Heller ruling opens doors to novel gun law challenges
August 15, 2008

by Joseph P. Tartaro
Executive Editor

The debate over firearms laws and policies is likely never to end. The ink is hardly dry on Supreme Court Justice Antonin Scalia’s majority opinion in District of Columbia vs. Heller that lawyers, plaintiffs and commentators have begun looking for new ways to parse Scalia’s meaning.

As might be expected, journalists have found some new perspectives on the continuing gun debate.

Here’s one example. “Twice convicted of felonies, James Francis Barton Jr. faces charges of violating a federal law barring felons from owning guns after police found seven pistols, three shotguns and five rifles at his home south of Pittsburgh, PA,” according to Associated Press (AP) and The Durant Daily Democrat.

As a defense, Barton and several other defendants in federal gun cases are now arguing that the Supreme Court ruling in District of Columbia vs. Heller allows them to keep loaded handguns at home for self-defense.

“Felons, such as Barton, have the need and the right to protect themselves and their families by keeping firearms in their home,” says David Chontos, Barton’s court-appointed lawyer, according to AP and The Daily Democrat.

Chontos and other criminal defense lawyers say the high court’s decision means federal laws designed to keep guns out of the hands of people convicted of felonies and crimes of domestic violence are unconstitutional as long as the weapons are needed for self-defense.

So far, federal judges uniformly have agreed these restrictions are unchanged by the Supreme Court’s landmark interpretation of the Second Amendment.

“The line I’m proposing, at the home, is entirely consistent” with the Supreme Court ruling, said Chontos, a lawyer in Turtle Creek, PA. A court hearing on the issue was scheduled for late July, but so far there have been no further details.

The legal attacks by Chontos and other criminal defense lawyers are totally separate from civil lawsuits filed by the Second Amendment Foundation, Illinois States Rifle Association, National Rifle Association, and others challenging handgun bans in Chicago and its suburbs as well as a total ban on guns in public housing units in San Francisco.

People on both sides of the gun control issue say they expect numerous attacks against local, state and federal laws based on the high court’s 5-4 ruling that struck down the District of Columbia’s ban on handguns. The opinion by Justice Antonin Scalia also suggested, however, that many gun control measures could remain in place.

Denis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence, said Scalia essentially was reassuring people that the laws keeping guns from felons and people with mental illness and out of government buildings and schools would withstand challenges. But Henigan said he is not surprised by felons pressing for gun-ownership rights.

“The court has cast us into uncharted waters here. There is no question about that,” Henigan said.

“There is now uncertainty where there was none before,” he said. “Gun laws were routinely upheld and they were considered policy issues to be decided by legislatures.”

At the Justice Department, spokesman Erik Ablin said the agency’s lawyers “will continue to defend vigorously the constitutionality, under the Second Amendment, of all federal firearms laws and will respond to particular challenges in court.”

Cities’ outright bans on handguns probably are the most vulnerable laws following the Supreme Court ruling. Many lawyers and Second Amendment experts believe that restrictions on gun ownership in public housing also will be difficult to defend.

The question for courts will be whether the government has more power when it acts as a landlord, as it does in public housing, than in general.

“I think there’s a very substantial chance that these kinds of ordinances will be struck down because they are aimed at people who have shown no reason to be viewed as untrustworthy,” said Eugene Volokh, a law professor at the University of California, Los Angeles, who has written about gun rights.

San Francisco Mayor Gavin Newsom has said the city will defend the policy as good for public safety. “Is there anyone out there who really believes that we need more guns in public housing?” Newsom said when the suit was filed a day after the Supreme Court ruled on Washington’s handgun ban.

In the District of Columbia, the city housing authority is considering whether its prohibition on firearms in public housing can survive the court ruling, spokeswoman Dena Michaelson said.

But Volokh and some gun rights proponents said people convicted of crimes are less likely to succeed in their challenges.

Judges may find it harder to resolve cases in which nonviolent criminals, particularly those whose only offense happened long ago, are charged with gun possession.

As previously reported in Gun Week, the Supreme Court has a case on its calendar for the Fall that could indicate whether the justices are inclined to expand their ruling.

In United States v. Hayes, the government is asking the court to reinstate a conviction for possession of a gun for someone previously convicted of a domestic violence crime. In 1994, Randy Hayes received a year of probation after pleading guilty to beating his wife.

The 4th US Circuit Court of Appeals overturned the conviction because the West Virginia law Hayes violated does not specifically deal with domestic violence crimes. The question for the high court, then, is a technical one: whether the law has to include domestic violence to be used in the future to prevent someone from owning guns?

Advocates on both sides of the gun control debate will be watching closely to see whether the court’s DC decision is relevant to the Hayes case and, if so, how.

But the whole idea of gun rights for felons has suggested a new debate and noted pro-gun constitutional scholar and attorney and Don B. Kates addressed the issue in a July 22 New York Post commentary.

Kates seems horrified when he wrote, “Now, across America, public defenders and other lawyers for rapists, robbers and murderers are filing motions contending that their vicious clients have a Second Amendment right to have guns.

“If this were correct, the Second Amendment would be a very bad thing. Happily, it’s not so.

“The high-court opinion vindicated the constitutional right of ordinary, responsible law-abiding adults to have a handgun to protect their families, homes and themselves. It also flatly stated that this right does not apply to criminals,” Kates continued.

He assured readers that federal and state laws against convicted felons having guns are still valid: The Second Amendment protects a right of self-defense for “good” people only, he said.

Kates continues to discuss the studies of other criminologists to illustrate his arguments, and the intentions of the Founding Fathers. He argues that:

“In all societies recognizing a right to arms, that right was limited to ‘the virtuous citizenry.’ In this, as in much else, our Founders looked back to the ancient Greek and Roman republics. There, every free man was armed so as to be prepared both to defend his family against criminals and to man the city walls in immediate response to the tocsin’s warning of approaching enemies. Thus did each good citizen commit himself to the fulfillment of both his private and his public responsibilities.”

Kates is quick to note that “Unfortunately, modern legislatures have added a host of trivial felonies. … But the fact remains that people who have been convicted of serious criminal offenses have thereby lost their rights under the Second Amendment. They are subject to our laws against felons possessing firearms.”

Still, this debate over allowing felons to possess guns at home for protection of themselves and their families, again raises the issue of relief of disability. That’s a legislative decision.
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