December 3, 2011
Ban on Receiving Guns Withstands Second Amendment Challenge
Judge Jack Weinstein (E.D.N.Y.) yesterday rejected a claim that the federal law criminalizing the receipt of a firearm in interstate commerce violates the Second Amendment. The case, U.S. v. Laurent, arises out of an indictment under 18 U.S.C. Section 922(n), which says:
It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Laurent's indictment was for receiving a firearm in violation of Section 922(n). He challenged that provision on its face under the Second Amendment, among others.
Judge Weinstein wrote that intermediate scrutiny is appropriate:
The Supreme Court has indicated that some form of heightened scrutiny is necessary when the conduct at issue falls within the core of the Second Amendment right to bear arms for the purpose of self defense in the home. [Heller] As already noted, most courts of appeals have found that regulations which substantially burden the right to keep and to bear arms for the purpose of self-defense should receive intermediate scrutiny. By contrast, laws that do not substantially burden the right to keep and to bear arms for this purpose are not entitled to any level of heightened scrutiny.
Judge Weinstein ruled that Section 922(n) imposes a substantial burden, but satisfies intermediate scrutiny:
The prohibition at issue in this case is less restrictive than other subsections of 18 U.S.C. Section 922, which totally ban possession by particular categories of people, such as felons or misdemeanants convicted of domestic violence. They have survived intermediate scrutiny.
Concededly, given the presumption of innocence, the government's categorical presumption that all individuals under indictment for a felony are more likely to misuse firearms is somewhat suspect. Congress appears to have determined, however, that a narrower ban would not serve its interest in public safety. Initially, Congress only limited receipt of firearms by violent indictees. After three decades of experience, it saw the need to expand the prohibition to all indictees.
As demonstrated by the facts of this case, it cannot be said that Congress' determination to criminalize the act of receiving a firearm while under indictment was unreasonable, and that "no set of circumstances . . . under which [the statute] would be valid." Laurent was initially indicted in state court for crimes arising out of gun play in a residential building. He was subsequently arrested after allegedly robbing another individual at gun point. The fact that Laurent was charged with the instant crime because he apparently committed a crime of violence while under indictment undermines any claim that he might have that Section 922(n) is not substantially related to preventing him from engaging in further violence. He is hardly the law-abiding householder with a gun at home to protect his family. The statute is thus also not unconstitutional as applied to this defendant.
The fact that Laurent may eventually plead to a misdemeanor is not of statutory or constitutional significance. The crime is committed when the firearm is obtained while the defendant is under a felony indictment; dismissal, acquittal, or conviction does not affect that fact. So long as the government can show that he was under indictment for a felony at the time he received a firearm, he may be convicted under Section 922(n).
Because the statute is substantially and directly related to the important government interest in public safety, it survives intermediate scrutiny under the Second Amendment.
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If the Second Amendment created a personal right to possess firearms, that right would certainly be fundamental, as are the other explicitly protected rights in the Bill of Rights, such as religion and speech. What is the theoretical justification for applying intermediate scrutiny to a fundamental right? Is "not possessing a gun for self defense" or "being an indicted person" the equivalent of "content-neutral" as to speech? Since content neutrality supposedly reduces the threat the government regulation presents to the fundamental right, the facts in this case do not appear analogous.
Posted by: Jeffrey G. Purvis | Dec 4, 2011 9:14:23 AM