Attorney General’s memo on pursuing drug-related capital crimes

This is a follow-up to my last post, from March 19.  Yesterday, March 20, the Attorney General circulated this memorandum to the United States Attorneys, “strongly encourag[ing]” federal prosecutors to “use” the existing capital offense statutes that involve drug trafficking predicates.  He specifically identifies VICAR, the firearms statutes, the CCE law, and the drug kingpin provisions of the Federal Death Penalty Act (did he catch my last post, I wonder?).

While I fully support the sentiment expressed in the AG’s memo, I’m wondering what its purpose is.  After all, the existing death penalty protocol already requires that the United States Attorneys submit all death-eligible cases to Main Justice for review.  Pursuant to the existing death penalty protocol in the United States Attorneys Manual, federal prosecutors in the districts cannot unilaterally decide whether to seek the death penalty; they can only make recommendations, and the final decision belongs solely to the AG.  This is important, by the way.  As I understand the memo, it should not be interpreted to mean that the AG has now instructed federal prosecutors to unilaterally seek death sentences.  Under the protocol, they have no such power until he says so after Main Justice protocol review.  Rather, unless I am mistaken about the memo’s meaning, I understand the memo as instructing federal prosecutors to charge these underlying capital offenses (i.e., to “use” them) when the facts support such charges, thus ensuring Main Justice review and an AG decision, as well as a conforming indictment.  I do not see this as unilaterally changing the protocol (indeed, it would be strange for the AG to simply give up centralized Department review in these cases).  Consequently, when the AG refers to the “pursuit” of the death penalty in these cases, he is the one — the only one — who decides whether the death penalty is “pursued.”  It makes little sense to place that burden on the districts, who already have an obligation to submit death-eligible cases for review.

With that in mind, my sense is that federal prosecutors are already “using” these statutes — in the sense that they are seeking indictments and submitting cases for review pursuant to existing statutory law (with the possible exception of using section 3591(b), which applies only to a very small subset of potential defendants, as compared to, say, section 924, which is far more broadly applicable).

Moreover, assuming the memo means to retain the existing protocol, is the AG hinting that more USAOs need to submit “seek” recommendations?  Or is he hinting that he will sign off on the death penalty in cases implicating these statutes?  I reiterate, as I have before: the death penalty may be the right decision in a given case, but it is dangerous to signal in advance that the death penalty will be sought, prior to full and fair review of each individual case.

So I suppose one possible consequence of Monday’s presidential announcement, and of the AG’s memo, is that more and more United States Attorneys will submit “seek” recommendations to Main Justice.  And perhaps that is wise, depending upon the cases.  But each case will still have to proceed through the Capital Case Section and the AG’s Review Committee, as well as ODAG and OAG.  And defendants will still have the opportunity to argue against seeking death in their cases.  So it is possible that this new push will practically result in more capital prosecutions in cases involving drug-related killings.  But I do not see how it will change much of what federal prosecutors, and the death penalty experts at Main Justice, are already doing, and have been for many years.

Perhaps, then, the purpose of the memo was not to change what is already happening on the ground in the world of federal prosecution.  Perhaps the memo was simply meant to send the message that this Justice Department takes seriously the social, cultural, familial, and economic damage being done by those who seek to profit off of the misery, tragedy, and ultimate death of those affected by the current drug crisis.  More death sentences will not solve the crisis.  But a death sentence might serve the ends of a justice in a given case.

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Trump and Thomas on guns, after Parkland

Gun law and policy dominated much of this past week’s news.  While the President expressed interest in supporting new measures, he also returned to some of the more extreme gun rights rhetoric that we saw during the campaign.  Meanwhile, little-noticed, another Second Amendment voice emerged.

During the presidential campaign, then-candidate Trump took positions on gun rights that call into question the reliability of his views (his campaign website links to gun policy are now gone, but see the contemporaneous reporting here and here).  He apparently believed that “law-abiding people should be able to own the firearm of their choice.  The government has no business dictating what types of firearms good, honest people are allowed to own.”  Although he asserted that current laws should be enforced, he also objected to gun bans.  I covered this ground during the campaign, noting the incoherence of his position.

