... and Justice for All

"Extreme judicial malfunction" by Ohio state courts, Sixth Circuit grants writ of habeas corpus

"This case is the epitome of ... an extreme judicial malfunction." This the Sixth Circuit observes on its way to granting a writ of habeas corpus in Jackson v. Cool. The Sixth Circuit summarized the proceedings as follows:

Petitioner Nathaniel Jackson was convicted of a capital offense and sentenced to death. But Jackson’s sentencing proceeding was blatantly unconstitutional at its core due to the trialcourt judge’s bias and misconduct, as well as his exclusion at sentencing of relevant mitigating evidence. The prejudicial judicial bias and misconduct included numerous ex parte communications between the judge and prosecutor regarding substantive sentencing issues and the ghost writing by the prosecutor of the judge’s opinion sentencing Jackson to death. In state court, when this unethical conduct came to light, the Ohio appellate courts publicly reprimanded the trial judge and ordered him to conduct new sentencing proceedings: the judge was to
“personally review and evaluate the appropriateness of the death penalty” and “prepare an entirely new sentencing entry.”

On remand, Jackson moved to present three additional volumes of mitigating evidence. The trial judge denied the motion, and he orally resentenced Jackson based on the stale, ten-yearold mitigation record. A few hours after the resentencing hearing concluded, the judge issued a second opinion sentencing Jackson to death that was functionally identical to the original, corrupted opinion and contrary to the Ohio Court of Appeals’ specific instructions on remand. Nevertheless, the Ohio appellate courts affirmed Jackson’s sentence.

That mild description is a benign near-whitewash of the ugly breakdown of the Ohio state court system including its state Supreme Court. 

A bad crime started the case. Nathaniel Jackson and Donna Roberts conspired to kill Roberts's ex-husband. They left a trail of evidence and were quickly apprehended. They were separately indicted and tried on capital murder charges. The juries in both trials recommended the death penalty and Trumbull County Court of Common Pleas Judge John M. Stuard followed those recommendations and imposed the death penalty for both. And here the judical malfunction starts.

Roberts' death sentence was vacated by the Ohio Supreme Court "due to Judge Stuard's ex parte use of the prosecutor in preparing Roberts's sentencing opinion." "Judge Stuard conceded that he had engaged in ex parte communications with the prosecution in drafting the sentencing opinion -- apparently, Judge Stuard had given notes to the prosecutor outlining the sentence to be imposed with supporting reasons and tasked the prosecutor with drafting the opinion and making revisions." 

Jackson learned of the irregularities in Roberts's case and himself moved for new sentencing proceedings and Judge Stuard's disqualification. Ohio Supreme Court Chief Justice Thomas Moyer refused to disqualify Judge Stuard, asserting, in what is an instance of wilfull blindness, "[t]here is no evidence in the record before me, ...., to suggest that the judge has shown any hostility or bias toward either party, and there is no indication that he is unable or unwilling to resolve any remaining disputed matters with an open state of mind." In re Disqualification of Stuard, 863 N.E.2d 636 (Ohio 2006). 

Jackson's motion for a new sentencing hearing remained pending before Judge Stuard for over three years. Notwithstanding the decision by its chief justice, Thomas Moyer, not to disqualify Judge Stuard, the full court, in an unsigned per curiam opinion, "pubicly reprimanded Judge Stuard for violating two canons of Ohio's code of judicial conduct based on his ex parte communications with the prosecution[.]" Disciplinary Counsel v. Stuard, 901 N.E.2d 788 (Ohio 2009). 

