Monday, August 3, 2009

Tenth Circuit judge questions Heller language

Apparently, a federal appeals court judge on the Tenth Circuit, in a concurring opinion, has questioned dicta in Justice Scalia's Supreme Court Heller ruling relating to the ban on felons possessing firearms:
The Tenth Circuit case involved an individual in Oklahoma City who was arrested in 2007 while driving with a suspended driver’s license. During the search of the car, the police found a loaded firearm. The defendant was charged with the federal crime of being a felon in possession of a firearm, described by Scotusblog as “a specific crime that the Heller dictum would seem to have left unaffected by the Second Amendment declaration of a personal right of self-defense with a gun.”

The Tenth Circuit upheld the possession conviction, rejecting the defendant’s Heller-based argument, relying heavily on Justice Scalia’s dicta.

In any event, Judge Tymkovich called into question this language in his concurrence on Tuesday.

“I write,” wrote Tymkovich, to express concern that the dictum inhibits lower courts from exploring the contours of Heller and its application to firearm restrictions.”

Tymkovich continues:
Knowing the meaning of the Second Amendment right and having identified its individual nature, the issue becomes what limits the government may place on the right. Indeed, this is where the Second Amendment rubber meets the road. The restrictive firearm ownership and licensing laws at issue in Heller violated the right, the Court found. . . . But what about other laws? For example, the broad scope of [the felony possession law] which permanently disqualifies all felons from possessing firearms—would conflict with the “core” self-defense right embodied in the Second Amendment. Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons. [emphasis added]

. . .

Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court’s clear direction, this is perhaps how it should be. After all, “our job as a federal appellate court is to follow the Supreme Court’s directions, not pick and choose among them as if ordering from a menu.” . . . I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.

Article here. Given the vast proliferation of felony crimes under federal and state laws, many, perhaps most of which don't involve violence of any kind, it seems ridiculous for the law to restrict a fundamental human right to those who have been convicted of a non-violent crime, and who have served and completed their sentences in full, including any probationary periods.

Heck, even those who have been convicted of violent crimes, who have similarly paid their debt to society and completed their sentences in full, probably ought not to lose their firearms rights forever. Felons who wish to commit further crimes of violence can obtain and possess guns, sometimes quite easily, despite the law banning such possession -- that follows from their not wishing to obey the law, coupled with the wide availability of what is an otherwise legal and useful product that is integral to the exercise of a constitutionally-protected fundamental human right.

For those felons who wish to reform their lives after completing their sentences, however, that is, those who desire to lead a law-abiding life after their release and completion of sentence, does it make sense for the law to continue to restrict their fundamental right to self-defense?

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