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Heller update

You'll remember that after the Supreme Court's decision in District of Columbia v. Heller, affirming an individual 2nd Amendment right to bear arms, I made all sorts of predictions about how this was going to have a major impact on gun regulations.  As recapitulated here, none of them turned out to be remotely accurate; the courts' disinterest in the subject culminated this term in US v. Hayes, a case potentially rife with 2nd Amendment issues, yet which produced a Supreme Court oral argument and opinion in which neither the Amendment nor Heller was even mentioned. 

Well, the times they may be a'changin'.

The focus has been on felon-in-possession laws (and, for that matter, given Hayes, what one could call misdemeanant-in-possession laws):  laws prohibiting persons from possessing weapons if they were convicted of a crime .  (The Federal statute is 18 USC §922(g); Ohio has the weapons under disability statute, R.C. 2923.13.)  The Heller Court found that the 2nd Amendment created an "inherent right of self-defense" which "belongs to all Americans," yet in dicta the majority asserts, with no justification or reasoning, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." 

Why not?  To be sure, there's a logical argument for keeping guns out of the hands of certain felons, but that logic becomes attenuated when applied to persons convicted of any felony, at any time.  Under Federal law, you can't have a gun if you've just been released from prison for bank robbery, but you also can't have a gun if you were convicted twenty years ago of tax evasion.  When Bernie Madoff gets out of prison in 150 years, shouldn't he have a right of self-defense?  No one argues that felons can be deprived of their 1st Amendment rights, or that if arrested again they could be tried without a jury or a lawyer; why should their 2nd Amendment rights be treated differently?

More problematically, as this forthcoming article for the UCLA Law Review notes, Scalia's finding of "longstanding prohibitions on the possession of firearms by felons" doesn't withstand historical scrutiny, an odd result in an opinion heavy on originalism and the historical context of the right to bear arms.  The article notes that subsequent research indicates that "felon-in-possession" laws, to the extent that they existed at the time of the Framers,

did not authorize much more than laws forbidding those convicted of crimes of violence to carry firearms outside their homes, and possibly also forbidding them to possess easily concealable weapons, at least for as long as the offender continued to present a credible threat of recidivism. 

Indeed, 922(g), the present -- and first Federal -- felon-in-possession law, dates back only to 1968.

Still, Scalia's dicta has served as a sufficient basis for every court presented with the issue to summarily dismiss the argument that Federal and state laws banning certain persons from possessing guns have to be re-evaluated in light of Heller's determination that the 2nd Amendment guarantees an individual constitutional right to own a gun.  A crack in that wall might have appeared, though, in the 10th Circuit's recent decision in US v. McCaneAlthough the majority opinion peremptorily dismisses McCane's argument as to the constitutionality of 922(g), the concurring opinion notes the inadequate historical record supporting Heller's dicta, and points out that while banning "a violent felon such as Mr. McCane" from having a gun "would appear appropriate under any Second Amendment reading,"

The question may be less clear, however, where the underlying felony is non-violent, such as financial fraud, perjury, or misleading federal investigators. But § 922(g)(1) encompasses these (and other) non-violent felons as well, permanently restricting their Second Amendment right to self-defense.

The concurrence notes the other problem with the dicta:  it short-circuits any discussion of what the extent of the 2nd Amendment right, and the proper level of constitutional scrutiny, should be.  Courts simply cite Heller's dicta, and that's the end of it.

The chances of this changing at the Supreme Court level anytime soon are remote.  As I've mentioned before, there was a possibility of another Supreme Court case on the 2nd Amendment, this time delving into the issue of whether the Amendment applied to the states:  since Heller, the 9th Circuit has ruled that it does, and the 2nd and 7th have ruled to the contrary.  Even that would have dealt only with the incorporation issue, though, and what's more, the 9th Circuit has been petitioned to rehear its decision en banc; if the original decision is reversed, the primary grounds for the Supreme Court getting involved -- to resolve a split in the circuits -- disappears.  What's more, one gets the feeling that Scalia's affirmance of felon-in-possession laws was politically, rather than judicially, motivated:  getting four other justices on board with his opinion might have been more difficult if it appeared the opinion would call those laws into question.

Still, the tension caused by Heller's basic holding and the opinion's dicta about felon-in-possession laws isn't going away.  In US v. Engstrum, a Federal district judge has approved a jury instruction which granted the defendant in a 922(g) prosecution the right to argue, as an affirmative defense, that he posed no prospective risk of violence; if the jury buys it, he can be acquitted, despite the flat prohibition of the statute.

The government has filed for immediate appeal of that ruling -- to the very same 10th Circuit that ruled in McCane.  Maybe the concurring judge in that case will be on the panel in this one.  In the meantime, if you've got a client who's charged with weapons under disability for something like, say, a 15-year-old 5th degree felony drug possession conviction, you might want to take a look at the jury instruction in Engstrum more closely.


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