Posted by Eugene Volokh:
Second Amendment footnote:
The [1]Ninth Circuit en banc five-Judge plurality opinion upholding
DNA collection from probationers has this material in n.28 on pp.
11459-60 (accompanying the text "[T]he Court has recognized that
'those who have suffered a lawful conviction' are properly subject to
a 'broad range of [restrictions] that might infringe constitutional
rights in free society,'):
28In Morrissey v. Brewer, the Supreme Court observed:
Typically, parolees are forbidden to use liquor or to have
associations or correspondence with certain categories of
undesirable persons. Typically, also they must seek permission from
their parole officers before engaging in specified activities, such
as changing employment or living quarters, marrying, acquiring or
operating a motor vehicle, traveling outside the community, and
incurring substantial indebtedness. Additionally, parolees must
regularly report to the parole officer to whom they are assigned
and sometimes they must make periodic written reports of their
activities.
. . . Beyond these restrictions, parolees and probationers
convicted of serious crimes are denied the right to vote by most
states. . . . In addition, their Second Amendment rights are
severely limited [citing the federal ban on felons possessing
firearms].
Nothing much, I realize -- I doubt that any future panel would feel
remotely bound by the implication that individual people have Second
Amendment rights, and that bans on firearms possession would severely
limit such rights. (This is especially so since judges often join
other judges' opinions without fully endorsing every tangential
comment in a footnote -- there's something of a collegial norm against
joining judges' being too picky or micromanaging, though technically a
join is indeed supposed to represent full agreement.)
Still, it's an interesting item, which might eventually help remind
other judges that there is a substantial strain of judicial opinion
that the Second Amendment secures a right of the people just as much
as the First and Fourth Amendment do.
References
1.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BADFFFC872DBA30288256EF300802EBD/$file/0250380.pdf?openelement
_______________________________________________
Volokh mailing list
[EMAIL PROTECTED]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
