More On Heller; Gun Crimes Turned Upside Down

Just as we tend to think that everything has already been invented, only to be proven wrong several times a day, we tend to view Constitutional law as immutable.  Written in stone, black letter, beyond cavil, there are a host of phrases that lawyers and judges love to pull out to shut down any novel argument or distinctive approach to the law that hasn’t already been approved by someone else.

Mike O’Shea, guest-blogging at Concurring Opinions, deconstructs the  D.C. v. Heller case, where Heller’s merits brief is due this coming week.  This case may turn our view of the Second Amendment right to bear arms upside down.  But remember this oldie but goodie?

Since the Second Amendment right ‘to keep and bear Arms’ applies only to the right of the State to maintain a militia and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

United States v. Warin, 530 F.3d 103 (6th Cir. 1976).  Every schoolchild is taught how we started with  Plessy v. Ferguson and ended with Brown v. Board of Ed.  Was Thurgood Marshall just another nutty lawyer when he argued against an interpretation that was beyond question was totally wrong?

The notion that the Second Amendment applied only the collective right to possess guns was beyond question in Warin, and in the minds of lawyers of my generation and beyond.  Yet today, the argument is persuasively made that we were wrong, and obviously so, for all that time.

Mike O’Shea provides a comparison of the language of the Second Amendment with the rest of the Bill of Rights, and how they’ve been viewed by the Supreme Court:

• The First Amendment’s Establishment Clause appears merely to bar Congress from interfering with state religious establishments. However, it has been interpreted to confer a (fully incorporated) individual constitutional right to be free from religious establishment, complete with a custom-tailored exception to the taxpayer standing doctrine to encourage Establishment Clause challenges to legislative action.

• The First Amendment’s Free Speech Clause protects the “freedom of speech, [and] of the press.” It has been interpreted to protect the private possession of works of obscene pornography and at least some forms of virtual child pornography.

• The Fourth Amendment simply states that search warrants shall be subject to requirements of probable cause and particularity. It has been interpreted to presumptively require a warrant for any search or seizure, unless a specific exception applies.

• The Fifth Amendment: Miranda. Enough said.

• The Sixth Amendment states that a criminal defendant has the right “to have the Assistance of Counsel for his defense.” It has been interpreted to confer a right, not merely to receive assistance from retained counsel, but to have counsel appointed by the government, free of charge, if a defendant cannot otherwise afford it.

• The Eighth Amendment prohibits cruel and unusual punishment. Although statutes imposing the death penalty for serious felonies were common at the time of the Framing, the Eighth Amendment has been interpreted to prohibit capital punishment for the rape of an adult woman (and probably for child rape).

One thing that smacks me in the face when I read Mike’s comparison is how our political and social agenda has shaped constitutional interpretation.  This is a bitter pull for those of us who argue against it today, when the pendulum seem stuck on the law and order side of the aisle (actually, law and order is both sides of the aisle today).   Hating to be overtly hypocritical, I find this troubling.

But the “emanations and penumbras,” as Wild Bill Douglas called them in Griswold, of the Heller case may open some very curious doors in the world of criminal law.  How many of our clients are in prison, or branded a elon and denied the full panoply of rights given the rest of the People, because of their possession of an unlicensed handgun?  If Heller goes as anticipated, will this mean that all of these defendants, past and present, be exonerated or have their record expunged for engaging in conduct that the Constitution says they have a right to do?  It’s not just that the crimes for which they stand convicted are unconstitutional, but that they have, and always had, an affirmative right to possess a gun.  How can they suffer punishment, or perpetual taint, for the exercise of a right?

But it goes even farther.  If the government imprisoned them for exercising a constitutional right, are they not then entitled to compensation for this wrongful imprisonment?  And the felon in possession issue, not to mention the extra 5 years for the overbroad “use and carry” in a drug case, are huge.  Will this open the door to 1983 actions across the land?  When the vision of a basic constitutional rights turns completely around, it opens the door to a breathtaking bundle of issues, each of which will implicate in some way the work of criminal defense and civil rights lawyers.

The Heller case has the potential for a seismic shift in criminal law.  Hold on to your hats.  This could be a wild ride.

12 thoughts on “More On Heller; Gun Crimes Turned Upside Down

  1. Shamalama

    The Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units.

    The text of the Amendment’s operative clause, setting out a “right of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure. The Amendment’s prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion.

    No fewer than twenty-one decisions by the courts of our states have recognized an individual right to keep and bear arms, and a majority of these have not only recognized the right but invalidated laws or regulations which abridged it.

    “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” (Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.)

  2. Joel Rosenberg

    My simple rule of thumb is that it may be appropriate to restrict and individuals right to keep and bear arms in such situations where it’s appropriate to restrict other rights. A convicted and imprisoned person doesn’t have his (or her, although usually it’s a him) right to peacefully assemble in public the way that the rest of us do, or to attend religious services at the institution of his choice; even somebody on parole isn’t — appropriately, IMHO; YMMV — free to come and go as he pleases or associate with whomever he wants.

