Author Topic: Guns ruling spawns legal challenges by felons  (Read 436 times)

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Guns ruling spawns legal challenges by felons
« on: July 19, 2008, 12:44:20 PM »
Easy solution:  don't do the crime . . . .   

Jul 19, 1:24 PM EDT

Guns ruling spawns legal challenges by felons


By MARK SHERMAN
Associated Press Writer

WASHINGTON (AP) -- Twice convicted of felonies, James Francis Barton Jr. faces charges of violating a federal law barring felons from owning guns after police found seven pistols, three shotguns and five rifles at his home south of Pittsburgh.

As a defense, Barton and several other defendants in federal gun cases argue that last month's Supreme Court ruling allows them to keep loaded handguns at home for self-defense.

"Felons, such as Barton, have the need and the right to protect themselves and their families by keeping firearms in their home," says David Chontos, Barton's court-appointed lawyer.

Chontos and other criminal defense lawyers say the high court's decision means federal laws designed to keep guns out of the hands of people convicted of felonies and crimes of domestic violence are unconstitutional as long as the weapons are needed for self-defense.

So far, federal judges uniformly have agreed these restrictions are unchanged by the Supreme Court's landmark interpretation of the Second Amendment.

"The line I'm proposing, at the home, is entirely consistent" with the Supreme Court ruling, said Chontos, a lawyer in Turtle Creek, Pa. A court hearing on the issue is scheduled for late July.

The legal attacks by Chontos and other criminal defense lawyers are separate from civil lawsuits by the National Rifle Association and others challenging handgun bans in Chicago and its suburbs as well as a total ban on guns in public housing units in San Francisco.

People on both sides of the gun control issue say they expect numerous attacks against local, state and federal laws based on the high court's 5-4 ruling that struck down the District of Columbia's ban on handguns. The opinion by Justice Antonin Scalia also suggested, however, that many gun control measures could remain in place.

Denis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence, said Scalia essentially was reassuring people that the laws keeping guns from felons and people with mental illness and out of government buildings and schools would withstand challenges. But Henigan said he is not surprised by felons pressing for gun-ownership rights.

"The court has cast us into uncharted waters here. There is no question about that," Henigan said.

"There is now uncertainty where there was none before," he said. "Gun laws were routinely upheld and they were considered policy issues to be decided by legislatures."

At the Justice Department, spokesman Erik Ablin said the agency's lawyers "will continue to defend vigorously the constitutionality, under the Second Amendment, of all federal firearms laws and will respond to particular challenges in court."

Cities' outright bans on handguns probably are the most vulnerable laws following the Supreme Court ruling. Many lawyers and Second Amendment experts believe that restrictions on gun ownership in public housing also will be difficult to defend.

The question for courts will be whether the government has more power when it acts as a landlord, as it does in public housing, than in general.

"I think there's a very substantial chance that these kinds of ordinances will be struck down because they are aimed at people who have shown no reason to be viewed as untrustworthy," said Eugene Volokh, a law professor at the University of California, Los Angeles, who has written about gun rights.

San Francisco Mayor Gavin Newsom has said the city will defend the policy as good for public safety. "Is there anyone out there who really believes that we need more guns in public housing?" Newsom said when the suit was filed a day after the Supreme Court ruled on Washington's handgun ban.

In the District of Columbia, the city housing authority is considering whether its prohibition on firearms in public housing can survive the court ruling, spokeswoman Dena Michaelson said.

But Volokh and some gun rights proponents said people convicted of crimes are less likely to succeed in their challenges.

"Many felons may need self defense more than you and I, but the government has extra justification for limiting that right because they have proven themselves to be untrustworthy," Volokh said.

Judges may find it harder to resolve cases in which nonviolent criminals, particularly those whose only offense happened long ago, are charged with gun possession.

"Do you think Scooter Libby should have a gun?" asked Douglas Berman, a law professor at Ohio State University who says the ruling will complicate the work of the courts, prosecutors and police. He was referring to former White House aide I. Lewis "Scooter" Libby, who was convicted of perjury, obstruction and lying to the FBI in the CIA leak investigation.

A more plausible case for being allowed a gun might be made by someone now in his 50s or 60s who was convicted as a teenager of taking a car for a joyride, said Stephen P. Halbrook, a gun rights supporter and lawyer. "You might have a court look at that differently," Halbrook said.

The Supreme Court has a case on its calendar for the fall that could indicate whether the justices are inclined to expand their ruling.

In United States v. Hayes, the government is asking the court to reinstate a conviction for possession of a gun for someone previously convicted of a domestic violence crime. In 1994, Randy Hayes received a year of probation after pleading guilty to beating his wife.

The 4th U.S. Circuit Court of Appeals overturned the conviction because the West Virginia law Hayes violated does not specifically deal with domestic violence crimes. The question for the high court, then, is a technical one: whether the law has to include domestic violence to be used in the future to prevent someone from owning guns?

Advocates on both sides of the gun control debate will be watching closely to see whether the court's D.C. decision is relevant to the Hayes case and, if so, how.
 
http://hosted.ap.org/dynamic/stories/G/GUNS_LEGAL_CHALLENGES?refresh=1

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Re: Guns ruling spawns legal challenges by felons
« Reply #1 on: July 20, 2008, 07:56:22 AM »
Easy solution:  don't do the crime . . . .   


Chontos and other criminal defense lawyers say the high court's decision means federal laws designed to keep guns out of the hands of people convicted of felonies and crimes of domestic violence are unconstitutional as long as the weapons are needed for self-defense.


