A fundamental right

Two years ago, in District of Columbia v. Heller, the Supreme Court held that the 2nd Amendment guaranteed an individual, rather than collective, right to bear arms. Last year, in McDonald v. City of Chicago, the court applied the 2nd Amendment to the states. In the wake of Heller, numerous legal observers, including me, opined that the decision would have an affect on gun regulations, as I suggested here: I recently had a client charged with having a weapon under disability, based on a twenty-year-old drug conviction. If there's an individual constitutional right to own weapons, does the age of the conviction and the nature of the crime preclude imposing a disability on that basis? Can you argue that there's no "compelling interest" in imposing a disability in those circumstances? Sad to say, as I acknowledged here, that argument went nowhere: there was a concurring opinion in a 10th Circuit case suggesting that felon-in-possession laws might be questionable in non-violent or non-drug cases, and there was a favorable district court ruling that got overturned on appeal, but nobody was listening to those who suggested that Heller/McDonald required a fresh look gun disability laws. Until now. Marinko Thomas owns a carpet business in a bad neighborhood in downtown Cleveland. Several years ago, Thomas fired one of his employees, who went to the Feds and told them that Thomas was a terrorist and had rocket launchers and bombs in his store. The Feds got a warrant, raided the place, and found no launchers or bombs, but did find three guns. Problem number one was that, by virtue of a misdemeanor drug conviction – attempted trafficking in marijuana – back in 1991, Tomas wasn't allowed to have guns, so he was charged with weapons under disability. Problem number two was that, although Tomas had come to this country with his parents when he was one or two and had lived here for over 40 years, he'd never become a citizen, and a felony would get him deported. All this happened back in 2006. Tomas retained Cleveland attorney John Parker, and lucked out by getting a judge who was sympathetic to the situation. Parker filed a motion to dismiss the charges based on some Ohio cases and on Heller, which had just come out of the DC Circuit and was working its way up to the Supreme Court. The judge had a hearing back in 2007 where Parker brought in two Cleveland police officers to testify about how bad the neighborhood was, but the motion was denied. After Heller and McDonald, the court reconsidered, and on December 14 of last year granted the motion to dismiss. While recognizing that Tomas' "fundamental right to bear arms for the purpose of self-defense. . . is not absolute," applying strict scrutiny review, the State has no compelling interest in prohibiting this particular defendant from possessing firearms in his place of business and home. The State's appealed the decision. What to make of this? Several points. First, is the court correct in applying a strict scrutiny test? Normally, that's the test which is applied when fundamental constitutional rights are at issue, but neither Heller or McDonald addressed that question, and some commentators have suggested that an intermediate level of scrutiny, such as is used in sex discrimination cases, would be more appropriate. The difference is significant: while strict scrutiny requires that the law be that be narrowly tailored and the least restrictive means of futhering a compelling governmental interest, intermediate scrutiny requires only a showing that the law furthers an important government interest in a way that is substantially related to that interest. That's one issue which will have to be sorted out on appeal, but the argument in support of using strict scrutiny seems stronger to me. The language in both the decisions clearly identifies the right to bear arms in self-defense as fundamental, and, as noted, the lesser standard has been applied where fundamental rights aren't at issue. Second, I've mentioned before that while appeals are supposed to be decided on questions of law, having good facts goes a long way. Tomas wasn't walking around in public with the guns, let alone using them to commit a crime; they were in his home and business. The conviction which gives rise to the disability was a misdemeanor; Tomas had five joints, was charged with trafficking, and pled out at the first pretrial to a misdemeanor, resulting in a $150 fine and a waiver of court costs. That's especially signficant in light of repeated dicta in both Heller and McDonald that neither decision should "cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…" (My emphasis; the trial court also seized on that distinction in dismissing the case against Tomas.) There's ample proof in the record that the guns were intended for self-defense. That goes to the essence of the two Supreme Court decisions, which overruled local ordinances which essentially banned possession of weapons in the home. That's not to suggest that Tomas is home free. The 2nd Amendment has long been the bastard child of the Bill of Rights, and neither Heller or McDonald elevate it to the level of, say, the First Amendment; both Scalia (in Heller) and Alito (in McDonald) took pains to note that the decisions would not affect felon-in-possession laws, as well as "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Those statements are at odds with the position of gun rights supporters, that "assault weapons" bans, laws prohibiting carrying guns on college campuses or in national parks, or limiting handgun purchases to a certain number per month, are indeed a violation of one's 2nd Amendment right. Tomas also has one other thing going for him: the notion that the government has an interest, compelling or otherwise, in making sure that someone with a 20-year-old misdemeanor drug conviction for marijuana can't possess a gun for self-defense is flatly absurd.

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