A couple months after being publicly reprimanded for his handling of Jackson's case and sentencing, Judge Stuard denied Jackson's motion for a new sentencing hearing. That decision was reversed. State v. Jackson, 941 N.E.2d 1221 (Ohio Ct. App. 2010). Two years later, Judge Stuard again sentenced Jackson to death after a hearing in which he refused to allow Jackson to put in evidence "three volumes of mitigating evidence that he had not proffered at his first sentencing hearing." Only a few hours after the second sentencing hearing, Judge Stuard issued his sentencing opinion, one which "[a]part from adding some introductory paragraphs explaining the additional procedural history, making minor typographical and grammatical changes, and rewriting a few paragraphs describing the trial evidence, ... was 'almost identical' to the first." Nevertheless, the Ohio Supreme Court upheld the death sentence, ruling that Judge Stuard was not biased, did not err in failing to consider Jackson's allocution at the sentencing hearing and did not err in barring from evidence the proffered mitigation evidence. 73 N.E.3d 414.

The Sixth Circuit found the evidence of Judge Stuard's bias to be compelling, observing in part as follows:

... Judge Stuard secretly recruited the prosecutor to draft the entirety of an opinion sentencing Jackson to death: he left the prosecutor to turn his two pages of incomplete, handwritten notes into a twelve-page opinion outlining the facts and procedural history, weighing the aggravating and mitigating factors (while characterizing Jackson's mitigating evidence as "self-serving," "not convincing," and "lacking sincerity"), and ultimately imposing the death penalty. Although "ex parte contact is not, in itself, evidence any kind of bias," it is hard to imagine a more "extreme" case of bias from ex parte contact then this one.

And Judge Stuard's conduct evidencing bias did not stop there. After his improper ex parte contacts came to light, he refused to accept responsibility, stating that he did "nothing wrong." During his disciplinary proceedings, Judge Stuard downplayed his conduct by claiming that the prosecution was simply performing a ministerial task and purportedly gained no tactical advantage from writing the opinion.

... And at [Jackson's second sentencing] hearing, he took the time to express his disagreement for the need to hold a rate sentencing hearing, claiming that the higher courts "misunderstood what occurred" but that he was nonetheless required to abide by the rulings.

...

... After his unethical behavior was exposed, he delayed Jackson's resentencing; decline to accept responsibility for his impropriety; and refused to issue an untainted, personally crafted sentencing opinion. Judge Stuard could impose the death penalty, but he could not be bothered to draft an opinion explaining why. These actions show a "deep-seated" favoritism toward the prosecution and antagonism toward Jackson, "making fair judgment impossible"

The failures of the Ohio state court system did not end there. The Sixth Circuit engaged in an extended discussion of case law regarding a capital defendants clearly-established right to present any and all mitigating evidence including at a subsequent sentencing hearing evidence that had not previously been available. The Sixth Circuit framed the question as follows:

In light of this clearly established federal law, the question then becomes whether the Ohio Supreme Court's decision affirming the trial court's exclusion of additional mitigating evidence at Jackson's resentencing was an unreasonable application of, or contrary to, this clearly established law. Unquestionably, the answer is yes.

The case does show extreme judicial malfunction. Jackson's crime was a terrible crime. The trial court judge, Judge Stuard, who retired in 2013 shortly after Jackson's second sentencing hearing, could not be bothered to do his job properly, perhaps because he was so disgusted and appalled by the crime or perhaps because he should already have retired. But he was given a second chance to do it right, and it appears went out of his way not to do so. The Ohio Supreme Court then through egg on its own face by choosing to ignore these breakdowns in the lower courts. As the Sixth Circuit observed, "this case is the epitome of ... an extreme judicial malfunction."

Robert L. Abell
www.RobertAbellLaw.com

 

Sentence in Gun Case Too High and Substantively Unreasonable

Defendant Erich Storck was found guilty by a jury of two counts of unlawful possession of a firearm because of a prior felony conviction and possession of a small quantity of marijuana. He had offered to plead to these charges prior to trial, but the government refused, a decision that wasted much time and judicial resources, because it wanted to go forward on a greater charge of possession of marijuana with intent to distribute and possession of a firearm in furtherance of that drug trafficking felony.

Storck, however, bore the brunt of the government’s obtuseness. Although the applicable sentencing range under the United States Sentencing Guidelines was only 51-63 months, Chief Judge Danny C. Reeves of the Eastern District of Kentucky imposed a sentence of 120 months. Finding this upward variance unjustified and substantively unreasonable, the Sixth Circuit vacated Storck’s sentence and remanded for resentencing. United States v. Storck, No. 23-5684 (May 16, 2024).

