I blogged about this issue three weeks ago. Under 18 U.S.C. § 3142(c)(1)(B), someone who is charged with possessing child pornography -- among other crimes -- and is freed on bail must be ordered not to possess any firearm. In late December, U.S. v. Arzberger (S.D.N.Y.) concluded that this violated the Due Process Clause, largely because the right to bear arms is protected under the Second Amendment.
A few weeks later I found another opinion, U.S. v. Kennedy (W.D. Wash.) (Donohue, M.J.), which holds the same thing (it was decided earlier than Arzberger, but placed online later). Here's the magistrate judge's reasoning, which the district judge (Richard A. Jones) approved without further analysis (paragraph break added):
Pretrial Services recommends that Defendant be prohibited from possessing a firearm, which is a mandatory condition under the Walsh Act. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created an individual right to possess firearms. In footnote 27, Justice Scalia noted that a law regulating a specific, enumerated right such as the right to keep and bear arms was subject to more than a rational basis level of scrutiny.
If the government's position in this case is sustained, this constitutional right would be taken away not because of a conviction, but merely because a person was charged. This right would be lost notwithstanding a lack of showing that Defendant is a potentially violent individual, or that he even owns firearms. Certainly no particularized need has been established in this case that the Defendant should prohibited from possessing a firearm. As such, they will restrict his freedom to such a substantial degree that they do nonetheless implicate a protected liberty interest, which may not be revoked without according Defendant procedural due process; specifically, an individualized determination as to whether the onerous mandatory conditions are needed to assure the Defendant's future appearance or to avoid a danger to the community. No such determination has occurred here.
Note that the magistrate's decision had a substantive effect, beyond just requiring the government to provide more evidence; the government apparently couldn't provide the evidence, so the defendant was released without the firearms restriction.
By the way, here is the government's argument for imposing the firearms restriction, and for reversing the magistrate's ruling:
[T]here is no indication that the restriction on firearms will impose any burden on Defendant whatsoever, as Defendant has not contended that he has any need to possess or have access to firearms. Moreover, this condition will help ensure the safety of the community by restricting Defendant’s ability to harm himself or others by using a firearm....
[C]riminal defendants, such as Defendant, who have been charged with a violent crime simply do not have a “fundamental right” to possess or have access to firearms. Accordingly, the condition precluding possession of firearms for the relatively brief time pending trial does not affect a fundamental liberty interest.
There's no explanation for why simply being charged takes away a defendant's Second Amendment rights. (Note also that Kennedy's crime -- possession of child pornography -- is not a "violent crime" under any normal understanding of the term, though it is a serious crime.) I also put up Kennedy's response to the motion, though it focuses on other matters.
Related Posts (on one page):
- Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:
- The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:
