The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:

[aileron]

Cool.

http://volokh.com/posts/1231712651.shtml

[Eugene Volokh, January 12, 2009 at 10:33am] Trackbacks
The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:

That's U.S. v. Arzberger. The gun control law is the part of 18 U.S.C. § 3142(c)(1)(B) that requires that when someone is charged with possessing child pornography (among other crimes) and is freed on bail, he be ordered not to possess any firearm. Here's the discussion by Magistrate Judge James C. Francis IV (of the Southern District of New York) (some paragraph breaks added):

A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release.... [But, given D.C. v. Heller, t]o the extent ... that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose, it also establishes a protectible liberty interest [for Due Process Clause purposes]. And, although the Supreme Court has indicated that this privilege may be withdrawn from some groups of persons such as convicted felons, there is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.

Again, the next step in the analysis is to apply the Mathews v. Eldridge balancing test. The private interest at stake is paramount: the right to possess a firearm is constitutionally protected. In Heller, the Court made clear that there is no hierarchy of constitutional rights: "[t]he very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon." The remaining Mathews factors play out much as they did in the analysis of the curfew requirement.

First, there is a serious risk that, in the absence of an individualized determination, an accused person will wrongly be deprived of his Second Amendment rights. Indeed, the Government may well find it difficult to articulate a nexus between an accusation of receiving child pornography and the need to prohibit possession of a firearm. Second, providing the defendant with an opportunity to be heard with respect to the appropriateness of this condition would reduce the potential error rate without creating a significant burden. And, finally, the Government's interest in ensuring the safety of the community would not be undermined by requiring an independent judicial determination of the danger caused by the defendant and the efficacy of the proposed bail condition.

Accordingly, the Adam Walsh Amendments [the name of the statute involved here -EV] violate due process by requiring that, as a condition of release on bail, an accused person be required to surrender his Second Amendment right to possess a firearm without giving that person an opportunity to contest whether such a condition is reasonably necessary in his case to secure the safety of the community. Because the Amendments do not permit an individualized determination, they are unconstitutional on their face. The Government's application to impose as a condition of bail that Mr. Arzberger not possess a firearm is therefore denied....

[Footnote:] The determination that the mandatory imposition of each of the conditions requested by the Government violates procedural due process does not preclude the Government from renewing its application provided that it is prepared to proffer a basis for requiring any or all of these conditions in Mr. Arzberger's particular circumstances.

This is formally a Due Process Clause holding, but it rests on a conclusion about the Second Amendment. Recall that the Due Process Clause (sometimes) entitles people to hearings only when there's a legally relevant factual dispute to be resolved. Persons "who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme," or are made relevant by the Constitution.

If Congress were constitutionally allowed to ban all gun possession by people who have been indicted for possessing child pornography, whether or not those people are found to pose a special risk of gun violence, then no hearing would be required. That's why the excerpt I quoted begins with the sentence "A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release." If Congress could categorically do this, then there'd be no factual issue to resolve at the hearing. All the evidence in the world that this person is unlikely to pose a danger of gun violence will be irrelevant under the statutory/constitutional scheme.

The hearing is required only because at least some such indictees still have the "constitutionally protected" "right to possess a firearm" — presumably those indictees as to whom "such a [no firearms] condition is reasonably necessary in [their] case[s] to secure the safety of the community," which is to say those who don't pose any special risk of misusing their guns. (I say "special risk" because obviously just the general risk that any gun owner may misuse his guns can't be enough: If it were, no hearing would be needed, since such a risk is present for everyone.)

In any case, this is an important decision, though just from a magistrate judge. For other cases in which the Second Amendment has been relied on in a claimant's favor, see here, here, and here. But none of these cases involved a holding that a gun control law was unconstitutional, even as applied to a particular claimant.

