Posted by Eugene Volokh:
The First (?) Post-*Heller* Case Holding a Gun Control Law Unconstitutional:
http://volokh.com/archives/archive_2009_01_11-2009_01_17.shtml#1231712651
That's [1]U.S. v. Arzberger. The gun control law is the part of [2]18
U.S.C. � 3142(c)(1)(B) that requires that when someone is charged with
possessing child pornography (among other crimes) and is freed on
bail, he be ordered not to possess any firearm. Here's the discussion
by Magistrate Judge James C. Francis IV (of the Southern District of
New York) (some paragraph breaks added):
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].
And, although the Supreme Court has indicated that this privilege
may be withdrawn from some groups of persons such as convicted
felons, there is no basis for categorically depriving persons who
are merely accused of certain crimes of the right to legal
possession of a firearm.
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." The remaining
Mathews factors play out much as they did in the analysis of the
curfew requirement.
First, there is a serious risk that, in the absence of an
individualized determination, an accused person will wrongly be
deprived of his Second Amendment rights. Indeed, the Government may
well find it difficult to articulate a nexus between an accusation
of receiving child pornography and the need to prohibit possession
of a firearm. Second, providing the defendant with an opportunity
to be heard with respect to the appropriateness of this condition
would reduce the potential error rate without creating a
significant burden. And, finally, the Government's interest in
ensuring the safety of the community would not be undermined by
requiring an independent judicial determination of the danger
caused by the defendant and the efficacy of the proposed bail
condition.
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....
[Footnote:] The determination that the mandatory imposition of each
of the conditions requested by the Government violates procedural
due process does not preclude the Government from renewing its
application provided that it is prepared to proffer a basis for
requiring any or all of these conditions in Mr. Arzberger's
particular circumstances.
This is formally a Due Process Clause holding, but it rests on a
conclusion about the Second Amendment. Recall that the Due Process
Clause (sometimes) entitles people to hearings only when there's a
legally relevant factual dispute to be resolved. Persons "[3]who
assert a right to a hearing under the Due Process Clause must show
that the facts they seek to establish in that hearing are relevant
under the statutory scheme," or are made relevant by the Constitution.
If Congress were constitutionally allowed to ban all gun possession by
people who have been indicted for possessing child pornography,
whether or not those people are found to pose a special risk of gun
violence, then no hearing would be required. That's why the excerpt I
quoted begins with the sentence "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 Congress could categorically do this, then
there'd be no factual issue to resolve at the hearing. All the
evidence in the world that this person is unlikely to pose a danger of
gun violence will be irrelevant under the statutory/constitutional
scheme.
The hearing is required only because at least some such indictees
still have the "constitutionally protected" "right to possess a
firearm" -- presumably those indictees as to whom "such a [no
firearms] condition is reasonably necessary in [their] case[s] to
secure the safety of the community," which is to say those who don't
pose any special risk of misusing their guns. (I say "special risk"
because obviously just the general risk that any gun owner may misuse
his guns can't be enough: If it were, no hearing would be needed,
since such a risk is present for everyone.)
In any case, this is an important decision, though just from a
magistrate judge. For other cases in which the Second Amendment has
been relied on in a claimant's favor, see [4]here, [5]here, and
[6]here. But none of these cases involved a holding that a gun control
law was unconstitutional, even as applied to a particular claimant.
For other views on gun possession by indictees, see State v.
Winkelman, 442 N.E.2d 811 (Ohio Ct. App. 1981) (upholding a
categorical ban on gun possession by indictees, though noting that it
imposes only a �temporary limitation,� with provision for relief
�[s]hould the temporary limitation work an undue hardship upon the
indicted party�), overruled on other grounds, State v. Frederick, 1989
WL 80493 (Ohio Ct. App.); State v. In, 18 P.3d 500, 503 (Utah. Ct.
App. 2000) (also stating that such a ban is constitutional, but
without a detailed explanation). Compare State v. Spiers, 79 P.3d 30,
34-35 (Wash. Ct. App. 2003) (ambiguous on whether a categorical ban on
gun possession by certain kinds of indictees was constitutional, or on
whether such a ban was constitutional when there was a finding that
the indictee �poses substantial danger�).
References
1. http://www.volokh.com/files/arzberger.pdf
2. http://www.law.cornell.edu/uscode/18/3142.html
3. http://supreme.justia.com/us/538/1/case.html
4. http://volokh.com/posts/1228944875.shtml
5. http://volokh.com/posts/1228944875.shtml
6. http://volokh.com/posts/1218479907.shtml
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