Felon sues over gun rights, citing Heller.

[CCWInstructor]

Local lawsuit tests high court's ruling that lifts D.C. gun ban

Local lawsuit tests high court's ruling that lifts D.C. gun ban
Sunday, July 13, 2008
By Paula Reed Ward, Pittsburgh Post-Gazette

A Washington County man charged in federal court with being a felon in possession of a handgun has filed a motion asking that the charges be dismissed based on a recent Supreme Court decision.

James F. Barton Jr. argues that the court's opinion lifting the ban on handguns in Washington, D.C. -- and the assertion that the possession of guns in the home is an individual right -- must be applied to all people.

Senior U.S. District Judge Alan N. Bloch has scheduled a July 31 hearing on the matter .

On its face, Mr. Barton's argument appears to have no merit because the majority opinion of the Supreme Court in District of Columbia v. Heller specifically noted: "[Nothing] in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ... ."

But it's precisely because of that language that attorney David B. Chontos, who represents Mr. Barton, filed his motion to dismiss.

Several legal scholars agree that th e instruction in the opinion is nothing but dictum, merely a statement by the court that is not binding as a precedent in lower courts or for the future Supreme Court.

But Mr. Chontos based his argument on language included in the Second Amendment, which reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Mr. Chontos argues that the phrase "the people," must mean the same as it does in other amendments, including the First, which guarantees free speech and freedom of religion, and the Fourth, which guarantees privacy and the right to be free from unreasonable search and seizure.

"Despite having a conviction history, Barton still has a right to free speech. He still has the right to exercise whatever religion he wants to," Mr. Chontos wrote. "Our Supreme Court has not even come close to saying that, once you are convicted of a federally defined felony, you can not assert a Fourth Amendment right.

"Heller holds that 'all Americans' have an 'individual right to use arms for self-defense.' This right is non existent, however, to Barton because a statute of Congress eliminates his ability to protect himself and his family through the possession and use of firearms in his home."

But legal scholars argue that all constitutional rights are not guaranteed.

Just as a person can't yell "Fire!" in a crowded theater, there can be some regulation on firearms, as well.

Duquesne University law professor Kenneth Gormley called Mr. Chontos' argument "a manufactured" one.

"There are lots of individual rights that come with limitations," he said.

By committing a crime, the felon has forfeited a number of rights, including the right to serve on a jury and to vote, as well as the right to own a firearm, he said.

Mr. Barton, 48, was convicted in 1995 of receiving stolen property -- which was a firearm -- and possession of a controlled substance with intent to deliver in Washington County.

In May 2007, investigators searching his home found 15 firearms -- seven pistols, three shotguns and five rifles -- as well as ammunition.

Mr. Chontos concedes that his client may not be the most sympathetic defendant to use as a test subject, but his argument remains the same.

"I firmly believe your home is your castle, and you should be allowed to defend yourself if an intruder comes in to do harm to you or your family," he said. "I think the key dividing line is the home. What you do in your home is far different from what you do in public."

Legal blogs have been paying close attention to this issue, he said.

Douglas Berman, a law professor at Ohio State University, runs the blog "Sentencing Law and Policy."

He believes that if you take the right of self-defense in the home established by the Supreme Court at face value, then the felon-in-possession law seems suspect.

"Courts are going to have to sort through issues that no one gave serious thought to," he said. "If we think this is an important right, it deserves constitutional treatment on par with other rights."

The majority opinion recognized that there have to be some restrictions on firearms, Mr. Berman said, but clearly an outright ban is not permissible.

The types of regulation cited in the opinion include felon-in-possession laws, as well as the prohibitions against carrying a firearm in a school or government building, and the qualifications required to purchase guns.

Mr. Berman went on to say that even though the felon-in-possession law is broad, those are the types of crimes for which prosecutors should use their discretion.

He described them as "the low-hanging fruit." Felon-in-possession laws are seen as very quick and easy cases to prove.

In the Western District of Pennsylvania, the number of felon-in-possession charges have gone from 19 in 2003 to 90 in 2007.

U.S. Attorney Mary Beth Buchanan said the people in this district who are charged with being a felon in possession are those who have significant and recent criminal histories.

Though she said the federal law prohibiting felons from possessing firearms doesn't differentiate between offenders, significant and recent criminal histories are just two of the criteria her office uses when meeting with local and state law enforcement to see if a case should be prosecuted federally.

"We've charged offenders with recent convictions or past convictions of a very serious and violent nature," she said.

Mr. Gormley expects with the recent Supreme Court decision that thousands of defense attorneys across the country will file motions similar to Mr. Barton's to test the issue.

But he also believes the dictum in the court's decision will win the day.

"The fact is, it's in the opinion, and lawyers and judges are going to think this is clearly what the court intended," he said. "It's going to have an impact."
Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.
First published on July 13, 2008 at 12:00 am

[spc]

It had to happen sooner or later. Looks as if things are starting to move already on cases like these.