For other views on gun possession by indictees, see State v. Winkelman, 442 N.E.2d 811 (Ohio Ct. App. 1981) (upholding a categorical ban on gun possession by indictees, though noting that it imposes only a “temporary limitation,” with provision for relief “[s]hould the temporary limitation work an undue hardship upon the indicted party”), overruled on other grounds, State v. Frederick, 1989 WL 80493 (Ohio Ct. App.); State v. In, 18 P.3d 500, 503 (Utah. Ct. App. 2000) (also stating that such a ban is constitutional, but without a detailed explanation). Compare State v. Spiers, 79 P.3d 30, 34-35 (Wash. Ct. App. 2003) (ambiguous on whether a categorical ban on gun possession by certain kinds of indictees was constitutional, or on whether such a ban was constitutional when there was a finding that the indictee “poses substantial danger”).

[BitterVoter]

I don't see the issue. ..I know the argument is that people with child pornography have a correlation to actually committing pedophilia.

I feel that the system is broken especially in that respect. I have even heard that some people, as a condition of bail can be forced to waive their 4th amendment rights so that they can enter your home and search it, your person or anything you own without any warrants or consent! How can that be legal? "Waive your rights or risk your safety and life in jail."

I consider that extortion.

[elsensei]

it's not extortion. if you are convicted of a crime, and the crime calls for a prison term of 5 years, then it's 5 years in prison and i can guarantee you have no 4th amendment protection against search while you're in the can.

So parole is a bit of dealmaking.

the state says, "we'll free you from being Bubba's wife for the remainder of your sentence, but since you're a crook you'll have to agree to give up your 4th amendment right against search. Or, you can stay right where you're at and enjoy the nightly banging."

Sounds like a pretty good deal to me.

EDIT: Whoops! you said as a condition of bail. I thought you meant parole. The bail thing I've not heard of.

[Smokeybehr]

This is similar to the Emerson case, but on the criminal side as opposed to the civil side.

[sholling]

Originally Posted by elsensei

the state says, "we'll free you from being Bubba's wife for the remainder of your sentence, but since you're a crook you'll have to agree to give up your 4th amendment right against search. Or, you can stay right where you're at and enjoy the nightly banging."

I find it interesting that the world was aghast at prisoners being forced to wear underwear on their heads at Abu Ghraib, and we would all be calling for heads if a woman were raped in prison but somehow it's just funny as all get out that men are regularly raped in prison. Most just consider it a part of the punishment i guess. Now it's true that it might me poetic justice for child molesters, but it's still a constitutional violation.

[aileron]

Originally Posted by sholling

I find it interesting that the world was aghast at prisoners being forced to wear underwear on their heads at Abu Ghraib, and we would all be calling for heads if a woman were raped in prison but somehow it's just funny as all get out that men are regularly raped in prison. Most just consider it a part of the punishment i guess. Now it's true that it might me poetic justice for child molesters, but it's still a constitutional violation.

Its more than a constitutional violation! Also it is disturbing that society can feel that its proper punishment and its a reflection of disturbing vengeance mental processes that are at work with those in the justice system.

Its one of those things I hope in the future will be looked at as barbaric.

[Mulay El Raisuli]

Originally Posted by aileron

Cool.

http://volokh.com/posts/1231712651.shtml

This is VERY good. Not that I favor accused child porn types, but that it shows that the mind of at least Federal Magistrate has been changed by HELLER. More importantly, he's accepted the new legal standard & then applied it.

One Magistrate isn't going to change things. But, its more than possible that this ruling shows that change is indeed coming in that The Basic Question now being settled, all the rest will come our way.

The Raisuli

[Theseus]

I agree with the ruling in the fact that someone merely accused should not be stripped of any rights unless that person is considered to create a detriment to safety. I feel that to prove that the state will have to make the argument that THAT person poses a threat and not a general belief in threat.

[Liberty1]

The individual in this instance is only accused, not convicted and on parole. Nice ruling declaring unconstitutional the suspension of enumerated Rights as a condition of pretrial release!

[tango-52]

Originally Posted by Liberty1

The individual in this instance is only accused, not convicted and on parole. Nice ruling declaring unconstitutional the suspension of enumerated Rights as a condition of pretrial release!

