Pennsylvania lawsuit tests high court's ruling that lifts D.C. gun ban

[HiredGoon]

Local lawsuit tests high court's ruling that lifts D.C. gun ban
Sunday, July 13, 2008
By Paula Reed Ward, Pittsburgh Post-Gazette

A Washington County man charged in federal court with being a felon in possession of a handgun has filed a motion asking that the charges be dismissed based on a recent Supreme Court decision.

James F. Barton Jr. argues that the court's opinion lifting the ban on handguns in Washington, D.C. -- and the assertion that the possession of guns in the home is an individual right -- must be applied to all people.

Senior U.S. District Judge Alan N. Bloch has scheduled a July 31 hearing on the matter .

On its face, Mr. Barton's argument appears to have no merit because the majority opinion of the Supreme Court in District of Columbia v. Heller specifically noted: "[Nothing] in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ... ."

But it's precisely because of that language that attorney David B. Chontos, who represents Mr. Barton, filed his motion to dismiss.

Several legal scholars agree that th e instruction in the opinion is nothing but dictum, merely a statement by the court that is not binding as a precedent in lower courts or for the future Supreme Court.

But Mr. Chontos based his argument on language included in the Second Amendment, which reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Mr. Chontos argues that the phrase "the people," must mean the same as it does in other amendments, including the First, which guarantees free speech and freedom of religion, and the Fourth, which guarantees privacy and the right to be free from unreasonable search and seizure.

"Despite having a conviction history, Barton still has a right to free speech. He still has the right to exercise whatever religion he wants to," Mr. Chontos wrote. "Our Supreme Court has not even come close to saying that, once you are convicted of a federally defined felony, you can not assert a Fourth Amendment right.

"Heller holds that 'all Americans' have an 'individual right to use arms for self-defense.' This right is non existent, however, to Barton because a statute of Congress eliminates his ability to protect himself and his family through the possession and use of firearms in his home."

But legal scholars argue that all constitutional rights are not guaranteed.

Just as a person can't yell "Fire!" in a crowded theater, there can be some regulation on firearms, as well.

Duquesne University law professor Kenneth Gormley called Mr. Chontos' argument "a manufactured" one.

"There are lots of individual rights that come with limitations," he said.

By committing a crime, the felon has forfeited a number of rights, including the right to serve on a jury and to vote, as well as the right to own a firearm, he said.

Mr. Barton, 48, was convicted in 1995 of receiving stolen property -- which was a firearm -- and possession of a controlled substance with intent to deliver in Washington County.

In May 2007, investigators searching his home found 15 firearms -- seven pistols, three shotguns and five rifles -- as well as ammunition.

Mr. Chontos concedes that his client may not be the most sympathetic defendant to use as a test subject, but his argument remains the same.

"I firmly believe your home is your castle, and you should be allowed to defend yourself if an intruder comes in to do harm to you or your family," he said. "I think the key dividing line is the home. What you do in your home is far different from what you do in public."

Legal blogs have been paying close attention to this issue, he said.

Douglas Berman, a law professor at Ohio State University, runs the blog "Sentencing Law and Policy."

He believes that if you take the right of self-defense in the home established by the Supreme Court at face value, then the felon-in-possession law seems suspect.

"Courts are going to have to sort through issues that no one gave serious thought to," he said. "If we think this is an important right, it deserves constitutional treatment on par with other rights."

The majority opinion recognized that there have to be some restrictions on firearms, Mr. Berman said, but clearly an outright ban is not permissible.

The types of regulation cited in the opinion include felon-in-possession laws, as well as the prohibitions against carrying a firearm in a school or government building, and the qualifications required to purchase guns.

Mr. Berman went on to say that even though the felon-in-possession law is broad, those are the types of crimes for which prosecutors should use their discretion.

He described them as "the low-hanging fruit." Felon-in-possession laws are seen as very quick and easy cases to prove.

In the Western District of Pennsylvania, the number of felon-in-possession charges have gone from 19 in 2003 to 90 in 2007.

U.S. Attorney Mary Beth Buchanan said the people in this district who are charged with being a felon in possession are those who have significant and recent criminal histories.

Though she said the federal law prohibiting felons from possessing firearms doesn't differentiate between offenders, significant and recent criminal histories are just two of the criteria her office uses when meeting with local and state law enforcement to see if a case should be prosecuted federally.