The President announced this week that he has directed the Attorney General to craft regulations making bump fire stocks unlawful.  Set aside for the moment that a President who has boasted about undoing the regulatory state is now pushing new regulations (rather than legislation, which he could recommend).  The idea appears to be based on the proposition that the accessory functionally turns a semiautomatic weapon into an automatic one (a “machine gun”), and thus into a weapon that is already banned.  See 18 U.S.C. 922(o).  Whether done through new legislation or a new regulation, effectively, the President is now supporting a ban on a specific type of firearm, which differs markedly from the line that he peddled during the campaign.

The President also stated this week that he was open to legislation expanding background checks for firearms purchases (NYT coverage here).  During the campaign, as reported, Trump criticized efforts to expand background checks, saying that we should not expand a broken system and even promising to undo President Obama’s executive action on background checks (see here).  Perhaps his tepidly-expressed support this week will depend upon the specifics of forthcoming legislation.  But the real test of the President’s mettle on this issue will come when he is asked to back a measure that the NRA does not support.

Finally, he endorsed the idea of arming school teachers and staff (see WaPo here).  This idea may be worthy of consideration, but it is not a gun restriction. It will not reduce the number of guns available, nor would it likely deter many school shooters (e.g., those who expect, even hope, to be killed during their attack).  Moreover, whatever the merits of the idea with respect to school safety (and there are some), it is hard to see how this idea would protect Americans from gun violence in places that are not schools, or how it will help to curb gun trafficking, or gun crimes committed by street gangs or other criminal organizations that regularly employ and stockpile firearms, including military-style weaponry.

Another strong gun-rights view, however, appeared this week and was largely ignored.  Earlier in the week, Justice Thomas issued an opinion dissenting from the denial of certiorari in Silvester v. Becerra, a Second Amendment case involving the constitutionality of California’s 10-day waiting period for existing gun owners.  Repeating assertions he has made in earlier cases, Justice Thomas lamented the Court’s treatment of the Second Amendment, referring to it as a “disfavored right” and a “constitutional orphan.”  He correctly noted that the Court has not heard argument in a Second Amendment case in eight years, and has not granted a case assessing the constitutionality of a gun law in 10 years (since D.C. v. Heller).

Obviously, Justice Thomas’s several pleas to this effect have not persuaded the Court.  In fact, I wonder whether recent events will further dampen the likelihood that the Court will show interest in reviewing gun restrictions in the near future.  But his observations demand attention.  After all, it only takes four votes to grant.  So the question now is: will the Chief Justice and Justices Thomas, Alito, and Gorsuch ever agree on taking a new Second Amendment case?  What’s holding them back?

Since Heller, gun rights have become significantly liberalized in many states.  The practical effect of liberalization is that, even if courts restrict Second Amendment rights, the states remain free to keep gun rights broader than they would be pursuant to the Second Amendment.  Of course, Congress could mitigate some of this liberalization with federal legislation.  The most meaningful fights over gun rights therefore may not be found in Second Amendment litigation in the courts, important though that litigation may be.  Rather, the most meaningful battles may well be in Congress and in legislative bodies around the country that have seen fit to liberalize gun rights.  Still, close and pervasive gun regulation exists in America, and it is that regulation that is the subject of so many Second Amendment challenges.  Problem is, is this the right time for the Court to consider striking down gun regulations?

The mere fact of a political battle over individual rights does not necessarily mean that courts will stay on the sidelines (consider, for example, the same-sex marriage issue).  And rights are meant to be safe from the whims of political majorities.  Still, for now, perhaps the Court is content to leave its substantive Second Amendment jurisprudence where it stands after Heller, and leave the remainder to the political process, state constitutional law, and federal courts.  But if that is true, would it not prove Justice Thomas’s point?

One of Heller’s virtues was its recognition that Second Amendment rights are not unlimited; that a Nation devoted to the possession of guns for lawful self-defense and defense of others can also be a Nation where those same guns are sensibly regulated.  Imagine that, rather than avoiding the matter, the Court granted multiple Second Amendment cases and simply read Heller narrowly, clarifying the standard of review and applying it to protect most gun regulation.  That may not please Justice Thomas, and it would certainly result in amplified calls from some gun-rights advocates for appointment of “pro-gun” judges.  But a more fully developed Second Amendment jurisprudence could be helpful to the ongoing political debate about gun rights by clarifying the scope of the Constitution’s protection.

