July 5, 2000 Decision Could
Help in Emerson CaseIn this latest case, the 8th Circuit Court, while upholding a conviction for illegal possession of a firearm after a domestic violence misdemeanor conviction, noted in dicta that the Second Amendment protects an individual right, citing U.S. v Miller. Furthermore, the dissenting Judge gave a very strong and reasoned argument on 5th Amendment Due Process grounds. Both of these arguments are the heart of the Emerson Decision! Let's hope the 5th Circuit finds and studies this important new ruling!
This new court case is United States v. Hutzell (8th Cir. July 5, 2000). The text is available here:
http://caselaw.findlaw.com/data2/circs/8th/993719P.pdfUnited States v. Hutzell calls into question earlier Eighth Circuit cases purporting to assert that the Second Amendment does not protect an individual right.
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992) available at: http://www.2ndlawlib.com/court/fed/978f2d1016.html
United States v. Nelson, 859 F.2d 1318 (8th Cir. 1988).
The Hale and Nelson cases were inconsistent with a prior Eighth Circuit case affirming a District Court decision that the Second Amendment does protect an individual right. U.S. v. Wiley, 309 F. Supp. 141, 145 (D. Minn. 1970), aff'd, 438 F.2d 773 (8th Cir. 1971).The key quote from the district court in U.S. v. Wiley, 309 F. Supp. 141 reads:
In essence, since there is support for the proposition that it is eminently reasonable to categorize convicted aggressors as a separate class whose individual right to bear arms may be prohibited, there can be no violation of a constitutionally protected right of defendant under the Second Amendment.
Here are a few of the key quotes from United States v. Hutzell (8th Cir. July 5, 2000), First from the majority opinion:
Although an individual's right to bear arms is constitutionally protected, see United States v. Miller, 307 U.S. 174, 178-79 (1939), the possession of a gun, especially by anyone who has been convicted of a violent crime, is nevertheless a highly regulated activity, and everyone knows it. Page 4.
While this quote indicates that the right of firearm ownership is subject to many current regulations, the right remains individual and therefore these controls must have limits when dealing with non-criminal individuals. This case also cites United States v. Miller as protecting this individual right (in clear opposition to both the Feds and Handgun Control's slant of this case!). These are exactly the rulings Judge Sam Cummings made in U.S. v. Emerson.
There must be a limit to government regulation on lawful firearm possession. This statute exceeds that limit, and therefore it is unconstitutional." U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999).
On Miller, Judge Sam Cummings in U.S. v. Emerson noted:
It is difficult to interpret Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for example, that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly used for modern warfare, including, of course, assault weapons. Under Miller, arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, thus might turn on the usefulness of such guns in military settings. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 654-55 (1989).
Miller did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms. Although its holding has been used to justify many previous lower federal court rulings circumscribing Second Amendment rights, the Court in Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction. See Printz v. United States, 521 U.S. 898, 937-38 & n.1, 2 (1997) (Thomas, J., concurring).This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. [see footnote 2] If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections. [see footnote 3]
United States v. Hutzell has even better quotes from the Honorable Mark W. Bennett, Chief United States District Judge for the Northern District of Iowa, sitting by designation in his strongly worded dissent. Most quotes involve due process, but a few quotes discuss individual gun ownership as a "passive" and "not per se blameworthy." The Judge makes an excellent case for "mere possession" of a firearm as an exemption to "ignorance of the law is no defense" as outlined in Lambert v. California, 355 U.S. 225 (1957).
In other words, “mere possession” of a firearm after conviction of a domestic violence offense, the “test” under § 922(g)(9), is “unaccompanied by any activity whatever,” and such “mere possession” is therefore just as passive as “mere presence in the city” after a felony conviction. Cf. Lambert, 355 U.S. at 229. Consequently, the conduct defining the offense under § 922(g)(9) should be deemed to be “passive” under Lambert. Id.
2. “Not per se blameworthy” conduct
Furthermore, it certainly cannot be said that, in American society, being in possession of a firearm is “per se blameworthy.” See Freed, 401 U.S. at 609. Rather, unlike possession of hand grenades, the prevalence of firearm possession is such that one would “be surprised to learn that possession of [firearms] is not an innocent act.” Freed, 401 U.S. at 609; see also Staples, 511 U.S. at 610 (“[T]here is a long tradition of widespread lawful gun ownership by private individuals in this country.”). Admittedly, like hand grenades, firearms can be used as “highly dangerous offensive weapons.” Freed, 401 U.S. at 609. However, that is perhaps the only use for hand grenades, whereas it is far from the only, or usual, use for firearms in American society.
In regards to due process issues, Judge Bennett had even stronger words:
Nor can the passage of § 922(g)(9) or “the present social circumstances,” as asserted by the majority, constitute circumstances that would put a person on notice of the statute’s prohibitions and potential applicability to him or her. This argument is based on the legal fiction—rarely supported by real-life experience—that mere passage of a law, or even public controversy at the time of its passage, provides notice of the law’s existence or scope. Rather, the law in question here is so obscure that not only are most of the people to whom it might be applicable unaware of its existence, most state-court judges, those most involved in administration of domestic abuse statutes, appear to be unaware of it, and routinely fail to advise persons convicted of domestic abuse or subject to domestic abuse restraining orders of their potential liability for firearm possession under federal law. See Wilson, 159 F.3d at 294 (Posner, C.J., dissenting) (criticizing the Department of Justice for taking no steps to publicize § 922(g)(8) to state-court judges so that they could include appropriate warning language in domestic violence restraining orders) & id. at 295 (state-court judges would likely have welcomed advice to include warnings about § 922(g)(8) in their restraining orders, as such warnings would give their own orders “added teeth”).
...
