Posted by Eugene Volokh:
Interesting Tenth Circuit Concurring Opinion on the Right To Bear Arms and
Felons:
http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1248901791
The case is [1]U.S. v. McCane, decided yesterday. The majority
rejected the defendant's Second Amendment claim by simply saying that
the Court "explicitly stated in Heller that 'nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons,'" and citing a recent Fifth Circuit
opinion echoing this. But Judge Tymkovich wrote a concurring opinion,
which said:
I join in Judge Murphy's cogent opinion, but write separately
regarding certain issues raised by our Second Amendment holding
..., for two reasons....
My first point is that the felon dispossession dictum may lack the
"longstanding" historical basis that Heller ascribes to it. Indeed,
the scope of what Heller describes as "longstanding prohibitions on
the possession of firearms by felons," is far from clear. To be
sure, some sources would support the proposition. But more recent
authorities have not found evidence of longstanding dispossession
laws. On the contrary, a number have specifically argued such laws
did not exist and have questioned the sources relied upon by the
earlier authorities. Instead, they assert, the weight of historical
evidence suggests felon dispossession laws are creatures of the
twentieth -- rather than the eighteenth -- century. Together these
authorities cast doubt on a categorical approach to felon
dispossession laws.
This uncertain historical evidence is problematic in light of
Heller's Second Amendment interpretation. Central to the Court's
holding are a detailed textual analysis and a comprehensive review
of the Second Amendment's meaning at the time of its adoption.
After conducting this analysis and review, Heller concludes the
right "to keep and bear arms" is a corollary to the individual
right of self-defense. At the "core" of the Second Amendment right,
the Court found, is self-defense in the home.
Knowing the meaning of the Second Amendment right and having
identified its individual nature, the issue becomes what limits the
government may place on the right.... For example, the broad scope
of 18 U.S.C. § 922(g)(1) -- which permanently disqualifies all
felons from possessing firearms -- would conflict with the "core"
self-defense right embodied in the Second Amendment. Non-violent
felons, for example, certainly have the same right to self-defense
in their homes as non-felons. The validity of § 922(g)(1) was not
at issue in Heller, so presumably the lower courts would be left to
sort out this restriction -- as well as other restrictions -- and
to wrestle with any complexities in applying Heller. But the issue
was not really left to the lower courts.... Heller's felon
dispossession dictum is particularly noteworthy considering the
scope of the § 922(g)(1) ban. The statute prohibits firearm
possession by any person convicted of a felony, irrespective of the
nature of the felony, the length of time elapsed since the felony
conviction, and the treatment of the felony by the state in which
the felon resides. Every individual right has exceptions, of
course, and the application of § 922(g) to a violent felon such as
Mr. McCane would appear appropriate under any Second Amendment
reading. After all, felons lose out on fundamental rights such as
voting and serving on juries, and face discrimination that need
only survive rational basis review. 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.
This brings me to my second point. The Court's summary treatment of
felon dispossession in dictum forecloses the possibility of a more
sophisticated interpretation of § 922(g)(1)'s scope. Applying
Heller's individual right holding to various regulations would be
complicated, and it is of course possible (if not probable) that
different courts would articulate different standards. Already a
number of commentators have considered and proposed approaches to
the existing gun laws and the proper level of constitutional
scrutiny. But the existence of on-point dicta regarding various
regulations short-circuits at least some of the analysis and
refinement that would otherwise take place in the lower courts. In
this case, for example, we need not address the standard of review
applicable to gun dispossession laws -- strict scrutiny,
intermediate, rational basis, or something else -- or the
examination of the governmental interests in light of the standard
of review.
Rather than seriously wrestling with how to apply this new Second
Amendment rule, therefore, courts will continue to simply reference
the applicable Heller dictum and move on. And in light of the
Supreme Court's clear direction, this is perhaps how it should be.
After all, "our job as a federal appellate court is to follow the
Supreme Court's directions, not pick and choose among them as if
ordering from a menu." I nevertheless wonder whether Second
Amendment law would have been better served if the regulations
Heller addressed in dicta had been left to later cases.
Note also that Judge Tymkovich's view is especially important in light
of [2]U.S. v. Engstrum, where a federal district court in Utah held
that a defendant who is prosecuted for possessing a gun after having
been convicted of a domestic violence misdemeanor has a Second
Amendment right to present an affirmative defense "that he posed no
prospective risk of violence." (I take it this must mean no
prospective risk of violence beyond that posed by the average person.)
The jury, under the trial court's approach, would thus be instructed
that, if it agrees with the defendant that he posed no prospective
risk of violence, it should acquit despite the flat prohibition
imposed by the statute.
The government has filed a mandamus petition, asking the Tenth Circuit
to review this decision; Judge Tymkovich might be called upon to
consider this petition, either if it comes to him as a panel member,
or if a panel decision in the case leads to a call for en banc review.
Thanks to [3]How Appealing for the pointer.
References
1. http://www.ca10.uscourts.gov/opinions/08/08-6235.pdf
2. http://www.volokh.com/posts/1245366067.shtml
3. http://howappealing.law.com/
_______________________________________________
Volokh mailing list
Volokh@lists.powerblogs.com
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