Don't you mean "out on bail" awaiting trial? On parole would happen after serving time for a conviction.

[dfletcher]

Bottom line - the judge is saying innocent until proven guilty, the government can not restrict rights unless/until AFTER a conviction, in this case for possession of child porn, correct?

If this holds, is there any effect on TROs, such as often occurs during nasty divorces & such?

[ohsmily]

Originally Posted by Liberty1

The individual in this instance is only accused, not convicted and on parole. Nice ruling declaring unconstitutional the suspension of enumerated Rights as a condition of pretrial release!

Originally Posted by tango-52

Don't you mean "out on bail" awaiting trial? On parole would happen after serving time for a conviction.

No, he meant exactly what he said. If you follow his syntax, he said that the guy in this case is only ACCUSED and NOT convicted and NOT on parole (after being convicted).

[Liberty1]

Originally Posted by ohsmily

No, he meant exactly what he said.

LOL we took it to PMs to avoid the ever disastrous grammar arguments on CGN with derail threads and cause dissention amongst the ranks

Thanks for the back though .

[CA_Libertarian]

Originally Posted by dfletcher

If this holds, is there any effect on TROs, such as often occurs during nasty divorces & such?

This is what I was thinking.

I know a guy that is here from Germany on a work visa. During an argument, his wife hit him, so he left her. The next day, the cops show up at his work with a restraining order filed by his wife! It took 3 months for him to get the restraining order removed, and his case was very clear. (I think his wife ended up getting charged with making a false report.)

Now, this guy isn't a citizen, so he didn't have any guns in the first place. He also said after his 'guilty until proven innocent' experience, he plans to go back to Germany. (Apparently, in Germany you have to provide proof before you can get a restraining order.)

Is that is how bad it's getting here folks?! People are fleeing to Germany to get away from the USA injustice system.

I very much hope this ruling is the first step toward overturning some of our stupid laws. The only time someone should be deprived of their rights is when they have been convicted by a jury. Never before. The suspension of those rights (all of them) should end as soon as they serve their debt to society. Never after.

[Liberty1]

Originally Posted by dfletcher

If this holds, is there any effect on TROs, such as often occurs during nasty divorces & such?

Well it's from a magistrate judge in the Federal Southern District of New York, so it's far from binding and out side our federal circuit but it will raise eyebrows.

[hardrivr]

I know I just had breakfast with one of my clients, he owns several small businesses in town, and is originally from Greece... I asked him his feelings about gun control and where he was coming from... he said he didn't understand why the US is the only country that still has this issue, he said no other country has open carry or concealed weapons or are even able to go to a store and buy guns... his feeling was why have Law Enforcement officers if we're going to take the law into our own hands... I really wasn't aware of what other countries have or don't have... but that's a pretty good question, where does the US stand with other countries as far as gun control? Personally, I see our economy failing especially here in Calif, and don't really see the need to me to go out hunting to put meat our my table, but as far as someone coming into my house as taking the meat off my table is where I see the need for protecting my family and household. Just someone else's .02 worth on the matter...

[Flopper]

Originally Posted by hardrivr

I know I just had breakfast with one of my clients, he owns several small businesses in town, and is originally from Greece... I asked him his feelings about gun control and where he was coming from... he said he didn't understand why the US is the only country that still has this issue, he said no other country has open carry or concealed weapons or are even able to go to a store and buy guns...

If it weren't so sad, it would be funny how pretentious, self-righteous, and ignorant these Euro-trash are.

[Untamed1972]

Sounds like good grounds to challenge the required surrending, selling or transfering of firearms simply because someone has filed for a restraining order as well.

[wash]

I have a friend who's a former Yugo. He said that you could go to the Zastava factory and get whatever you want if you have the money.

That's not too far from Greece.

[Mitch]

Originally Posted by wash

I have a friend who's a former Yugo. He said that you could go to the Zastava factory and get whatever you want if you have the money.

Whoa, in a Communist country, no less?

[nick]

Originally Posted by Mitch

Whoa, in a Communist country, no less?

