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A little bit of this and that

I'll be doing my next Case Update on January 7th, and What's Up in the 8th the day after, so that will get me back in my regular routine with those two. In the meantime, today we'll talk about a few decisions I've come across in the past few weeks which are of some consequence.

I've written before of the revolutionary nature of the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. City of Chicago, which held that the 2nd Amendment guaranteed an individual, rather than collective, right to bear arms. (McDonald applied that ruling to the states.) Basically, the decisions reversed an understanding of the 2nd Amendment that had been followed for over 200 years. The decisions addressed only laws which greatly restricted ownership of weapons within the home, and left up in the air the standard of review to be used in determining the constitutionality of other gun restrictions. Earlier this month, in Moore v. Madigan, the 7th Circuit Court of Appeals dropped a bombshell, holding that the 2nd Amendment prevented a state from prohibiting someone from carrying a concealed weapon.

Well, maybe not that much of a bombshell. The case highlighted yet another revolutionary development. In 1986, only New Hampshire allowed its citizens the unfettered right to carry a weapon; eight others required a gun permit to be issued if the person requesting underwent a training session and fulfilled other qualifications. Twenty-five states allowed the permit to be issued in those circumstances, but in sixteen (including Ohio), you couldn't get one at all.

By the turn of the century, 30 states had become "shall-issue" states. Ohio joined their ranks in 2005, and by the end of last year, 37 states were "shall issue," and Arizona, Wyoming, and Alaska had joined New Hampshire in allowing unrestricted carrying. Last man standing was Illinois, which did not allow carrying of concealed weapons.

That made the 7th Circuit's job easier, and it relied on a simple syllogism: Heller and McDonald had held that one had a right a weapon for self-defense inside the home; there was just as much danger to a person, if not more, outside the home than inside; therefore, one should have the right to carry a weapon outside the home. As the court noted, "a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower."

One of the issues left open by Heller/McDonald was the standard of review to be used in determining the constitutionality of a gun regulation. The fact that the two cases found the individual right to bear arms a fundamental one pretty much eliminates the "rational basis" test from play. The courts since Heller/McDonald have mostly deemed strict scrutiny too strict, and have settled on intermediate scrutiny: the government must show that the law furthers an important interest in a way that is substantially related to that interest. That's pretty much how Moore comes down, although in a roundabout way. The court stays its order for 180 days to allow the Illinois legislature to "craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public."

The difficulty with this issue is highlighted by another decision just a few weeks earlier in, Kachalsky v. Westchester, where the 2nd Circuit rejected a challenge to New York's concealed carry law. New York's a "may issue" state: the applicant has to establish "proper cause" -- a special need for self-protection, beyond that shared by the general public -- to be issued a permit. The court applied the same intermediate scrutiny test, but concluded that the "may issue" law was substantially related to the state's "compelling interest" in public safety.

The cases probably aren't important to criminal law practitioners. Just a few months earlier the 7th Circuit had upheld a law which prohibited someone convicted of a misdemeanor domestic violence from owning a weapon, and dicta in Heller seems to validate regulations restricting what types of weapons can be carried, prohibiting felons or the mentally ill from owning them, or limiting where they can be carried, such as courthouses or other government buildings. Again, the recent cases serve to remind us that the gun rights crowd has come a long way, baby: less than a decade ago, a constitutional challenge to Ohio's law prohibiting the carrying of concealed weapons was rebuffed.

* * * * * *

One case that might be of interest to criminal lawyers here in Ohio is the 2nd District's decision earlier this month in State v. Arnold. I've mentioned before that HB 86 raises an issue with regard to the reduced penalties for various statutes. For example, if you stole $600 on June 1, 2011, and were sentenced on September 29, you'd be subject to the penalties for a 5th degree felony. If you were sentenced a day later, only the misdemeanor penalty could be imposed, because HB 86 raised the felony threshhold for theft from $500 to $1,000. But were you also entitled to have the offense classified as a misdemeanor? The 8th rejected that argument in State v. Steinfurth, but Arnold has an interesting take on it.

Arnold didn't involve a theft prosecution; he was convicted of possessing between five and ten grams of crack, which was a third-degree felony at the time he committed it. HB 86 eliminated the distinction between crack and powder cocaine, and made possession of between five and ten grams of cocaine a fourth degree felony. The judge gave Arnold the maximum 18-month sentence for a 4th degree felony, but also identified the crime as a 4th degree offense in the journal entry, and the State appealed.

The 2nd District cited Steinfurth, but focused on the 5th District's decision in State v. Gillespie, in which the court upheld the reclassification of a theft offense to a misdemeanor, holding that the raised threshhold in HB 86 meant that "the penalty [for theft under $1,000] is a misdemeanor offense with a misdemeanor sentence, not a felony offense with a misdemeanor sentence." The court also found that treating classification entirely separate from punishment leads to other problems. For example, HB 86 also mandates probation for a 4th or 5th degree felony if the defendant has no prior felonies. (But there's another way of looking at this, as I discussed here.) Say a person pleads to the reduced-threshhold theft, and is given the misdemeanor sanction, but the offense is classified as a felony. If he commits another offense, the treatement of his prior one as a felony could eliminate him from the mandatory probation feature.

This isn't an argument that has a long shelf life -- there won't be too many cases coming along where the offense was committed prior to the effective date of HB 86. But if you do get one, keep Arnold and Gillespie in mind.

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