Storck got in a lot of trouble as a young man and racked up assault convictions in 1994, 2000 and 2001. He straightened up after that, however, for about 18 years until sustaining in 2019 a conviction for violating the terms of the no contact order. The record indicated that Storck had become overburdened, from time to time, by mental health issues, and had resorted to drug use which produced erratic and, at times, violent behavior.

The genesis of the case was in May 2020. Then Storck was found asleep next to his motorcycle and subsequently failed a field sobriety tests. A loaded pistol was found in his motorcycle. About 18 months later, Storck holed up in an upstairs bathroom closet of his residence, fired some shots through the upstairs window of the house next door, then had a standoff with the police for an hour or so during which he fired off approximately 35 additional rounds. Once police entered the residence they found two firearms, ammunition marijuana and marijuana growing materials.

The Sixth Circuit determined that the 120-month sentence imposed by the district court was substantively unreasonable. First, the court, while referencing sentencing statistical data compiled by the sentencing commission, concluded that Storck’s was a mine-him run case, one residing in the guidelines’ heartland. Second, the court concluded that the district court had “unduly weighed Storck’s history and characteristics, the nature of the offense, and the needs for specific deterrence.” Furthermore, the district court erred by allowing too little consideration of the need to avoid unwarranted disparities among defendants with similar records who have been found guilty of similar conduct. Storck’s criminal history was already accounted for in the guidelines, including the 18 year gap between convictions. His base offense level had been increased four levels because he had fired into the adjoining house. Accordingly, “the guidelines account for those aggravating factors.” Storck’s medical history does not justify such an extreme variance, since he had remained sober and the good standing from 2002 to 2019. The case was remanded for resentencing.

Robert L. Abell
www.RobertAbellLaw.com

Five-time convicted felon has Second Amendment right to carry a gun, Ninth Circuit rules

A five-time convicted felon retains his Second Amendment right to possess a firearm according to the Supreme Court's ruling in New York St. Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), the Ninth Circuit ruled recently in United States v. Duarte, No. 22-50048 (May 9, 2024). The defendant's prior convictions were for vandalism, felon in possession of a firearm, possession of a controlled substance, and two convictions for evading a police officer. The ruling vacated the defendant's conviction under federal law for felon in possession of a firearm under 18 U.S.C. § 922(g)(1). 

The Ninth Circuit applied a “two-step [analytical] framework” derived from New York St. Rifle & Pistol Ass’n v. Bruen, “to reconsider § 922(g)(1)’s constitutionality[.]” .

First, the court held that the defendant is among “the people” covered by the Second Amendment. This was because “he is an American citizen[,]” and because the Supreme Court “resolved this textual question when it held that ‘the people’ includes ‘all Americans’ because they fall squarely within our ‘national community.’” Quoting District of Columbia v. Heller, 554 U.S. 570, 580-81 (2008).

Second, the court held that the government had not identified “‘a well-established and representative historical analogue’ to § 922(g)(1)” justifying its application to the defendant. This entailed a how and why analysis regarding whether the proposed historical analogues “‘impose a comparable burden on the right of armed self-defense’ (Bruen’s ‘how’) that was ‘comparably justified’ (Bruen’s ‘why’) as compared to § 922(g)(1)[.]” Slip op. at 34, quoting Bruen, 597 U.S. at 29. A “distinctly similar” historical analogue is necessary since § 922(g)(1) “takes aim at ‘[ ] gun violence’ generally,” a problem persisting since the 18^th century. Slip op. at 35, quoting Bruen, 597 U.S. at 26-27.

The government’s proposed historical analogues -- draft proposals considered by several state constitutional ratification conventions; colonial and early American laws that disarmed British loyalists, Catholics, Indians, and Blacks; and laws declaring miscellaneous offenses as either capital crimes or ones that resulted in civil forfeiture -- did not meet this test. Slip op. at 34-59.