"We've charged offenders with recent convictions or past convictions of a very serious and violent nature," she said.

Mr. Gormley expects with the recent Supreme Court decision that thousands of defense attorneys across the country will file motions similar to Mr. Barton's to test the issue.

But he also believes the dictum in the court's decision will win the day.

"The fact is, it's in the opinion, and lawyers and judges are going to think this is clearly what the court intended," he said. "It's going to have an impact."

[Dredly]

question...

how does he have 7 hand guns in his house if he is not permitted to purchase them? do they belong to family members or room mates?

[Agent Smith]

I would love to see the court rule in his favor, but I'm 99.8% positive they won't. I don't agree with felons being barred from firearm ownership, except in the case of violent or sex crimes.

Oh, and I absolutely hate that "fire in a crowded theater" argument.

[Siobhra]

The "fire in a crowded theater" argument can be be a good example in one sense. Rights are abridged in only the most extreme case. There is no law in any state nor is there any federal law against yelling fire in a crowded theater. The laws you will be charged with if you do yell fire will be charges related to the harm it would cause. Causing public disorder, public endangerment, etc. Those are the types of charges.

Gun rights on the other hand are dismissed lightly. What is a felon has been so watered down that it is a joke. All felons lose their rights regardless of the crime. Where other rights are debated on a whole host of things and the danger they pose, gun rights are not. Does the reporter have the right to publish state secrets with the freedom of the press or does the person have the right to drive a car impaired with drugs?

People lose their gun-rights for all sorts of trivial reasons. And a life long lose of rights should be even more so looked closely at. The person was convicted 13 years ago for those crimes.

I feel that part of the sentencing for a crime the judge should say if the rights are lost forever. Or maybe he should rule that all records should be expunged after so many years if the person stays clean. If not then it should be up to the state to start a separate case to determine if the gun rights are lost.

An individual person can lose rights but not a whole class of people.

[knight0334]

That guy doesn't stand a chance and is wasting tax dollars. The SCOTUS ruled that laws prohibiting felons wasn't a violation.

WTF is wrong with people? Cant they read?

Now dont get me wrong, there are some non-violent felony laws that shouldn't be a prohibiting factor. ..but until that is changed, you willfully give up your rights when you commit a felony. Should there be a restoration procedure that the working Joe can afford - yes. But you should have to prove to the rest of us that you are reformed and not a threat.

[PA Rifleman]

Originally Posted by Agent Smith

Oh, and I absolutely hate that "fire in a crowded theater" argument.

The often-forgot meaning by the person trotting shopworn-saw out is, your rights end where someone else's rights begin.

[TaePo]

Originally Posted by Agent Smith

Oh, and I absolutely hate that "fire in a crowded theater" argument.

Concur. They charge you ex post facto. They don't make you wear a gag or cut out your tongue because you might yell fire when there is not any fire in a crowded theater.

They don't take the analogy far enough.

Same with licensing. They make you do it because you might do something illegal.

[D-FENS]

I hope the guy wins. I contend that a loss of rights, whether temporary or permanent should be an explicit part of sentencing. That you can lose a right forever based ONLY upon the classification of the crime you're convicted of is preposterous.

[NineseveN]

Originally Posted by D-FENS

I hope the guy wins. I contend that a loss of rights, whether temporary or permanent should be an explicit part of sentencing. That you can lose a right forever based ONLY upon the classification of the crime you're convicted of is preposterous.

I concur, though I think D-FENS and I are going to be in the minority on this one...

[tobor]

I think the law regrading firearms use and felonies should be liberalized.

If I get caught with *one* hollow point in NJ, I am barred forever. All I'd have to do is drop one after going to the range in PA. And I go into NJ all the time.

Violent crimes, robbery, etc, keep that the same. But lets loosen up some of the rest.

I predict there will be dozens of lawsuits over the next couple of years.

The mention of "felon" in the latest Supreme Court ruling does not preclude a loosening of the law here. When the right case goes to the Supreme Court, then we'll see clarification. The court probably wouldn't even accept this case.

But I bet you'll see them accept another "felony" case within the next year, one that doesn't involve stolen guns, no violent crime, but one in which Scalia is aching to take, one that will further clarify 2nd amendment rights.

I think we'll also see a "concealed carry" case make its way there. Do I only have the right to protect myself in my home? It's a whole lot more dangerous outside my home. New Jersey would be a great test state, as virtually no one get a carry license.