It will be interesting how many more case filings of all kinds occur real soon.

spc

[Bombard]

Originally Posted by spc

It had to happen sooner or later. Looks as if things are starting to move already on cases like these.

It will be interesting how many more case filings of all kinds occur real soon.

Yep. A little sooner than I expected, but inevitable.

[spc]

+1

spc

[THE Gimper]

I will say this, regardless of the merits (or lack thereof) of this case, this statement:

By committing a crime, the felon has forfeited a number of rights, including the right to serve on a jury and to vote, as well as the right to own a firearm, he said.

fails to recognize the difference in rights. The rights protected under the Bill of Rights were those that are fundamental right. The preexisted the Constitution, and are not in any way dependent upon the Constitution for their existence and legitimacy. Rights like voting and serving on a jury, are not fundamental rights, and are dependent upon the Constitution for their existence. The Constitution grants those rights.

[FiringLion]

By gut, I'm with THE ("evil genius") Gimper on this one, and 'spect that's how it will be arranged eventually.

The question it raises for me relates to the various heights of different fruits, and by what exact criterion is too high to pick guaranteed. My concern here is the slimy slope that might permit the continuation of our de facto "maybe, if you're good and we like you" rights.

To be clear, I've always understood A2 as the instrument that acknowledges the people's preexisting right to keep and bear arms.
Grammatically, the initial clause is the operative part, implying by association with the later rights statement that, while a regulation of arms might occur as a necessity for state security, such infringement shall not extend beyond that of regulating militias.

[FiringLion]

Regulation of people's rights to keep and bear arms outside of the context of a state-securing militia simply isn't in the A2 sentence.

[RomanDad]

Originally Posted by THE Gimper

I will say this, regardless of the merits (or lack thereof) of this case, this statement:



fails to recognize the difference in rights. The rights protected under the Bill of Rights were those that are fundamental right. The preexisted the Constitution, and are not in any way dependent upon the Constitution for their existence and legitimacy. Rights like voting and serving on a jury, are not fundamental rights, and are dependent upon the Constitution for their existence. The Constitution grants those rights.

True.... HOWEVER.... The right to LIFE is a fundamental right and pre-exists the constitution, and the state can take it if youre a felon... The right to FREEDOM pre-exists the Constitution and it can be taken if youre a felon.... The right to speech pre-exists the constitution and we have on rare occasions said that terrorist masterminds, no longer get to communicate to the outside world....

The test always comes down to "Which level of Constitutional scrutiny do we apply" and "When we do, what answer do we get?" How legitimate is the state interest, and how narrow is it to prevent the harm?

I think regulating FELONS in possession of firearms (at least VIOLENT FELONS, and perhaps ALL felons) is going to be upheld regardless of the level of scrutiny.

"The Constitution is not a suicide pact".

[Harry Carry]

Originally Posted by RomanDad

True.... HOWEVER.... The right to LIFE is a fundamental right and pre-exists the constitution, and the state can take it if youre a felon... The right to FREEDOM pre-exists the Constitution and it can be taken if youre a felon....

The test always comes down to "Which level of Constitutional scrutiny do we apply" and "When we do, what answer do we get?"

I think regulating FELONS in possession of firearms (at least VIOLENT FELONS) is going to be upheld regardless of the level of scrutiny.

Scalia specifically mentioned prohibited persons, yes?

[Justaguy]

Originally Posted by RomanDad

think regulating FELONS in possession of firearms (at least VIOLENT FELONS, and perhaps ALL felons) is going to be upheld regardless of the level of scrutiny.

Common sense says, "I hope so".

[RomanDad]

Originally Posted by Harry Carry

Scalia specifically mentioned prohibited persons, yes?

yup

[THE Gimper]

Originally Posted by RomanDad

True.... HOWEVER.... The right to LIFE is a fundamental right and pre-exists the constitution, and the state can take it if youre a felon... The right to FREEDOM pre-exists the Constitution and it can be taken if youre a felon.... The right to speech pre-exists the constitution and we have on rare occasions said that terrorist masterminds, no longer get to communicate to the outside world....

The test always comes down to "Which level of Constitutional scrutiny do we apply" and "When we do, what answer do we get?" How legitimate is the state interest, and how narrow is it to prevent the harm?

I think regulating FELONS in possession of firearms (at least VIOLENT FELONS, and perhaps ALL felons) is going to be upheld regardless of the level of scrutiny.

"The Constitution is not a suicide pact".

I bow to my better.

[NikNak]

Somebody is wasting allot of $s on this one ....

No way to buck Scalia on this one ..... IMHO

[Bombard]

Originally Posted by NikNak

Somebody is wasting allot of $s on this one ....

No way to buck Scalia on this one ..... IMHO

It's a hail Mary pass. The felon has nothing to lose and everything to gain. I'm not sure how much he'd actually be paying to the lawyer - he's probably court appointed.

[DVSmith]

Originally Posted by RomanDad

"The Constitution is not a suicide pact".

Another priceless soundbite from RD!!!!