Finally, the court concluded that the defendant’s felony convictions were not “by Founding era standards [] of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.” Id. at 62-63.

This case is the second in which a federal appeals court has ruled that the Second Amendment does not permit the disarming of convicted felons. Last year, the Third Circuit so ruled in Range v. Attorney General. 

The Sixth Circuit has pending before it several cases that present the question of whether the Second Amendment prohibits a convicted felon's prosecution under 18 U.S.C. § 922(g)(1): United States v. Christopher Goins was argued on March 21, 2024. Robert L. Abell represents Goins; read here the Brief and the Reply Brief filed on behalf of Christopher Goins. 

Robert L. Abell
www.RobertAbellLaw.com

 

"there exists a threat to the integrity of the judicial proceedings" and that threat is posed by Donald Trump

As the felony criminal trial of Donald Trump approaches he found it necessary to try and intimidate the judge by attacking on social media the judge's daugther including posting photos. There's no defending that kind of conduct, and the arguments offered by Trump's lawyers were properly labeled as "farcical." Trump's point is to intimidate witnesses, to scare them, to cause them to change or withhold their testimony in a way that favors him. He is "a threat to the integrity of the judicial proceedings." 

Look, if you wish, for more lying and whining by Trump. 

Read the Trump a threat to integrity of judicial proceedings order

Robert L. Abell
www.RobertAbellLaw.com

The Government Cannot Lose in the Sixth Circuit

The Sixth Circuit's majority opinion in United States v. Carter is an embarassment and illustrates how far some members of that court will go to assure that the government can never lose a case in the court, no matter what it argues (or fails to argue) in its brief. 

Carter is a routine enough sentencing appeal. The defendant was sentenced to 108 months in a meth-trafficking case. He raised two points in support of a variance in the district court: (1) a policy argument that the sentencing guidelines as to methamphetamine overstate a defendant's culpability based on an archaic and incorrect theory that the greater the purity level of the relevant meth, the greater the defendant's culpability and, therefore also, his sentence; and, (2) his difficult personal circumstances. At the sentencing hearing, according to the Sixth Circuit majority, Judges Joan Larsen and John Nalbandian, the defendant "made only passing reference to his policy argument" and "focused primarily on his life experience and characterisistics." Also according to the majority, the district court also "focused on Carter's primary argument, his life experience and characteristics." The district court did state that it read Carter's sentencing memorandum, so it was aware and said it did presumably consider his policy argument. The district court announced the sentence and then asked: "Pursuant to United States v. Bostic, is counsel satisfied that I've addressed on the record all non-frivolous arguments asserted?" Parties for both counsel answered: "Yes, your Honor."

Carter argued on appeal that his sentence was procedurally unreasonable since the district court did not address or sufficiently consider his policy argument about the meth guidelines. The Sixth Circuit panel majority held that Carter had either waived the argument or had invited the district court's error and was foreclosed. Neither hold water; both are contrivances intended to nail shut even tighter the courthouse doors barring relief for criminal defendants in the Sixth Circuit. The contrivance is so extreme that Senior Circuit Judge Ronald Gilman was moved to author a concurring opinion in what otherwise was a flyspeck of a case. 

The majority's contrivance is on such shaky ground that it could not decide what it was, whether a waiver or invited error. It relied on the district court's reference to Bostic, although the majority allowed that the "Bostic preface is somewhat out of place because the question that immediately followed was not the Bostic question, though that question came later." Waiver is, as the majority noted, that intentional relinquishment or abandonment of a known right. But it is beyond the pale to find waiver on this record as Judge Gilman noted:

In the present case, the district court expressly stated tha tits quesiton was "[p]ursuant to United States v. Bostic" immediately before asking a question that, as the majority acknowledges, "was not the Bostic question." I fully agree with the majority that the invocation of Bostic was "somewhat out of place," which makes one hard-pressed to characterize counsel's response as an intentional relinquishment or abandonment of Carter's right to object. The doctrine of waiver, therefore, is simply beyond the pale based on the record before us.

