Posted by Eugene Volokh:
Another Case Holding a Gun Control Provision of the Adam Walsh Act
Unconstitutional:
http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233872381
I blogged about this issue [1]three weeks ago. Under [2]18 U.S.C. §
3142(c)(1)(B), someone who is charged with possessing child
pornography -- among other crimes -- and is freed on bail must be
ordered not to possess any firearm. In late December, [3]U.S. v.
Arzberger (S.D.N.Y.) concluded that this violated the Due Process
Clause, largely because the right to bear arms is protected under the
Second Amendment.
A few weeks later I found another opinion, [4]U.S. v. Kennedy (W.D.
Wash.) (Donohue, M.J.), which holds the same thing (it was decided
earlier than Arzberger, but placed online later). Here's the
magistrate judge's reasoning, which the [5]district judge (Richard A.
Jones) approved without further analysis (paragraph break added):
Pretrial Services recommends that Defendant be prohibited from
possessing a firearm, which is a mandatory condition under the
Walsh Act. In District of Columbia v. Heller, the Supreme Court
held that the Second Amendment created an individual right to
possess firearms. In footnote 27, Justice Scalia noted that a law
regulating a specific, enumerated right such as the right to keep
and bear arms was subject to more than a rational basis level of
scrutiny.
If the government's position in this case is sustained, this
constitutional right would be taken away not because of a
conviction, but merely because a person was charged. This right
would be lost notwithstanding a lack of showing that Defendant is a
potentially violent individual, or that he even owns firearms.
Certainly no particularized need has been established in this case
that the Defendant should prohibited from possessing a firearm. As
such, they will restrict his freedom to such a substantial degree
that they do nonetheless implicate a protected liberty interest,
which may not be revoked without according Defendant procedural due
process; specifically, an individualized determination as to
whether the onerous mandatory conditions are needed to assure the
Defendant's future appearance or to avoid a danger to the
community. No such determination has occurred here.
Note that the magistrate's decision had a substantive effect, beyond
just requiring the government to provide more evidence; the government
apparently couldn't provide the evidence, so the defendant was
released without the firearms restriction.
By the way, here is [6]the government's argument for imposing the
firearms restriction, and for reversing the magistrate's ruling:
[T]here is no indication that the restriction on firearms will
impose any burden on Defendant whatsoever, as Defendant has not
contended that he has any need to possess or have access to
firearms. Moreover, this condition will help ensure the safety of
the community by restricting Defendant�s ability to harm himself or
others by using a firearm....
[C]riminal defendants, such as Defendant, who have been charged
with a violent crime simply do not have a �fundamental right� to
possess or have access to firearms. Accordingly, the condition
precluding possession of firearms for the relatively brief time
pending trial does not affect a fundamental liberty interest.
There's no explanation for why simply being charged takes away a
defendant's Second Amendment rights. (Note also that Kennedy's crime
-- possession of child pornography -- is not a "violent crime" under
any normal understanding of the term, though it is a serious crime.) I
also put up [7]Kennedy's response to the motion, though it focuses on
other matters.
References
1. http://www.volokh.com/posts/1231712651.shtml
2. http://www.law.cornell.edu/uscode/18/3142.html
3. http://www.volokh.com/posts/1231712651.shtml
4. http://volokh.powerblogs.com/files/kennedyorder.pdf
5. http://volokh.powerblogs.com/files/kennedyorder2.pdf
6. http://volokh.powerblogs.com/files/kennedymotion.pdf
7. http://volokh.powerblogs.com/files/kennedyresponse.pdf
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