As Chief Judge Posner observed, “[A] reasonable opportunity [to know the law] doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from [the defendant’s] milieu is able to take advantage of such an opportunity.” Wilson, 159 F.3d at 295 (Posner, C.J., dissenting). Furthermore, it is unrealistic to suppose that a person’s awareness that a past (or present) domestic assault is illegal would make such a person aware that his possession of a firearm after a domestic violence conviction was illegal or even subject to regulation. What such a person is likely to understand is that his conduct toward his domestic partner is subject to government scrutiny, not continued possession of a firearm. See id. (“The fact that the restraining order contained no reference to guns may have lulled him into thinking that, as long as he complied with the order and stayed away from his wife, he could carry on as before.”).
...
Due process requires proof that the defendant knew or reasonably should have known that his possession of a firearm after a conviction for a misdemeanor crime of domestic violence was prohibited in order to sustain a conviction under § 922(g)(9). No such knowledge or probability of knowledge was shown in Mr. Hutzell’s case. Therefore, I would hold that his conviction should be overturned on due process grounds.
The parallels to the U.S. v. Emerson case are great. Judge Sam Cummings utilized the same cases and reasoning as shown by the following sections in the U.S. v. Emerson case.
Emerson also contends that 18 U.S.C. § 922(g)(8) violates his Fifth Amendment due process rights. He argues that the perfunctory, generic temporary orders issued in his divorce proceedings expose him to federal criminal liability for engaging in otherwise lawful conduct.
Firearm possession is a valuable liberty interest imbedded in the Second Amendment to the United States Constitution. "[T]here is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples v. United States, 511 U.S. 600, 610 (1994). Thus, Emerson has a protected liberty interest in firearm possession under the Fifth Amendment.
"It is wrong to convict a person of a crime if he had no reason to believe that the act for which he was convicted was a crime, or even that it was wrongful. This is one of the bedrock principles of American law. It lies at the heart of any civilized system of law." United States v. Wilson, 159 F.3d 280, 293 (7th Cir. 1998) (Posner, C.J., dissenting). It offends both substantive and procedural due process for Emerson to be convicted of a crime he did not know existed. Because 18 U.S.C. § 922(g)(8) is such an obscure criminal provision, it is unfair to hold him accountable for his otherwise lawful actions.
The conduct this statute criminalizes is malum prohibitum, not malum in se. In other words, there was nothing inherently evil about Emerson possessing a firearm while being under a domestic restraining order. His conduct was unlawful merely because the statute mandated that it be. Wilson, 159 F.3d at 294 (Posner, C.J., dissenting). Section 922(g)(8) is one of the most obscure of criminal provisions. Here, Emerson owned a firearm, and knew or should have known that if, for example, he was convicted of a felony, he would have to relinquish ownership of his firearm. If by chance he did not know this, the sentencing judge or the probation officer would have informed him of the law. Nevertheless, when Emerson was made subject to the restraining order telling him to not harass his wife, Emerson could not have known of the requirement to relinquish his gun unless the presiding judge issuing the order told him. In this case, the state district judge did not tell Emerson about the requirement. Emerson’s attorney did not tell him either, because Emerson did not have a lawyer. The fact that the restraining order contained no reference to guns may have led Emerson to believe that since he complied with the order, he could carry on as before. Id. at 294-95.
Chief Judge Posner of the Seventh Circuit aptly explains the dilemma between the maxim "ignorance of the law is no excuse" and the inherent unreasonableness of criminal prosecutions involving obscure violations of law:
We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to a local law library and read Title 18. It would be preposterous to suppose that someone from [the defendant’s] milieu is able to take advantage of such an opportunity. If none of the conditions that make it reasonable to dispense with proof of knowledge of the law is present, then to intone "ignorance of the law is no defense" is to condone a violation of fundamental principles for the sake of a modest economy in the administration of criminal justice.
Id. at 295.
Section 922(g)(8) is also one of those "highly technical statutes that present . . . the danger of ensnaring individuals engaged in apparently innocent conduct," of which the Supreme Court spoke in Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939, 1946-47, 141 L.Ed.2d 197 (1998). Emerson’s case differs from Bryan because the statute in this case is easy to understand, but it is hard to discover, which in the end compels the same result as demonstrated by Lambert v. California, 355 U.S. 225 (1957).
In Lambert, a Los Angeles ordinance made it a crime for a convicted felon to remain in the city for more than five days without registering. Mrs. Lambert, a felon, failed to register. The Supreme Court held that the ordinance violated due process when applied to a person who had no notice of a duty to report. Id. at 229. The Court found that, while a legislative body may eliminate the mens rea from the elements of an offense, the constitutional requirement of due process of law places limits on this practice. Id. at 228. "[T]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Staples, 511 U.S. at 605 (citing United States v. United States Gypsum Co., 438 U.S. 422, 436-37 (1978)). However, eliminating the mens rea requirement is such a fundamental departure from longstanding principles of criminal law that courts have demanded an indication of legislative intent to do so. Staples, 511 U.S. at 606. Due process requires some adequate, meaningful form of a fair warning or notice to a respondent to a protective order that he will be committing a crime if he possesses a firearm.
Because § 922(g)(8) is an obscure, highly technical statute with no mens rea requirement, it violates Emerson’s Fifth Amendment due process rights to be subject to prosecution without proof of knowledge that he was violating the statute. Accordingly, Emerson’s Motion to Dismiss the indictment as violative of the Fifth Amendment is granted.
The anti-self-defense crowd should be extremely concerned about the tone coming from the Judicial Branch. The tide has turned in legal scholarship on the Second Amendment and this is beginning to affect how Judges view the Second Amendment.
Furthermore, the Fifth and Tenth Amendments are also gaining in protective powers. This could be a watershed event in the gun rights movement.