Recently in Firearms Category
The ACCA has a "three strikes" provision for violent felony priors, defined as a crime punished by over a year in prison that :
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; orWhat the heck does that last part mean? That's the problem. Criminal laws need to be more clear than that, the majority says. The rest of the law remains in force.
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another
The case is Johnson v. United States, No. 13-7120. Justices Kennedy and Thomas concur in the judgment overturning Johnson's sentence by applying rather than invalidating the statute. That is, they believe the statute is constitutional but that possessing a short-barreled shotgun is not a violent felony under the statute. Justice Alito dissents.
No Glossip today. From a press coverage viewpoint, that's just as well, as the decision in a civil case will suck all the oxygen out of the room. The Court has informed the press that Monday is the last day of the term, so we will definitely have a decision then.
The panel reversed the district court's summary judgment and held that a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.Ashby Jones has this article in the WSJ. The court has this case page. The oral argument is here.
Plaintiffs challenged a County of San Diego policy which interpreted California's restriction on carrying handguns in public. California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations, absent the showing of, among other things, good cause. Under San Diego's policy, concern for one's personal safety alone is not considered good cause.
People in the nation's capital no longer have to show a good reason to get a permit to carry concealed handguns outside their homes and businesses.
The District of Columbia's police chief said Tuesday that she's dropping this requirement, a centerpiece of the city's handgun-control legislation, after a federal judge issued a preliminary injunction against it.
How about being in a jurisdiction where the murder rate is many times higher than the national average and among the highest of all American cities? Doesn't everyone in the District have a "good reason"?
Today's criminal law argument has to do with the disposition of firearms seized from a defendant when the criminal case is over and the now-convicted defendant can no longer legally possess them: Henderson v. United States, No. 13-1487.
Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala. The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus. If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.
Los Angeles v. Patel, No. 13-1175: Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can? There are a lot of heavily regulated industries that have such requirements. The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example. No warrant or particularized basis of suspicion required. How about hotels?
Henderson v. United States, No. 13-1487: What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?
At a news conference, Sgt. Jeremy Lewis of the Police Department in Moore, near Oklahoma City, said the suspect in the stabbing spree, Alton Nolen, began attacking workers at random after he was fired from his job at the city's Vaughan Foods Inc. processing plant around 4:05 p.m. local time on Thursday.
When police arrived, two women in the plant's front office area had been attacked and Mr. Nolen, 30, lay wounded from gunshots, Sgt. Lewis said. One of the women, Colleen Hufford, 54, was decapitated. "He did kill Colleen and did sever her head," Sgt. Lewis said.
Police determined that as Mr. Nolen attacked the second victim, Traci Johnson, 43, he was confronted and shot by the chief operating officer of Vaughan Foods, Mark Vaughan, who is a reserve Oklahoma County sheriff's deputy, Sgt. Lewis said. "This off-duty deputy definitely saved Traci's life," he said, describing Mr. Vaughan as a hero. "This was not going to stop if he didn't stop it."
I come back to a city in crisis, as the gun violence and murder rates from the summer have dwarfed, in historic proportions, the rates from the previous summer and the past several summers.
What about the Second Amendment?
Finally, Castleman suggests--in a single paragraph--that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.Now there's a public spanking for an inadequate argument, but no precedent on the Second Amendment question.
For today's oral argument session, the Court is hearing Wood v. Moss. Aside from its interesting name (placing it in a category with the famous Plough v. Fields and Silver v. Gold) the case is about qualified immunity for Secret Service agents who were sued for thinking that demonstrators against the President just might pose a greater threat than demonstrators for him and acting accordingly.
Update: Adam Liptak has this article in the NYT on the argument, noting that some of the justices urged the lawyer for the government to take a bolder position than the one he was taking.
We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.* * *An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope--that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety--including its use of a firearm.
The San Diego Sheriff announced he would not seek rehearing en banc. The California Attorney General has now moved to intervene and petitioned for rehearing en banc.
In my view, the AG is entirely correct to do this regardless of where one stands on the underlying question. The proper operation of our system of separation of powers requires a defense of statutes when they are challenged judicially, and it is the Attorney General's duty to make that defense as long as one can reasonably be made. It is dereliction of duty for AGs to refuse to defend statutes merely because they agree with the plaintiffs on close questions of constitutional law or, even worse, merely because they oppose the policy behind the statute. The United States Attorney General notoriously failed to defend the anti-Miranda statute in the Dickerson case back in 1999. That was very wrong, even though the case ultimately ended with the statute being struck down.
In this case, I have no doubt that Ms. Harris supports the policy behind the statute, so the disagreement issue is not presented. However, I expect she will be criticized for defending it, so I wanted to state up front that her decision to make the case for the statute's constitutionality is correct, in my view.
Oh, BTW, the case is a slam dunk for rehearing en banc.
There was one exception to the denials-later practice today. The Court turned down the case of Florida murderer Marshall Gore. As noted in the prior post, Gore's claim of mental incompetence has been found to be "patently a fabrication." He is scheduled for execution today.
The other capital cases will probably be denied Monday, although one or more might be "relisted" to be considered again at a future conference.
The case of a traffic stop based on an anonymous call is described in a separate post.
The Court also took up the case of United States v. Castleman, No. 12-1371, another variation on the federal statute barring gun possession by people with certain convictions, in this case a "misdemeanor crime of domestic violence." This appears to be a pure statutory interpretation argument, not involving the constitutional question of whether Congress has the authority to micromanage who is allowed to possess a gun.
Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.
The Montana Legislature passed the Montana Firearms Freedom Act ("MFFA" or "the Act"), which declares that a firearm or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words "Made in Montana" be "clearly stamped on a central metallic part." Id. § 30-20-106.Will that dog hunt? No.