This seems simple enough: a party can't be judged to have waived an argument on point A, if it is asked about something other than point A. 

But neither did the majority decide that Carter had invited the district court's error. Instead, it dodged that question and asserted that it only considered arguments where a party had invited error below where there would otherwise be a manifest injustice. Apparently, the majority concluded that there would be no manifest injustice because the government could not be sufficiently faulted for not insisting the district court address Carter's policy argument ("the government is not equally at fault for the alleged error"). 

Notably and as Judge Gilman's concurrence observed, "the government did not argue that Carter either waived his policy-based argument or invited the district court's error." In other words, the majority contrived wholly its squishy we're really not sure why we're deciding defendant loses but he does because the government can't rationale. 

Remember the rule in the Sixth Circuit: the government can't waive or forfeit an argument, but a reason can always be contrived that the defendant can and did. 

The majority's opinion is an embarassment and an abomination; the best thing about it is that it will be largely if now wholly ignored in the future. 

Robert L. Abell
www.RobertAbellLaw.com

 

The Inside Story of the Supreme Court's Dobb Decision; the Signs Point to a Justice as the Leaker

The New York Times ran an excellent piece, Behind the Scenes at the Dismantling of Roe v. Wade, on the Supreme Court's machinations to fundamentally alter the lives of women in the United States by its decision in Dobbs v. Jackson Women's Health. Surely everyone remembers that Justice Alito's draft opinion was leaked some several weeks before it was officially issued. A reasonable inference to be drawn from the article is that Justice Samuel Alito leaked it himself and did so to deter Justice Brett Kavanaugh from joining a possible opinion by Chief Justice John Roberts and Justice Stephen Breyer that would have trimmed Roe v. Wade significantly but not overruled it and lead to travesties such as we saw last week in Texas, A Texas Case That Shows Abortion Exceptions Are A Sham and What Happened to Kate Cox Is Tragic and Completely Expected. 

Some side notes on Samuel Alito and his ethics: Alito Took Luxury Fishing Vacation With GOP Billionaire That Later Had Cases Before the Court and Samuel Alito Joins Supreme Court's Billionaires' Club. 

A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells?

In the Age of Trump, the question answers itself: No and it doesn't care. 

Robert L. Abell
www.RobertAbellLaw.com

Second Amendment violated by prosecution of admitted pot smoker for possession of firearms

Federal law makes it illegal and a felony for a regular user of illegal drugs, as marijuana continues to be in a number of states and under federal law, to possess a gun or firearm. The U.S. Court of Appeals for the Fifth Circuit has ruled that a prosecution for violating this law violates the Second Amendment in United States v. Daniels. 

The defendant, Daniels, was stopped for driving without a license plate. There were some marijuana cigarette butts in his car's ashtray, but he wasn't high when he was pulled over. He also had in the car two loaded firearms: a 9mm pistol and and a semi-automatic rifle. He was indicted and found guilty of violating 18 U.S.C. § 922(g)(3). The Fifth Circuit reversed the conviction and ordered that the indictment be dismissed. 

The key to the ruling is that Daniels, the defendant, was not shown to be high, or stoned or intoxicated by marijuana or anything else when he was stopped. So the question really was: does the Second Amendment allow prosecution for possession of firearms of someone who sometimes smokes marijuana but who was not shown to be impaired or affected by it when he was stopped and found to have some guns in his car? No, the Fifth Circuit answered; our Nation does not have a historical tradition of disarming our citizens perpetually and at all times just because they might on occasion smoke some weed or have a drink or two too many. 

The ruling is the latest affirmation from the Fifth Circuit of the right to keep and bear arms enshrined in the Constitution by the Second Amendment. 

