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Monday, January 12, 2009

The Weird Politics of Post-Heller Gun Regulation

What I found most fascinating about the 2008 elections was the shift in political allegiances as issues changed and interests realigned.  The bailout was one example: criticism and support of the $700 billion loan plan cut across traditional political and economic allegiances.  The McCain-Palin populism was another.  And in the post-Heller era of gun regulation, I think we'll see another splintering of an ideological framework.

18 U.S.C. Sec. 3142(c)(1)(B)(vii) requires that those indicted on certain crimes must "refrain from possessing a firearm, destructive device, or other dangerous weapon" when out on bail.  In U.S. v. Arzberger, a federal magistrate judge found this provision to be unconstitional.  The case involved someone indicted on child pornography crimes. Here are some excerpts from the opinion (editing taken from Eugene Volokh at the VC):

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]. . . .

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."  . . .

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....

Am I reading too much into the opinion, or is there an aspect here of "You asked for it, you got it!"  In other words, Heller is seen as a conservative opinion, given that it protects the right to bear arms.  But "tough on crime" measures are also generally seen as conservative, too.  Here, we have a "tough on crime" statute in direct conflict with a newly invigorated right to bear arms.  Perhaps some liberal judges will have fun with how this plays out.  Again, I am probably reading too much into the opinion, but isn't there some indication of a raised eyebrow to this line: "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 you are interested in further discussion of Heller's interesting politics, you should read "From Ballots to Bullets: District of Columbia v. Heller and the New Civil Rights," by my colleague Anders Walker.  Here is the abstract:

This article posits that the Supreme Court's recent Second Amendment ruling District of Columbia v. Heller is a victory for civil rights, but not in the sense that most activists from the 1960s would recognize. Rather than a product of mid-century legal liberalism, Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights. The implications of this are potentially great. By declaring the right to use deadly force in self-defense an "essential" right, the Court has just positioned itself to use the same due process analysis that it did in Roe v. Wade to invalidate municipal gun bans, without having to overrule past opinions like Cruickshank or even bothering to incorporate the Second Amendment to the states.

Posted by Matt Bodie on January 12, 2009 at 04:48 PM in Matt Bodie | Permalink


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This reminds me of what the Ninth Circuit was doing with the commerce clause before Raich (2005) stopped it in its tracks. During a period of about a year before Raich was granted cert. the Ninth Circuit held not only that the marijuana prosecutions in Raich exceeded Congress' commerce power, but that a prosecution for child pornography (which, if I remember right, was a merely a family taking photos of themselves in the nude) and a prosecution of a guy for making a home-made machine gun (ok, not exactly a "left wing pinup defendant," but still it was pursued by the Bush justice department), were unconstitutional. Basically, the Ninth Circuit said, "you want Lopez-Morrison? We'll show you Lopez-Morrison!" Many hoped the liberals on SCOTUS would also take the bait, but it was not to be. Perhaps this post-Heller path will proceed differently?

Posted by: Anthony B. Sanders | Jan 13, 2009 11:27:38 AM

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