    But once the sentence is over, seems to me that restrictions on fundamental rights should be over, too.

    That said, I’m not hopeful that a good decision in Heller will overturn many the thousands upon thousands of restrictions, under the law, to the RKBA, and am pretty sure that it won’t overturn much of any quickly.

    Still, it could be step in the right direction. That “gun control” laws are a bad idea and a restriction on individual liberty isn’t a new insight, after all; they were originally formulated to do just that. (I’m assuming you’ve read Clayton Cramer’s “The Racist Roots of Gun Control”; if not, you should.)

  3. SHG

    A similar effort was made yesterday by a non-lawyer commenter, who expressed his thoughts on what would be reasonable.  The problem with such expressions is that everyone has their own idea of what constitutes a reasonable outcome in the scheme of their world view, and everyone’s idea of reasonable differs slightly, if not greatly, from everyone else’s.

    The bigger problem is that constitutional jurisprudence is supposed to maintain a high level of intellectual integrity.  Yes, it doesn’t always meet that goal, but that’s the goal nonetheless.  If the Supreme Court in Heller does so, and goes far enough in its decision to flesh out a framework going forward, the ability to craft exceptions where the Constitution admits none may be a problem.  Many people, even those who are forceful advocates for individual rights under the Second Amendment, still believe that the right should not be unrestricted.  Felons, psychos, etc. should not be armed, perhaps (this is not, nor is it intended, as an exhaustive list or an example of your personal views, Joel).

    Whether the Court will create a rule that intellectually allows for such restrictions has yet to be seen, but it may well be very difficult to craft while maintaining the intellectual integrity of a new-found interpretation of the Second Amendment.  When the Supreme Court makes a monumental change to a long-standing, black letter rule, it’s usually best to say it strong and clear.  This is why it is going to be very interesting to watch what happens in Heller.  There is a lot at stake, and there are a lot of pitfalls in the path to an individual right to bear arms.

  4. Mark Bennett

    Consider, also, that the Second Amendment doesn’t limit our right to bear arms to only certain types of arms. If all people can bear arms, then surely they can bear all sorts of arms.

    Now that would breathe life into the Second Amendment!

  5. Joel Rosenberg

    Oh, sure; I wasn’t suggesting that my (obviously correct) views on what’s reasonable ought to be the basis for jurisprudence. After all, what would the SCOTUS do if I’m not around?

    That said, I will take exception with the implication that any right is or should be — under the law — unrestricted. That’s simply not possible, as rights often conflict. The right of Thugs to practice their religion doesn’t extend to them being permitted to strangle strangers in their putatively sincere worship of Kali. My right to free speech, doesn’t extend to being able to post on your blog; I post here only because you’re gracious enough to permit me.

    Your argument, though, that an individual rights interpretation of the Second Amendment is “new-found” is, I think, something of a stretch. What is, I think, new is the argument that the recent (and extensive) body of Constitutional law applying to other individual rights should be applied to the RKBA — but that’s kind of unavoidable, given that the expansiveness of, say, First Amendment protections to cover such activities as, say, lap dancing is awfully new.

  6. SHG

    Absolutely!  I  wondered whether a variety of swords, dress for court, perhaps a nice Scottish Claymore for less formal ocassions, will become de rigor.

  7. SHG

    Well, if you keep writing about smut like lap dancing (whatever that is), my graciousness may reach its limit.

    Your point that rights are not absolute is well taken.  But what constitutional right impairs the right of a convicted felon to bear arms?

  8. Shamalama

    My only point was to acknowledge that I, as a gun owner and gun carrier, sincerely believe that the 2A was written to limit the federal government from preventing me, an common individual, from carrying a weapon.

    The 2A is not about a militia and does not reference hunting; it was established to allow the law-abiding citizen an ability to protect themselves. It goes to the core of the principles of liberty, independence, and self-reliance.

  9. SHG

    Then that’s the comment you should have made.  The Supreme Court doesn’t decide cases by popular vote, nor ask the “common individual” how they would interpret the Constitution. 

    As a gun owner and carrier, you naturally subscribe to this belief.  Others, not gun owners and carriers, believe differently.  If all goes well, the Court will decide what the Second Amendment means based upon language, precedent, history and reason.  The bulk of academic and legal opinion appears to be favoring the interpretation that seek.

    But empty rhetoric, like “It goes to the core of the principles of liberty, independence, and self-reliance,” does little to advance your cause or convince anyone of anything.  Since everything is leaning heavily in favor of your preferred interpretation, you might want to lay low on the rhetoric and await the Heller decision.  I doubt that any empty rhetoric is going to sway the Supreme Court at the moment.

  10. Doug Beatty

    Restrictions on individual rights, such as the right of the people, must be narrowly tailored and serve a compelling public interest.

    A total ban on private ownership of effective defense tools is neither under any reasonable measure.

    The laws in D.C. have not reduced crime. Indeed the CDC could not find one firearm restriction that had reduced crime.

    A total ban is not narrowly tailored.

    Also, which part of the bill of rights will we invalidate next?

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