Posted by Eugene Volokh:
Second Amendment as Relevant to Defendant's Right To Sue for Declaration of His
Federal Firearms Rights?
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228944875
An interesting decision ([1]Jennings v. Mukasey) that was just
uploaded to Lexis, though it was handed down two and a half months
ago:
Plaintiff, Bruce L. Jennings, has brought suit seeking, inter alia,
a judgment from this Court declaring the status of his rights under
18 U.S.C. § 922(g)(9), which prohibits the possession of firearms
by those convicted of a misdemeanor crime of domestic violence.
Specifically, Plaintiff asks this Court to determine whether a 1985
State court conviction for misdemeanor domestic violence prohibits
Plaintiff from lawfully possessing a firearm under federal law,
notwithstanding the fact that the conviction has been expunged or
otherwise set aside by the State court. Because his conviction has
been expunged, Plaintiff alleges that 18 U.S.C. §
921(a)(33)(B)(ii) excepts him from § 922(g)(9)�s prohibition
against firearm possession.
Plaintiff has further alleged that Defendants have threatened him
with criminal prosecution if he should decide to possess a firearm;
that this threat of prosecution infringes upon the exercise of his
Second Amendment rights; and that Defendants� threatened
prosecution has precluded him from obtaining employment in the
firearms industry, in which he has had approximately thirty (30)
years of experience in evaluating various designs of handguns for
licensed firearm dealers....
Defendants argue that by seeking a declaration that the State court
judgment setting aside and expunging Plaintiff�s conviction for
misdemeanor domestic violence effects § 921(a)(33)(B)(ii)�s
exception to § 922(g)(9), Plaintiff has asked this Court to
�restrain the prosecutorial authority of the United States.� As a
result, Defendants contend that this Court is without subject
matter jurisdiction to hear Plaintiff�s case.
While the Supreme Court has observed that the executive branch has
�exclusive authority and absolute discretion to decide whether to
prosecute a case,� and the Fifth Circuit has noted that �courts are
not to interfere with the free exercise of the discretionary powers
of the attorneys of the United States in their control over
criminal prosecutions,� this discretion can give way where
important constitutional rights are at stake....
Assuming, as the Court must at this stage in the proceedings, that
Plaintiff�s conviction was duly expunged, it seems that he would
clearly fall within the statutory exception in § 921(a)(33)(B)(ii)
and would not be subject to prosecution under § 922(g)(9).
Furthermore, in light of District of Columbia v. Heller, Plaintiff
raises a viable claim that the violation of his Second Amendment
right to bear arms also deprives him of the right to earn a
livelihood. Taken together, the Court concludes that Plaintiff�s
allegations fall within the very limited exception to the general
principle of immunity, that Plaintiff is otherwise without an
adequate remedy at law, and that Plaintiff would suffer irreparable
harm if not permitted to proceed in the instant action....
Where the plaintiff�s suit does not seek to impose upon the fisc,
but only to declare the status of fundamental constitutional
rights, the requirement of a statutory waiver [of sovereign
immunity] should give way....
For more on the dispute about whether Jennings' conviction has indeed
been properly expunged, see the discussion [2]here, though the Ninth
Circuit in that opinion didn't conclusively deal with Jennings' claim
based on the December 2005 state court order.
References
1. http://volokh.com/files/jennings.pdf
2. http://caselaw.findlaw.com/data2/circs/9th/0516869P.pdf
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