Judge Jack Weinstein Finds Ban on Receiving Firearm By Person Under Indictment Constitutional

December 3rd, 2011

From ConLawProf:

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.

Man, when Weinstein rules against a defendant, you must know it is a really weak argument.