be expected with the recognition of any new constitutional right, 2nd Amendment law in the next few years is going to be a very interesting field.  Here are some of the questions posed for criminal law attorneys by the Supreme Court's decision last Thursday in District of Columbia v. Heller:

Does it even apply to the states?  Right now, no; DC is obviously Federal territory, and the question of state laws pertaining to firearms wasn't raised.  In previous cases, all pre-1900, the Court has held that the 2nd Amendment applies only to the national government, but in footnote 23 in Heller, Scalia points out that the first decision also held that the 1st Amendment didn't apply to the states, and that it "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."  Given the state of incorporationist theory over the past century, I cannot foresee any possibility that the 2nd Amendment will not be applied to the states, based on Heller.  This will be decided by the Supreme Court; I don't see the circuits and the higher state appellate courts coming to a contrary conclusion.

How does it affect weapons under disability laws?  Scalia wrote that "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill."  While it's doubtful that any gun rights groups are going to pursue that issue, defense attorneys will certainly raise it, and there's some room for maneuver.  Ohio law prohibits anyone who has committed certain felonies from ever possessing a gun.  Federal law is even more unforgiving:  anyone who's ever committed a felony (and, in some cases like domestic violence, a misdemeanor) is subject to a 10-year prison sentence for having one.

One doesn't forfeit other constitutional rights for having a felony conviction; as Doug Berman put it in a post on SL&P:

Would anyone find constitutional a federal law that made it a felony offense — and one subject to a 10-year federal prison sentence — for any and all previously convicted felons to hire a lawyer?

Now, it'd certainly be a stretch to argue that somebody who's had three agg robb convictions can't be barred from having a gun, but it's equally a stretch to argue that a 46-year-old man who had a conviction for misdemeanor pot possession as a juvenile can be, as he is under RC 2923.13.  Depending on the nature of the crime creating the disability, the lapse of time since conviction, and the purpose of possession (kept in a home in a high-crime neighborhood), there's an argument to be made here.

What about gun specifications?  Federal law imposes additional penalties for the use of a gun in a crime (usually five years), while Ohio law adds time for possessing (one year) or brandishing (three years) a gun during a crime.  The one-year Ohio gun spec could be subject to attack; unlike the Federal law, that spec does not require that the gun actually be used, and "possession" can be constructive.  There are cases where a defendant is charged with a one-year spec because drugs were found on the kitchen table and a gun was found in the upstairs bedroom.  Given the supposed link between guns and drugs, this is going to be a hard sell, but in the right case it might be worth a shot.

What test is used to determine whether the right has been infringed?  This one is completely up in the air; the only reference to it in Heller is this line:

Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to 'keep' and use for protection of one’s home and family" would fail constitutional muster.

What particular standard the courts employ is the key.  The highest level of scrutiny is "strict in form, fatal in fact"; only seven times has the Supreme Court upheld a law subjected to the strict scrutiny test.  You may have to dust off the law books here, and I'll keep my eye out for the briefs and decisions that are sure to follow on this subject, but for right now, you've got to be arguing strict scrutiny as though this were a 1st Amendment case.

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