---------------------------- Original Message ---------------------------- Subject: [Volokh] Eugene Volokh: Another District Court Upholds Ban on Firearms Possession by Unlawful Users of Controlled Substances: From: [EMAIL PROTECTED] Date: Mon, November 24, 2008 7:01 am To: [EMAIL PROTECTED] --------------------------------------------------------------------------
Posted by Eugene Volokh: Another District Court Upholds Ban on Firearms Possession by Unlawful Users of Controlled Substances: http://volokh.com/archives/archive_2008_11_23-2008_11_29.shtml#1227365736 The case is U.S. v. Chafin, 2008 WL 4951028 (S.D. W. Va. Nov. 18), and came about when Juan Chic and Cory Chafin tried to buy a gun while smelling of marijuana. The gun dealer refused to sell then gun and called law enforcement; law enforcement eventually learned that Chafin already had a gun, and Chafin was prosecuted for various crimes, including possessing a gun while "an unlawful user of or addicted to any controlled substance" (18 U.S.C. ยง 922(g)(3)). Here's how the court rejected Chafin's Second Amendment argument: Following Heller, it is ... apparent ... that the individual right [to keep and bear arms] is "not unlimited, just as the First Amendment's right of free speech ... [is] not" unlimited. ("[W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.")Specifically, the Heller decision observes as follows: From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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. The Supreme Court stressed that these ... significant carve outs were "presumptively lawful regulatory measures" that were "examples[,]" rather than an "exhaustive" listing, of legitimate prohibitions. The foregoing discussion suggests at least two reasons why defendant's reading of Heller is too broad. First, the Supreme Court addressed only the constitutionality of a sweeping District of Columbia firearm regulation -- one that included a total ban on handguns -- that was far more restrictive than the statutes [involved here]. Second, Heller sanctioned some well-rooted, public-safety-based exceptions to the Second Amendment right that appear consistent with Congress' determination that those unlawfully using or addicted to controlled substances should not have firearms at the ready. An in-depth analysis is likewise unwarranted concerning defendant's contention that any post-Heller firearm restriction must satisfy strict constitutional scrutiny. The law appears otherwise. See Heller (Breyer, J., dissenting) ("Respondent proposes that the Court adopt a 'strict scrutiny' test, which would require reviewing with care each gun law to determine whether it is 'narrowly tailored to achieve a compelling governmental interest.' But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws -- prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales -- whose constitutionality under a strict scrutiny standard would be far from clear."). _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
