Posted by Eugene Volokh:
Punishment for Possessing Guns at Home While Dealing Drugs from Home:
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1234996197
The [1]Seventh Circuit (in U.S. v. Jackson) upholds this against a
Second Amendment challenge, in an opinion by Judge Frank Easterbrook.
The Court said in Heller that the Constitution entitles citizens to
keep and bear arms for the purpose of lawful self-protection, not
for all self-protection. Jackson was distributing illegal drugs
(cocaine and unlicensed dextromethorphan hydrobromide tablets) out
of his home. The Constitution does not give anyone the right to be
armed while committing a felony, or even to have guns in the next
room for emergency use should suppliers, customers, or the police
threaten a dealer�s stash. Jackson says that he lived in a
dangerous neighborhood and wanted to protect himself from burglars
and other marauders. That may be so, but his decision to operate an
illegal home business also matters. Suppose a federal statute said:
�Anyone who chooses to possess a firearm in the home for
self-protection is forbidden to keep or distribute illegal drugs
there.� Such a statute would be valid, as Jackson�s lawyer
conceded. And if Congress may forbid people who possess guns to
deal drugs, it may forbid people who deal drugs to possess guns.
The statements �if you have a gun, you can�t sell cocaine� and �if
you sell cocaine, you can�t have a gun� are identical.
I think this analysis is ultimately right, but the hypothetical
involving the "Anyone who chooses to possess a firearm ..." statute
doesn't advance matters much. Statutes that say "anyone who chooses to
[exercise a constitutional right] is forbidden to [commit a certain
crime]" -- and the penalty is higher than the penalty for committing
the crime while one is not exercising the constitutional right --
might well not be constitutional.
Consider a different hypothetical: Say a federal statute (which had a
penalty higher than that for simple fraud) said "Anyone who chooses to
possess a firearm in the home for self-protection is forbidden to
commit computer frauds at the office." Of course the government could
and does forbid frauds. But it doesn't follow that it can impose extra
punishment for committing fraud while exercising a Second Amendment
right in a way unrelated to the fraud.
What's doing the work, I think, are the earlier sentences: "the
Constitution entitles citizens to keep and bear arms for the purpose
of lawful self-protection, not for all self-protection," plus "The
Constitution does not give anyone the right to be armed while
committing a felony, or even to have guns in the next room for
emergency use should suppliers, customers, or the police threaten a
dealer�s stash." The Constitution doesn't protect the use of guns in
crimes, and even having the gun around when it materially facilitates
the crime (as it does for the drug sale in the next room but not for
the computer fraud at the office) is itself a form of use of guns.
Here's what I say related to this in a draft article on Implementing
the Right To Keep and Bear Arms, which is forthcoming in several
months in the UCLA Law Review; among other things, I focus on the
doctrine developed by some state courts applying their state
right-to-bear-arms provisions, including by courts that have indeed
struck down some other government actions on state right-to-bear-arms
grounds:
Many states ban possession of guns while possessing drugs or
committing a crime....
The right to keep and bear arms in lawful self-defense doesn�t
include the right to use those arms in a crime. [Footnote: See,
e.g., D.C. v. Heller
, 554 U.S. at __ (describing the Second Amendment right as being a
right to possess guns for �traditionally lawful purposes�); United
States v. Bowers, 2008 WL 5396630, *2 (D. Neb. Dec. 23); Cockrum v.
State, 24 Tex. 394, 401-03 (1859); State v. Daniel, 391 S.E.2d 90,
97 (W. Va. 1990).] And this would include using the guns in ways
short of firing or even brandishing them (for instance, by carrying
them in case one wants to fire or brandish them, which might well
embolden the criminal and deter others who know that this criminal
is armed).
On the other extreme, keeping a gun for self-defense in a way
that�s unconnected to the crime should generally be seen as the
exercise of one�s constitutional right: Consider, for instance, a
person who possesses a gun for home defense while engaged in
consensual sex with someone under the age of consent, or while
committing a fraud at work. [Footnote: See, e.g., Biddinger v.
State, 846 N.E.2d 271, 278 (Ind. Ct. App. 2006) (holding that mere
possession of a firearm may not be used as an aggravating factor at
sentencing).]
One can hypothesize ways in which even this sort of gun possession
could help one commit a crime, for instance to resist arrest in the
event that one is caught, or to threaten witnesses or
coconspirators should such a threat be necessary. But so long as
such possible misuse of a gun is entirely speculative, and not part
of either the defendant�s past behavior during the crime or clearly
planned future behavior, those hypotheses shouldn�t suffice to turn
constitutionally protected behavior into criminal behavior. And the
exercise of constitutionally protected rights in ways that are
unconnected with criminal conduct generally can�t be used to
enhance the sentence for such criminal conduct. [Footnote: See,
e.g., Dawson v. Delaware, 503 U.S. 159 (1992).]
This in fact is how many courts have analyzed this, in the �nexus�
line of cases: When a gun is not possessed on the person, gun
possession can only be treated as criminal or used to enhance a
sentence if there is an adequate connection between the possession
and the crime. [Footnote: State v. Gurske, 118 P.3d 333, 335 (Wash.
2005) (one in a long line of Washington state cases on the
subject); State v. Blanchard, 776 So. 2d 1165 (La. 2001); People v.
Atencio, 878 P.2d 147, 150 (Colo. Ct. App. 1994). See also Brewer
v. Commonwealth, 206 S.W.3d 343, 347-48 (Ky. 2006) (relying partly
on right to bear arms in holding that firearm may not be forfeited
based on the owner�s conviction of a crime unless there�s a nexus
between the firearm and the crime).]
In particular, �mere proximity or mere constructive possession is
insufficient to establish that a defendant was armed at the time
the crime was committed�: �[T]he weapon must be easily accessible
and readily available for use,� �whether to facilitate the
commission of the crime, escape from the scene of the crime,
protect contraband or the like, or prevent investigation,
discovery, or apprehension by the police.� [Footnote: Gurske, 118
P.3d at 335�36.] This test is far from perfectly clear, and needs
more scholarly attention. But it seems like a reasonable first cut
aimed at making sure that criminals are punished for their criminal
behavior and not for their constitutionally protected behavior.
References
1. http://www.ca7.uscourts.gov/tmp/L40XMM9U.pdf
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