Heller in Wisconsin

August 7, 2008

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

Recently, the Eastern District of Wisconsin denied a felon’s motion to withdraw his guilty plea. Kenneth Robinson plead guilty to possession of a firearm as a felon. See Case. The motion stated that in light of District of Columbia v. Heller 128 S. Ct. 2783 (2008), the federal regulation of firearm possession by felons, 18 U.S.C. Sec. 922(g)(1), is unconstitutional as applied. The statute states, “it shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce any firearm or ammunition.”

The defendant, Mr. Robinson, argues that he can withdraw his guilty plea because his crime is no longer a crime. Mr. Robinson is incorrect. The statute remains valid on its face and as applied to Mr. Robinson.

Heller is parsimonious in application. The decision invalidated an absolute ban on handgun possession. The Supreme Court was careful to allow for reasonable regulation of the “new” individual right to keep and bear arms. Thus, the federal government lost the power to ban handgun possession but retained the power to regulate possession. The Eastern District of Wisconsin does a good job explaining the flaws in Mr. Robinson’s argument based on Heller. However, Mr. Robinson would be incorrect prior to Heller.

Even prior to Heller, Courts traditionally subjected laws regulating the right to keep and bear arms to a “reasonable regulation” standard of review. See Parker, 478 F.3d 370, 399 (D.C. Cir. 2007). Under this standard, courts should invalidate a gun law if it is arbitrary or so restrictive that it “eviscerates,” renders “nugatory,” or results in the effective “destruction of the right to bear arms.” See, e.g., State v. Hamdan, 665 N.W.2d 785 (Wis. 2003).

Such courts, applying a reasonableness standard, all recognized, “[t]he police power cannot [ ] be invoked in such a manner that it amounts to the destruction of the right to bear arms.” State v. McAdams, 714 P.2d 1236, 1237 (Wyo.1986). Under this standard, courts traditionally upheld gun control laws in limited situations banning only: 1) a limited class of persons from possessing firearms i.e. felons and intoxicated persons; 2) particular types of firearms; 3) the carrying of concealed firearms outside of one’s home or office; and 4) the transportation of loaded firearms. See, e.g., Johnson, 497 F.2d at 550 (upholding a statute restricting felon access to firearms). As Parker explained, states may impose such “time, place, and manner restrictions” on the right to keep and bear arms because they are “presumably reasonable.” 478 F.3d at 399. The restrictions on the Second Amendment right are parallel to those imposed on First Amendment rights. See What Does D.C. v. Heller mean for *First* Amendment Rights.

It appears that Mr. Robinson has little recourse based on court precedent pre and post Heller. While the Supreme Court ruled that the right to keep and bear arms is an individual right, it did not deem the right absolute. Certain restrictions are allowed including those levied on Mr. Robinson.

The Nevada ACLU: One chapter gets it, 49 to go.

July 16, 2008

Popehat.com reports:

The ACLU has long refused to acknowledge an individual right to bear arms, insisting on a narrow, collective-militia-rights interpretation of the Second Amendment. That’s unprincipled. It’s not unprincipled because the collective rights interpretation is self-evidently stupid or dishonest; that interpretation is a perfectly arguable, though wrong. The ACLU’s position is unprincipled because it bills itself as a defender of individual rights and has consistently taken the most pro-individual-right position possible in interpreting the rest of the Bill of Rights. Their flat declaration that ‘in our view, neither the possession of guns nor the regulation of guns raises a civil liberties issue’ is inconsistent and unconvincing.

I agree with Popehat on this one (and I bet that my occasional guest blawger and former superstar student Jon Blevins will post a concurring comment in less than 45 seconds).

I’m a member of both the ACLU and the NRA — which means that I am not welcome in either group. As much as I dislike the NRA’s stance on everything except the Second Amendment, and as much as I wish that the ACLU would drop its Affirmative Action cheerleading (leave it to other groups), I love the Constitution. If it takes two membership fees per year to protect the entire Bill of Rights, so be it.

However, if I lived in Nevada, I wouldn’t need to waste my money supporting the Charlton Heston branch of Scientology. The Silver State’s ACLU gets that Civil Liberties equals the whole Bill of Rights, not just the parts that hippies like.

In light of the United States Supreme Court’s decision concerning the D.C. handgun ban (District of Columbia v. Heller) the ACLU of Nevada considers it important to clearly state its position regarding the right to bear arms. The Nevada ACLU respects the individual’s right to bear arms subject to constitutionally permissible regulations. The ACLU of Nevada will defend this right as it defends other constitutional rights. This policy was formulated by our afilliate Board in light of both the U.S. Constitution and the clearly-stated individual right to bear arms as set out in the Nevada Constitution’s Declaration of Rights.

Unless you live in Nevada, I don’t understand how you can support the ACLU and not the NRA (and vice versa). I think that the two groups should merge. Think about it. We could drive all the religious nuts out of the NRA, and for fun, we could hunt and eat the hippies! Yaay!