I doubt very much the lower courts will agree with the above, and ex felons be denied access to guns will hold up as "reasonable" control by state or city regs which the SCOTUS ruling upheld. Personally, there are many ex felons who have no history of violence and are ex felons for crimes that may not automatically restrict their legal access to firearms, but that's another issue.

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Re: Guns ruling spawns legal challenges by felons
« Reply #2 on: July 20, 2008, 03:40:40 PM »
I doubt very much the lower courts will agree with the above, and ex felons be denied access to guns will hold up as "reasonable" control by state or city regs which the SCOTUS ruling upheld. Personally, there are many ex felons who have no history of violence and are ex felons for crimes that may not automatically restrict their legal access to firearms, but that's another issue.

I was thinking the exact same thing. It will be interesting to watch the debate as it unfolds though.
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Re: Guns ruling spawns legal challenges by felons
« Reply #3 on: July 20, 2008, 03:52:13 PM »
I was thinking the exact same thing. It will be interesting to watch the debate as it unfolds though.

For sure. Some really interesting court battle are going to take place due to that ruling, some worthy, some not so worthy as the case above, but the SCOTUS ruling was just the beginning of this new front line on the entire 2A issue. For some scary reading, check this out:

 
http://www.gopusa.com/commentary/guest/2008/dth_07151.shtml
 
*D.C. v. Heller: The Court's Liberal Wing Shoots Itself In The Foot
*By David T. Hardy
July 15, 2008

/District of Columbia v. Heller/ was historic, the first Supreme Court
decision to clearly hold that the Second Amendment right to arms was an
individual one not linked to militia service. But it was historic for
another reason: the sheer number of mistakes made in the dissenters'
opinions. Given that all four dissenters co-signed the Stevens and
Breyer dissenting opinions, this means that the mistakes must have
escaped, not only four members of the highest court in the land, but
their sixteen research clerks!

Case in point: Justice Stevens' dissent claims that he holds true to the
Court's earlier, 1939, decision in /United States v. Miller/, which he
says involved "upholding a conviction." Even a quick read of /Miller/
shows that the Court reversed, rather than upheld, and there was no
conviction involved. The first paragraph of Miller recites that the
lower court "quashed the indictment" against him -- dismissed the case
before trial. Miller's last paragraph orders "the challenged judgment
must be reversed."

Second illustration: In discussing the militia, Stevens cites a 1990
Supreme Court decision, /Perpich v. Dodd/, and says it states "In 1901
the President revitalized the militia by creating the 'National Guard of
the several States...'"

In /Perpich/, the Court actually said that President Teddy Roosevelt in
1901 called for revitalizing the militia, but it was Congress, not the
President, that created the federal Guard... in 1903.

Stevens then turns to his central theme: "The Second Amendment was
adopted to protect the right of the people of each of the several States
to maintain a well-regulated militia."

Stevens adopts D.C.'s line. He argues that certain Americans were
concerned that Congress had exclusive power over organized and arming
the militia, but it might not enact a law requiring militiamen to be
armed, and this would "disarm" the militia system unless the States had
the power to do so: "It [the Second Amendment] was a response to
concerns raised during the ratification of the Constitution that the
power of Congress to disarm the state militias and create a national
standing army posed an intolerable threat to the sovereignty of the
several States."

Justice Stevens' theory is astonishing. This had been D.C.'s original
theory of purpose. But it had been so thoroughly demolished by amicus
briefs that D.C. abandoned it in its last briefing. The amicus briefs
for Heller's side had proven:

    1. Yes, there were Framers concerned about the militia being left
    unarmed, but they weren't pushing for what became the Second
    Amendment. They wanted a different and additional guarantee that
    "each state respectively shall have the power to provide for
    organizing, arming, and disciplining its own militia, whensoever
    Congress shall omit or neglect to provide for the same."

    2. That additional guarantee (in the above words) was put into the
    Virginia ratifying convention's demands for a bill of rights, as
    well as a provision that was the ancestor of the Second Amendment.
    They were /two separate ideas./

        3. When James Madison drafted the Bill of Rights, he worked from
        the Virginia ratifying convention's proposals. He put the Second
        Amendment in. /He omitted the separate clause/ about States
        arming the militia.

        4. When the Bill of Rights came up in the First Senate, Virginia
        senators moved to put the militia-arming clause back in. The
        first Senate /voted the idea down./

    Yes, there were Framers concerned about having States able to arm
    their militias. But they weren't calling for the Second Amendment,
    but for a different provision. And they lost.

    Did the dissenting Justices either (1) not read the Heller-side
    briefs or (2) were willing to take this position in spite of its
    having been proven utterly ahistoric?

    Justice Breyer's dissent focuses, not upon the meaning of the
    Amendment, but upon whether D.C.'s handgun ban is "reasonable
    regulation." It likewise contains a critical error.

    Breyer argues that the main purpose of the Amendment is to ensure
    military preparedness, and the D.C. law does not much impair this:
    "the only weapons that cannot be registered are sawed-off shotguns,
    machine guns, short barreled rifles, and pistols not registered
    before 1976."

    Breyer did not closely read the law he defends: D.C. defines any
    semiautomatic rifle that can take a magazine holding more than 12
    rounds (which is almost all of them) as a forbidden "machine gun."
    Its residents are thus forbidden to own and practice with the
    semiautomatic version of any American military rifle made in the
    last half-century.

    Both dissents are not merely mistaken, but (if I may be blunt)
    shoddy. Prior decisions and statutes seem to have been skimmed
    rather than researched. Historical theories that were clearly
    disproven are invoked as fact. The logical conclusion is that the
    dissenters cared not so much about constitutional law as about
    policy, and what they find good policy simply had to be constitutional.

    And they came within one vote....  ::) :o ::)