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View Full Version : 9th Circut interprets "Heller" in "US v Gilbert"


Liberty1
07-17-2008, 2:01 PM
http://volokh.com/posts/1216249947.shtml

Ninth Circuit's Sensible Response to a D.C. v. Heller Claim:
From yesterday's unpublished U.S. v. Gilbert (some paragraph breaks added):

Keith Gilbert appeals his jury conviction on one count of conspiracy to manufacture unregistered firearms ..., one count of being a felon in possession of a firearm ..., seven counts of possession of a machinegun ..., and two counts of possession of an unregistered firearm ....

At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws. Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel's objections and instructed the jury to disregard Gilbert's answers.

The court also denied Gilbert's request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government's request, the following instruction:

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

... The district court's instructions were particularly appropriate to rebut inferences created by Gilbert's counsel's statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert's stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law.

The Supreme Court's recent decision in District of Columbia v. Heller, holding that the Second Amendment protects a limited individual right to possess a firearm -- unconnected with service in a militia -- does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms....

Gilbert also argues that the district court erred by preventing him from testifying as to his understanding and beliefs concerning the Second Amendment.... [T]he charges against Gilbert did not require, as an element of proof, evidence that Gilbert knowingly broke the law, only that he knowingly possessed weapons and knew the characteristics of those weapons. The only elements of proof which required inquiry into Gilbert's mental state were met: the government proved that Gilbert joined the conspiracy knowing its object and intending to accomplish it, and that he knowingly possessed machineguns and a rifle with a barrel less than 16 inches in length.

Thus we conclude that the district court acted well within its discretion to exclude Gilbert's testimony regarding his beliefs about the Second Amendment as inadmissible [as irrelevant]. For the same reason, we conclude that the district court's exclusion of Gilbert's testimony did not violate his right to present a witness in his own defense.

Whatever one might think about what D.C. v. Heller should have said about these issues (and I'm inclined to approve of its conclusions on them), it seems to me the Ninth Circuit read and applied Heller quite correctly.


http://volokh.com/posts/1216249947.shtml#400955

I disagree with Eugene. The court correctly applied Heller as far as convicted felons are concerned, but nothing in Heller stands for the proposition that there is no Second Amendment right to own a machine gun or a short-barrelled rifle. At best, the government is left to argue that machine guns and short-barrelled rifles are "particularly dangerous types of firearms" that, under Heller, government may regulate -- but the government saying that these guns are "particularly dangerous" is different from the government showing, under a meaningful standard of review, that these guns are "particularly dangerous".

I grant that the Supreme Court, as presently constituted, would likely uphold the constitutionality of the National Firearms Act. But that doesn't mean it's such a cut-and-dried question that the circuit courts of appeals are entitled to handwave.

Dirtbiker
07-17-2008, 2:12 PM
I am all for law abiding citizens owning whatever firearms they want. What I don't want are felons like this guy to own any firearms.

Gray Peterson
07-17-2008, 2:25 PM
Was this a federal case or a state case?

Liberty1
07-17-2008, 2:34 PM
In 1966 Gilbert was convicted twice, once for receiving stolen property and possessing explosives, and once for assault with a deadly weapon(ADW).

Liberty1
07-17-2008, 2:41 PM
Was this a federal case or a state case?

There's a link in the article to the decision:

UNPUBLISHED "US COURT OF APPEALS FOR THE 9TH CIRCUIT, No. 07-30153, D.C. No. 05-00071-MJP"

Casual Observer
07-17-2008, 3:47 PM
Was this a federal case or a state case?

9th Circuit = Federal.

The wording of Heller does leave open the option for the Government to regulate certain dangerous weapons.

The original 1934 NFA act isn't that much of a problem. The 1980s laws preventing the production and importation of select fire weapons for civilian purchase which is the limiting factor.

CHS
07-17-2008, 4:08 PM
No 2A right to posess machineguns? I thought that the whole reason behind the 200$ tax stamp and registration was because they wanted to ban machineguns in 34, but COULDN'T because people had a right to keep and bear arms. The tax stamp and registration was their way of complying with the constitution, but effectively banning machineguns at the same time (until years later when 200$ wasn't such a big deal anymore. heh).

I do believe the 200$ today would qualify as unconstitutional (poll taxes, anyone?), as well as the post-86 ban. However, the registration and background check factors of the NFA could probably be held to be constitutional. Individual state laws banning them should also be held to be unconstitutional, and hopefully will be so once heller is incorporated.

RomanDad
07-17-2008, 4:16 PM
9th Circuit = Federal.

The wording of Heller does leave open the option for the Government to regulate certain dangerous weapons.

The original 1934 NFA act isn't that much of a problem. The 1980s laws preventing the production and importation of select fire weapons for civilian purchase which is the limiting factor.

I agree.... Plus this is a fairly strange case in that hes challenging his right to testify of his belief of what the second amendment means, which is pretty irrelevant to whether he did it or not.

Casual Observer
07-17-2008, 4:39 PM
No 2A right to posess machineguns? I thought that the whole reason behind the 200$ tax stamp and registration was because they wanted to ban machineguns in 34, but COULDN'T because people had a right to keep and bear arms. The tax stamp and registration was their way of complying with the constitution, but effectively banning machineguns at the same time (until years later when 200$ wasn't such a big deal anymore. heh).

I do believe the 200$ today would qualify as unconstitutional (poll taxes, anyone?), as well as the post-86 ban. However, the registration and background check factors of the NFA could probably be held to be constitutional. Individual state laws banning them should also be held to be unconstitutional, and hopefully will be so once heller is incorporated.

In the 1930s, there was probably cause to ban machineguns. You could order a Thompson out of the Sears catalogue and have it sent to your house. In the era of "Machine Gun" Kelly, Bonny and Klyde, The St. Valentine's Day Massacre, etc. easy access to full auto weapons without *ANY* regulation or way of tacking sales didn't work.

Today, the cost of the stamp is not the prohibiting factor. The high prices of select fire weapons is. If we could manufature new machine guns, prices would drop.

Hopi
07-17-2008, 4:47 PM
In the 1930s, there was probably cause to ban machineguns. You could order a Thompson out of the Sears catalogue and have it sent to your house. In the era of "Machine Gun" Kelly, Bonny and Klyde, The St. Valentine's Day Massacre, etc. easy access to full auto weapons without *ANY* regulation or way of tacking sales didn't work.
Ouch. Do you mean to say that because criminals use firearms for crime, that is just cause to ban firearms?

Are you sure that is what you wanted to communicate?


Today, the cost of the stamp is not the prohibiting factor. The high prices of select fire weapons is. If we could manufature new machine guns, prices would drop.

I disagree, in part. If I want to chop down my old 1965 sears 12 gauge that is worth $50, I have to pay another $200+ just to remove a few inches from the barrel. I don't see that as reasonable. If there must be a tax on each firearm, the tax should be proportionate....