By the way, welcome to the blogroll, Popehat!

What does D.C. v. Heller mean for *First* Amendment Rights?

June 27, 2008

I’m not a Second Amendment buff. I follow Second Amendment cases like I followed basketball this year. I really didn’t perk up until the playoffs. That’s why I have asked Jonathon Blevins to guest blawg on the Heller case.

But, I follow First Amendment issues like I follow football. From the draft, to the pre-season to the final second in the Super Bowl, I’m glued to it. Accordingly, when an opinion of great Constitutional importance comes out, even if it is not a First Amendment case, I like to sniff around the case for dicta that might be used to flesh out the writer’s First Amendment beliefs. There is some good and some bad in this opinion.

Good – The First Amendment is an individual right

This seems like a “no duh” statement, but not everyone knows this.

I have had far too many conversations with students and with other law professors who have a misguided belief that the First Amendment can be analyzed from a collective right perspective. The argument being, since the marketplace still has plenty of erotica available, there is no Constitutional problem created by over-zealous suppression of adult entertainment. Essentially, from commenters to this blawg to some very respectable law professors, there is a growing (and misinformed) school of thought that the First Amendment might be a “collective right.”

In Heller, at page 5, the conservative majority confirms that the First Amendment is unambiguously a personal right, not a collective right. When even Scalia sides with me on a First Amendment issue, that makes me feel better.

Good – The First Amendment extends to new forms of communication

Some originalists claim that the First Amendment only protects communication that the founding fathers contemplated in 1789. This foolishness isn’t limited to pre-law students and laypeople. I have had an argument (out of court) with a member of one of Florida’s courts of appeal about this. His position was that since the founders were not thinking about adult entertainment when they wrote the First Amendment, they didn’t intend to protect it. One logical come-back to this is that the founders didn’t need strip clubs, they could just buy slaves and make them do whatever they liked. Who needs a stripper when you can just buy Sally Hemmings?

Scalia dispenses with this perspective at page 8.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Bad – The purpose of speech can impact its Constitutional protection

At page 22, Scalia introduces me to a new Constitutional principle – that the purpose of speech can render it unprotected.

Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

I hope that this was just careless language on Scalia’s part. It is true that we can’t speak in a defamatory, obscene, or threatening manner. However, I don’t agree that the speaker’s purpose in speaking can change protected speech to un-protectable.

Neutral – Just because the court doesn’t address something for a long time does not mean that it is settled law.

This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). See page 54.

Good (perhaps) – Scalia recognizes that our rights are at least as broad as they were believed to be at the time of the drafting of the Constitution.

Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views.

This can cut both ways. It seems to me that this passage means that free speech means free speech, and if it might be desirable to some, or even all, to limit today’s notions of free speech, the Constitution tolerates no such balancing test.

This passage also says that constitutional rights are “enshrined with the scope they were understood to have when the people adopted them.” To me, that means that the “scope” of the rights is the breadth of the conduct or speech they protected. However, some might argue that this means that types of speech that the founders didn’t think about, namely adult entertainment, might not fit. However, Scalia’s dicta on page 8 (above) seems to contradict that possible interpretation.

The other possible perversion of this passage is that courts might substitute the word “narrow” for the word “broad,” above. I believe that civil liberties are a one-way street. The courts can always rule that the Constitutional protections in the Bill of Rights expand as times pass, but not the other way around. Scalia seems to recognize this one-way street in this passage, but perhaps he merely felt no need to add a footnote or parenthetical with the word “narrow”.

Bad – Breyer’s Dissent and local government power

In page 23 of his dissent, Breyer relies upon some of the language in adult entertainment cases to support his deference to local government knowing “what is best” in terms of local regulation – the First Amendment be damned.

In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 440 (2002) (plurality opinion) (“[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather an evaluate data on local problems”)


This is one of the most uncivil opinions rendered in recent years. Not since Scalia’s dissent in Lawrence v. Texas do we find such mud-slinging.

But, if we dig through the dirt to play “dicta forensics,” it would seem as if the wings of the Court have traded sides with respect to the First Amendment. I would like to believe that they wouldn’t be so crass and results oriented that these positions will revert when the issue before these same justices has to do with free speech and adult entertainment.

A man can dream…

Jonathon Blevins on the Second Amendment

November 24, 2007

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

I have my own opinions on the Second Amendment that can be boiled down to this: The Second Amendment says what it says. While I will agree that it might not be socially desirable to have unfettered gun ownership in a nation of idiots, I can not pick and choose which rights guaranteed by the Constitution I may find socially desirable.

Mr. Blevins is the Chief Justice of the Moot Court Honors Board at Barry University School of Law. He has done a lot of research on this issue lately, and asked me why I hadn’t blogged on it.

Which got me thinking… why should I when I can just ask him to. What follows is his essay, which I am proud to present here at the Legal Satyricon. Read the rest of this entry »