Robert L. Abell
www.RobertAbellLaw.com

 

Judge that told defendant he "looks like a criminal to me" should have recused, Sixth Circuit rules

District Judge Stephen J. Murphy of the United States District Court for the Eastern District of Michigan became exasperated with a defendant and remarked:

This guy has got my attention, Mr. Arnone [defense counsel]. What do you want me to do? This guy looks like a criminal to me. This is what criminals do. This isn't what innocent people, who want a fair trial do. He's indicted in Kentucky. He's indicted here. He's alleged to be dealing heroin, which addicts, hurts and kills people, and he's playing games with the Court. Do you agree?

About a year and a half later, after numerous pretrial hearings and proceedings, Judge Murphy presided over the trial where the defendant was found guilty and then imposed a sentence of 127 months. 

The Sixth Circuit ruled that Judge Murphy should have recused, vacated the conviction and sentence and remanded the case for trial before another district judge. First, Judge Murphy's remark that the defendant "looks like a criminal to me" would indicate to a reasonable observer that the judge had prejudged the defendant's guilt based on his physical appearance. Second, Judge Murphy's remarks that "I'm tired of this case" and "I'm tired of this defendant" also indicated prejudgment of guilt. Third, that the defendant went through a series of lawyers did not make Judge Murphy's impatience understandable to the Sixth Circuit, although the government, of course, saw it otherwise:

To the contrary, we do not find the district judge's conduct understandable in the least. The complexity or long duration of a criminal case gives no license to a district court to prejudge the defendant's guilt or otherwise dispose of the case in any manner except through fair proceedings. And if [defendant] was more persistent than most defendants in pursuing his constitutional right to  proceed to a jury trial on the merits, the district judge had ample means available to him to rule on any issues [defendant] raised and to keep the proceedings on track. 

The defendant moved for Judge Murphy's recusal right before his trial started. In fairness to Judge Murphy, he did apologize, more or less, for his earlier remarks and assured the defendant he would get a fair trial. That didn't cut any ice with the Sixth Circuit which observed that Judge Murphy "could have acted sua sponte to address the issue of recusal, or at least to convene a hearing to discuss with the parties the need for recusal." 

The case is United States v. Liggins. See also Appeals court scolds federal judge for saying defendant 'looks like a criminal'; After federal judge says Black man "looks like a criminal to me," appeals court tosses man's conviction.

Robert L. Abell
www.RobertAbellLaw.com

Are felon in possession of a firearm prosecutions unconstitutional under Second Amendment?

There is a good argument that felon in possession of a firearm prosecutions for violating 18 U.S.C. § 922(g)(1) by the federal government are unconstitutional and violate the Second Amendment. This argument comes from the Supreme Court's monumental Second Amendment decision last year in New York State Rifle & Pistol Ass'n v. Bruen, and the "originalist" theory of the Constitution that has become the currency of the Supreme Court's Republican-appointed majority. 

Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so the questions then become what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms? 

The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:

James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state." 

A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."

Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”

So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional. 

So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals. 

This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed. 

Robert L. Abell
www.RobertAbellLaw.com 

Does the federal government have any power to regulate or limit Second Amendment rights to keep and bear arms?

Since the Supreme Court's decision last June in New York State Rifle & Pistol Ass'n v. Bruen, there has been a near-tidal wave of litigation as to Second Amendment issues. The most frequent of these are motions to dismiss indictments charging violation of 18 U.S.C. § 922(g)(1), which makes it a crime for someone previously convicted of a felony (or its equivalent) from possessing a firearm. So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals. 

Judge David Porter of the Third Circuit in a concurring opinion in Range raised the issue of whether the federal government had any power or authority to regulate or limit Second Amendment rights to keep and bear arms. The Supreme Court hasn't considered this question. There is a strong argument that the Second Amendment allows the federal government no power or authority to limit or regulate the right to keep and bear arms. The argument proceeds as part and rests on the "originalist" theory of the Constitution that has become the currency of the Supreme Court's conservative, Republican-appointed majority. 

Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms? 

The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:

James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state." 

A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."

Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”

So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional. 

This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed. 

Robert L. Abell
www.RobertAbellLaw.com