Is 28 U.S.C. 922(n) Unconstitutional following Heller?

May 11th, 2011

Eugene Volokh links to a case from the Southern District of Alabama, wherein the Defendant was indicted on a violation of 18 U.S.C. 922(n), which provides:

(n) 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.

The Defendant moved to dismiss the indictment, among other grounds, on the fact that the statute is unconstitutional following Heller. The U.S. Attorney argued that this statute was permissible under Heller:

In Heller, the Supreme Court held that the Second Amendment provides an individual with a right to possess and use a firearm for lawful purposes, such as self-defense within the home. However, the Supreme Court also made clear that “the right secured by the Second Amendment is not unlimited.” The Supreme Court emphasized that “nothing in [its] opinion should be taken to cast doubt on the longstanding prohibitions of possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.[” These] regulatory measures provided by the Court were intended as examples of constitutional restrictions to the right guaranteed under the Second Amendment, and were not intended to be an exhaustive list. Thus, like other constitutional rights, the individual right protected by the Second Amendment is not absolute, but is subject to appropriate restrictions.

Restricting the ability to possess firearms by an individual under indictment for a crime punishable by imprisonment for a term exceeding one year is a constitutional restriction of that individual’s Second Amendment right. Nothing in Heller, or any subsequent binding opinion, suggests otherwise.

Eugene finds this unpersuasive. I agree for largely the same reasons, but I wish to opine on a broader point that Eugene alludes to:

Maybe an indictment plus a judicial finding of dangerousness, following an adversary hearing, might suffice; I can’t speak to that, though I should note that an indictment plus a judicial finding of sufficiently great dangerousness, following an adversary hearing, does suffice for denying the defendant bail and keeping him locked up for trial. But an indictment alone shouldn’t be enough. Nor can the prohibition be saved on the grounds that the indictment is only temporary, since the defendant will usually soon be either convicted or acquitted (or have the charges dropped against him). Denying someone the tools needed for effective self-defense for several months is still a substantial burden on the right to self-defense.

Even Eugene’s proposed framework, which seeks to protect the right to self-defense, grounds the right to keep and bear arms on a person’s dangerousness. This, as I argue in The Constitutionality of Social Cost, is the true motivating factor underlying all 2nd Amendment calculus. Self-defense, and any burdens placed on it, are all well and good, but when there is a fear of danger or harm to society, all that goes out the window. Eugene’s comment supports this.

An indictment is hardly evidence that a person is dangerous. In fact, this minimal showing, would hardly suffice in any other context to deny someone a constitutional right. What about an indictment + judicial finding (not a jury finding) of dangerousness, as Eugene suggests? This simply cements what I argue in my article. Judges, pundits, and others want to keep guns out of the hands of those who pose a danger to others. This seemingly common-sense conclusion is at odds with how the right is articulated in Heller and McDonald. Traditional notions of due process to protect constitutional liberties are put aside, for the time being.

Update: This is what happens when I read Volokh posts in reverse chronological order. I see Eugene blogged about this topic again. Eugene seems to agree my thought that 922(n) is unconstitutional.

I think § 922(n) is an unconstitutional restriction on Second Amendment rights, since the right to possess a gun must include the right to acquire the gun, free of government prohibition, and since — as I argued in the earlier post — Second Amendment rights aren’t lost just because one has been indicted. But, independently of that, § 922(n) just doesn’t sweep nearly as broadly as the prosecutor argued. (Note: The federal bans on gun possession and gun receipt are technically limited to “possess[ion] in or affecting commerce” or receipt of “any firearm … which has been shipped or transported in interstate or foreign commerce”; but in practice these jurisdictional requirements have been read in such a way that they are almost always satisfied.)