A Small 2nd Amendment Victory

Friday, June 19, 2009

A federal court in Utah issued a ruling that is mostly favorable to the 2nd and will hopefully be followed by other courts. The Volokh article gives a good, detailed explanation, but I will try to summarize it. Federal law prohibits anyone convicted of any kind of domestic assault from ever possessing a firearm. In this case, the defendant, following a "domestic dispute", was charged with violating this law. It is important to note that, while not a sterling character, he had no history of violence with a gun, nor was there any evidence that he ever even fired his gun.

The court said a few important things:

The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest.

Basically, they said that a law that deals with the 2nd triggers strict scrutiny. This has not been the case up until now. They also said:

If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the Defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.

This is part of what they said would be part of the jury instructions. They will allow the defendant to use this non-risk of violence as an affirmative defense. In other words, if the defendant is able to show that he is not at risk for hariming someone with a gun, then he will be found not guilty of violating the gun possession law. Without this, if he is found (beyond a reasonable doubt) of possessing a gun, he would be guilty.

I think this is a reasonable rule. At first glance, it is hard to argue that domestic abusers should be allowed to have guns, but that rule isn't always far and people should be allowed to challenge it under certain conditions. Let's say that a 19 year old is convicted of misdemeanor domestic assault. Under 18 U.S.C. § 922(g)(9), they would never be allowed to ever legally possess a gun. It doesn't matter what kind of life they have lived or how much time has elapsed. It is a lifetime ban. People should be offered some mechanism to challenge the ban and show that they are no longer dangerous.


B Mac 7:27 PM  


This judge decided to change the level of scrutiny under which a law should apply. He did so based on a personal interpretation of the 2nd amendment that applies its protections to individual actions.

What's the definition of "judicial activism" again?

I don't say this to disagree with the ruling; I say it to yell (indirectly) at people who complain about 'liberal judicial activists'.

steves 12:17 AM  

Judicial activism is whenever a judge makes a decision that you don't like. Seriously, that accusation is so meaningless today that I ignore it. Most of the time, it is just a lazy substitute for a substantive and logical argument. Unfortunately, I hear plenty of complaints from both sides about judges, but the right is more likely to use the activist label.

As to your question, the judge was probably basing his ruling on the fact that higher courts have never set a specific test. Using what has been said in recent cases, they decided to establish some higher level of scrutiny that has been used in other cases dealing with the BOR and fundamental liberties. I am sure this will works it's way up the ladder in due time.

B Mac 9:59 AM  

Agreed Steve. I think the courts are going to struggle to develop a strandard under which 2nd amendment/gun rights cases are to be evaluated, until and unless the high court weighs in.

And I still don't think they will do so for a few years. Why? So we have stuff to talk about.

steves 3:08 PM  

I am optimistic that the Supreme Court will take a look this fall, but I don't know if they will articulate a workable test.

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