1st Circuit Upholds Ban on Minors Possessing Guns

From BNA, the First Circuit held on August 31, 2009:

The U.S. Court of Appeals for the First Circuit held Aug. 31 that nothing in the U.S. Supreme Court’s most recent interpretations of the Constitution’s Second Amendment and Commerce Clause has undermined prior rulings upholding the law that makes it a federal crime for a minor to possess a handgun, 18 U.S.C. §922(x)(2)(A). With respect to the Second Amendment challenge, the court decided that Section §922(x)(2)(A) is unlike the handgun ban struck down in District of Columbia v. Heller, 83 CrL 5148 (U.S. 2008), because it contains a number of exceptions, including one for self-defense and defense of others. (United States v. Rene E., 1st Cir., No. 08-1974, 8/31/09)

In an opinion by Judge Kermit V. Lipez, the First Circuit held that “Heller does not render section 922(x)(2)(A) unconstitutional as applied” to the defendant in this case, who was 17 when he was caught with a handgun. “We rest our conclusion on the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns,” the court said.

“Nothing in Morrison or Raich undermines our analysis of section 922(x)(2) in Cardoza,” the First Circuit decided. “Both decisions reaffirmed Congress’s power to regulate intrastate economic activity that substantially affects interstate commerce,” the court stressed. It also agreed with decisions from other circuits that have characterized other firearms prohibition statutes as suppressing demand and being, therefore, an essential part of regulating the national market in firearms.

This opinion seems about right in light of the limiting dicta from Heller. Although I appreciate the test Justice Scalia proposed regarding “longstanding traditions” to determine if a regulation is consonant with the 2nd Amendment, this test has its limitations. Largely because the original meaning of the 2nd amendment was largely ignored for the last century. Any traditions and regulations enacted in light of that misunderstanding are constitutionally flawed and suspect. Relying on such traditions, premised on a collective right to keep and bear arms, seems illogical and likely unconstitutional.

One related issue are bans on non-violent felons possessing firearms . See this article, “Why can’t Martha Stewart Own a Gun,” by C. Kevin Marshall which provides a lengthy discussion of the history of regulations restricting access to weapons by those convicted of crimes, before and after the Bill of Rights was adopted. It always struck me as odd that non-violent felons, because of one bad act, are forbidding forever from keeping arms at home for purposes of self defense.  From Professor Lunds’s summary of Marshall’s article

While acknowledging that this history cannot solve all line-drawing problems, Mr. Marshall makes a powerful case that the traditional understanding of the right to arms did not authorize much more than laws forbidding those convicted of crimes of violence to carry firearms outside their homes, and possibly also forbidding them to possess easily concealable weapons, at least for as long as the offender continued to present a credible threat of recidivism.

If in fact the 2nd amendment is an individual right, on equal footing with other rights in the Bill of Rights, why is it still treated as an ugly red-headed stepchild. If Congress passed a law forbidding a person who violated election law from advocating for a political cause at any point in the future, would we not pause to argue this violates the First Amendment. But if a person commits a non-violent offense (tax evasion for example), that person’s individual right to keep and bear arms is forever eliminated. Professor Lund’s article addresses this point (pp. 14-15):

“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .”32 This certainly sounds unobjectionable, at least at first. But how “longstanding” are these prohibitions? Justice Scalia either doesn’t know, or decided not to tell us. Apparently, however, the first general ban on the possession of firearms by felons was enacted in 1968.33
Longstanding? This was 177 years after the adoption of the Second Amendment, and less than a decade before the D.C. handgun ban was enacted.

Aside from the absence of historical support for the claim that such prohibitions are consistent with the preexisting right to arms, they are inconsistent with what Justice Scalia himself calls its “core,” namely self defense.34 On what understanding of that core does it make any sense to leave American citizens defenseless in their own homes for the rest of their lives on the basis of nothing more than a nonviolent felony like tax evasion
or insider trading? It would make more sense to say that the government may silence these felons for the rest of their lives regulatory crimes, after all, usually involve an abuse of speech, such as making false statements to the government or negotiating contracts that the government forbids. Such regulatory crimes have nothing at all to do with violence or the use of firearms.

It is also relevant to keep in mind the over-criminalization of our country. I have absolutely no idea how many felonies there are, but I’m pretty sure I violate at least one a day. Whereas at common law, where there were a relatively few number of felonies, today the number of infinitely larger, thus increasing the likelihood that a person will do something to foreclose his right to possess arms to defend himself at home.

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