Subsequent to the Supreme Court's 2008 decision in District of Columbia v. Heller, declaring the right to keep and bear arms a fundamental individual right, federal courts in New York and Washington have held that denying the right to bear arms based only upon mere arrest is unconstitutional.
At issue in those cases was the constitutionality of the 2006 Adam Walsh Child Protection and Safety Act which prohibited persons arrested (not yet convicted) for child pornography from possessing guns. A federal judge in New York said that it is unconstitutional for an
"accused person be required to surrender his Second Amendment right to possess a firearm without giving that person an opportunity to contest whether such a condition is reasonably necessary in his case to secure the safety of the community."
United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008). Echoed another federal judge, this time in Washington:
"the Supreme Court held that the Second Amendment created an individual right to possess firearms. If the government's position in this case is sustained, this constitutional right would be taken away not because of a conviction, but because a person was merely charged."
United States v. Kennedy, 593 F. Supp. 2d 1221 (W.D. Wash. 2008).