Not for a while.

Also, the chosen ones could always own guns in the communist countries. They just denied that, and other, rights to the rest of the population. Rather like our annointed ones.

As far as the rest of the world... Most countries out there were never really free. That includes the Western European countries. So just because they suck, should we follow in their footsteps?

Expanding on that argument, if Greece was so commonsense and sane, why come to this insane country in the first place?

[Mitch]

Originally Posted by nick

Not for a while.

Yugoslavia was a Communist country. Once it ceased to be Communist it ceased to be Yugoslavia.

Dunno what their gun laws were like, but I do know Serbia and Croatia are just awash with firearms.

And things are pretty free in Western Europe. I know since I used to live there.

[wash]

Communist or not, it wasn't behind the iron curtain. My friend owned a Mini and drove to Italy all the time. That was probably in the late 80's.

[Mitch]

Originally Posted by wash

Communist or not, it wasn't behind the iron curtain. My friend owned a Mini and drove to Italy all the time. That was probably in the late 80's.

Communist.

Yugoslavia was an interesting case. Tito was a Communist, but he gave the bird to Stalin (who fancied himself the worldwide leader of all Communist movements) following WWII and found his own path.

[a1c]

FYI, non-US citizens can own or purchase firearms in the US, provided they are permanent residents, or, id "non immigrant" aliens, if they have a hunting license.

[inbox485]

Originally Posted by dfletcher

Bottom line - the judge is saying innocent until proven guilty, the government can not restrict rights unless/until AFTER a conviction, in this case for possession of child porn, correct?

If this holds, is there any effect on TROs, such as often occurs during nasty divorces & such?

The way I read it, the ruling only required that there be an individual hearing rather than a blanket ruling. So if during a hearing the person requesting the TRO could provide some articulable reason why you having a firearm is a probable threat to them, I would imagine that the ruling would be satisfied.

[ilbob]

Originally Posted by inbox485

The way I read it, the ruling only required that there be an individual hearing rather than a blanket ruling. So if during a hearing the person requesting the TRO could provide some articulable reason why you having a firearm is a probable threat to them, I would imagine that the ruling would be satisfied.

I suspect that is exactly what will happen. It won't change a whole lot in the long run, but at least you will get a chance.

I don't really have an issue with TROs being issued, even if they are not merited, as long as it does not adversely affect the recipient in an unfair way.

[inbox485]

Originally Posted by ilbob

I suspect that is exactly what will happen. It won't change a whole lot in the long run, but at least you will get a chance.

I don't really have an issue with TROs being issued, even if they are not merited, as long as it does not adversely affect the recipient in an unfair way.

The big difference is that the judge will have to articulate the evidence that the person is a probable threat due to owning fire arms. A restraining order just to avoid having to see each other won't cut it. Unfortunately claims that threats were made probably would.

[wash]

Originally Posted by Mitch

Communist.

Yugoslavia was an interesting case. Tito was a Communist, but he gave the bird to Stalin (who fancied himself the worldwide leader of all Communist movements) following WWII and found his own path.

The point is that with enough cash and talking to the right person you can get whatever you want (including 20mm cannons and 40mm grenade launchers).

The security of a gun-free state is imagined.

[kcbrown]

Originally Posted by hardrivr

I know I just had breakfast with one of my clients, he owns several small businesses in town, and is originally from Greece... I asked him his feelings about gun control and where he was coming from... he said he didn't understand why the US is the only country that still has this issue, he said no other country has open carry or concealed weapons or are even able to go to a store and buy guns... his feeling was why have Law Enforcement officers if we're going to take the law into our own hands... I really wasn't aware of what other countries have or don't have... but that's a pretty good question, where does the US stand with other countries as far as gun control?

His perspective is the result of confusion on his part.

In particular, he's confused about the difference between law enforcement and self defense.

If you get the opportunity to talk to him again, ask him what an individual is supposed to do to protect his own life when the police aren't right there and the individual in question doesn't (for whatever reason) have the option of fleeing. If that line of questioning doesn't change his mind, ask him why the other countries don't place as much value on human life as the U.S. does, since that would clearly be the only reasonable conclusion to draw from the fact that people in these other countries don't have the right to self defense.

[kcbrown]

Originally Posted by wash

The point is that with enough cash and talking to the right person you can get whatever you want (including 20mm cannons and 40mm grenade launchers).

The security of a gun-free state is imagined.

Yep. The UK is proof of this, and that's even despite all the crazy surveillance they have over there.

Cameras won't protect you. The police won't protect you unless they just happen to be there at the right time, and perhaps not even then. Only you can guarantee your own protection.

[SimpleCountryActuary]

Originally Posted by wash

The point is that with enough cash and talking to the right person you can get whatever you want (including 20mm cannons and 40mm grenade launchers).

The security of a gun-free state is imagined.

I haven't decided if I want my own tank or a mistress. Hmmm. Maybe I'll check with my wife and ask her opinion.

[locosway]

If you commit a crime and are found guilty you lose most of your rights. You're no longer free once you're in jail/prison once those 12 peers say guilty. If people are worried about losing their freedom, they shouldn't commit the crime.

If someone is on bail then they're still not free. The alternative is being in a jail cell waiting for your trial. Now, keep in mind, this happens when there's actually evidence to charge someone with, not just willy nilly.

Now, I don't think that someone should have to forfeit their possessions simply because they're accused. But, if there's such strong evidence against such a person, then it's hard to argue that they should be allowed around weapons.

[sholling]

I can't agree with a lifetime loss of rights except for those who commit a violent crime. Maybe require a 10 year wait and court hearing before restoring them but there should be a way. For example those convicted of felony drug possession for a single joint during the 60s should be able to get their rights back by now. The same for other dumb kid mistakes.

But use a weapon in the commission of a violent crime and it should be a lifetime loss. Of course IMHO commit a violet crime with a gun and you should never-ever get out of prison. One strike. The same for rape and child molesters.

[hardrivr]

Originally Posted by sholling

I can't agree with a lifetime loss of rights except for those who commit a violent crime. Maybe require a 10 year wait and court hearing before restoring them but there should be a way. For example those convicted of felony drug possession for a single joint during the 60s should be able to get their rights back by now. The same for other dumb kid mistakes.

But use a weapon in the commission of a violent crime and it should be a lifetime loss. Of course IMHO commit a violet crime with a gun and you should never-ever get out of prison. One strike. The same for rape and child molesters.

I agree with you... but I still get stuck on the fact if a so called criminal gets his voting rights back, and become active in day to day activities then I think they should get all their rights back... if someone is too dangerous to be on the street with a gun why allow them on the street...

[Mulay El Raisuli]

Originally Posted by SimpleCountryActuary

I haven't decided if I want my own tank or a mistress. Hmmm. Maybe I'll check with my wife and ask her opinion.

I imagine that a tank would be cheaper. Besides, they have back seats, don't they?

The Raisuli

[Flopper]

Originally Posted by hardrivr

... if someone is too dangerous to be on the street with a gun why allow them on the street...

Exactly.

[inbox485]

Originally Posted by locosway

If you commit a crime and are found guilty you lose most of your rights. You're no longer free once you're in jail/prison once those 12 peers say guilty. If people are worried about losing their freedom, they shouldn't commit the crime.

If someone is on bail then they're still not free. The alternative is being in a jail cell waiting for your trial. Now, keep in mind, this happens when there's actually evidence to charge someone with, not just willy nilly.

Now, I don't think that someone should have to forfeit their possessions simply because they're accused. But, if there's such strong evidence against such a person, then it's hard to argue that they should be allowed around weapons.

Quite right. I've never even heard of frivolous charges. The constitutional guarantee against unreasonable bail is to protect against this exact type of abuse. I wouldn't be so quick to brush rights away. The ruling still allows individual hearings where a judge can rule that the evidence that your firearms pose an ongoing threat is sufficient enough to warrant their confiscation.