Posted by Eugene Volokh:
Another Example of District Courts' Weak Response to *D.C. v. Heller*:
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218499278
From [1]U.S. v. White (S.D. Ala. Aug. 6) (Steele, J.):
On June 4, 2008, following a jury trial, defendant Ludivic White,
Jr., was convicted of the offense of possession of a firearm after
having been convicted of a misdemeanor crime of domestic violence,
in violation of 18 U.S.C. § 922(g)(9) ....
Defendant now maintains that the ... Indictment should be dismissed
in light of the Supreme Court�s recent decision in District of
Columbia v. Heller, wherein the Court determined that �the Second
Amendment conferred an individual right to keep and bear arms,�
albeit not an unlimited right. In identifying broadly the scope of
those limitations, the Supreme Court emphasized that �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.� Furthermore, a footnote accompanying that passage reads as
follows: �We identify these presumptively lawful regulatory
measures only as examples; our list does not purport to be
exhaustive.�
Title 18, United States Code, Section 922(g) is unquestionably a
longstanding prohibition on the possession of firearms by certain
classifications of people. Indeed, the Heller Court�s illustrative
list of prohibitions on the constitutionality of which it was
explicitly not casting doubt included § 922(g)(1) (possession of a
firearm by a felon) and § 922(g)(4) (possession of a firearm by
one who has been adjudicated as mentally defective or who has been
committed to a mental institution). On its face, then, Heller did
not disturb or implicate the constitutionality of § 922(g), and
was not intended to open the door to a raft of Second Amendment
challenges to § 922(g) convictions.
White�s Motion to Dismiss would place far more weight on the Heller
decision than its plain text can reasonably bear. Indeed, every
federal court to examine Heller in the face of objections similar
to White�s has similarly concluded that it did not invalidate §
922(g). See, e.g., United States v. Gilbert, 2008 WL 2740453, *2
(9th Cir. July 15, 2008) (�Under Heller, individuals still do not
have the right to possess machineguns or short-barreled rifles, as
Gilbert did, and convicted felons, such as Gilbert, do not have the
right to possess any firearms.�); United States v. Robinson, 2008
WL 2937742, *2 (E.D. Wis. July 23, 2008) (rejecting Heller
challenge to constitutionality of § 922(g)(1), and noting that �no
court has, even under an individual rights interpretation of the
Second Amendment, found 18 U.S.C. § 922(g) constitutionally
suspect�); United States v. Walters, 2008 WL 2740398, *1 (D.V.I.
July 15, 2008) (denying motion to dismiss § 922(g) count on Heller
grounds).
In the absence of any indication by the Eleventh Circuit or the
Supreme Court that the principles enunciated in Heller call into
question the constitutionality of § 922(g), much less any guidance
concerning the proper legal standards to apply to any scrutiny of
that statute under the Second Amendment, the Court will take Heller
at its word, as did the courts in Gilbert, Robinson, and Walters,
that it did not cast doubt on the validity of prohibitions such as
those found at § 922(g)....
What's missing here, though, is any real analysis of whether §
922(g)(9), which applies not to felons or the mentally infirm but to
certain convicted violent misdemeanants, is constitutionally
permissible. Perhaps it is, but simply citing language from Heller or
other cases that deals with other sections doesn't, it seems to me,
dispose of the matter. This is especially so given the traditional
distinctions (whether always wise or not) in legal consequences
between felonies and misdemeanors, and the fact that Heller so
expressly relied on the tradition behind the restrictions that it
expressly validated -- a tradition that (again, rightly or wrongly)
doesn't obviously apply to violent misdemeanors.
Now it may well be that violent misdemeanants properly could be denied
the right to own a gun, even after their sentence has expired; there
may be theories that would justify that. But this court's simple
reliance on precedents that deal with other statutes (which are in
some ways similar and in some ways different) strikes me as unsound.
References
1. http://volokh.com/files/white.pdf
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