Indeed, a more fully developed Second Amendment case law could (depending upon its direction) have the effect of making absolutist Second Amendment rhetoric even less acceptable, pushing extreme gun rights talk further into the fringe and easing the legal path for sensible new criminal laws to prevent and punish gun violence.  That result would prove even more powerful if it came from the Court’s conservatives.  And for his part, the President could abandon his own loose rhetoric and return conservatism to its more natural place of balance, away from the extreme: that is, a decent respect for the tradition of gun rights tempered with a recognition that sensible gun regulation bears an important relationship to controlling crime and violence.

Suspected thief turns out to be felon in possession, but gun turns out to be inadmissible

Sometimes a federal gun possession crime results from an investigation specifically directed at the gun offense.  Sometimes, however, gun crimes result from investigations that have nothing to do with guns.  Just ask Phillip David Hernandez, who had an encounter with police as he walked next to a construction site that was located in a high-crime area and that was known for being the target of thieves interested in the construction materials there.  Did the police encounter turn up any stolen construction materials?  Nope.  It turned up a gun – which, as a convicted felon, Hernandez was not permitted to possess.  His case raises the question: was he “seized” for purposes of the Fourth Amendment when police questioned him from their patrol vehicle as he walked near the construction site?  If not, then the gun is admissible against him because the encounter is a “consensual” one, and does not implicate the Fourth Amendment.  But if it was a seizure, then the police have to demonstrate reasonable suspicion for the stop.  Can they?

According to the Tenth Circuit’s opinion in United States v. Hernandez, in October 2014, Denver police spotted Hernandez walking next to the construction site.  He wore all black clothing and carried two backpacks.  The site had been the subject of recent thefts of various materials, including sheet metal and copper piping.  Police suspected Hernandez might be serving as a lookout for thieves, though there was no one else around.  The officers also found it odd that Hernandez did not use the sidewalk on the other side of the street, but instead walked next to the construction area, essentially in the street.

When the officers pulled alongside him, Hernandez kept walking, and the officers followed along in a moving vehicle.  They did not display weapons nor raise their voices.  When asked where he was going and where he had been, Hernandez said he was at his grandmother’s and was headed home.  He then said, upon being asked, that he could not remember his grandmother’s address.  When asked if he would stop walking and talk to the officers, Hernandez complied.  When asked, he gave his real name but a false birthdate.  The officers pulled up his information on their computer, and it showed Hernandez’s mug shot and that he had violated parole, for which there was an active warrant.  He was informed of the warrant and approached by the officers on foot, and he began to walk away.  He reached for his waistband and an officer asked if he had a gun.  He said “yes,” the officer grabbed his arm, and a revolver fell to the ground.

Hernandez was indicted for being a felon-in-possession, 18 U.S.C. 922(g)(1), and filed a motion to suppress, which the district court granted.  The Government appealed.  The Tenth Circuit affirmed the suppression of the gun.

Was Hernandez seized?  Yes, this was a seizure that required reasonable suspicion, according to the court.  While this began, as do many police encounters on the street, as a consensual encounter that required no justification, it became a seizure when the officers asked Hernandez to stop walking and talk to them.  This was the point at which a reasonable person would not have felt free to terminate the encounter and continue on his way – considering that that it was dark, there were no other people around, and the request to stop was made by two uniformed officers who had been following him.  As the court put it, “a reasonable person would have believed that compliance with the ‘request’ was not optional.”

Now that we know he was seized, was there reasonable suspicion that would have justified the seizure?  No, the court said.  The police stop of Hernandez was, rather, based on “inchoate suspicions and unparticularized hunches,” the court wrote.  They had no evidence specific to Hernandez that he had committed any crime, and the mere fact that he was walking next to a location that had been the subject of previous criminal activity is not enough to make their suspicion of him reasonable.  Neither was the fact that he was in a “high-crime” area, or that he wore all black and had two backpacks, or that he chose not to use the sidewalk.

What about the fact that he could not recall his grandmother’s address?  The court found that the Government had not relied upon this argument previously, and should not be able to rely upon it now on appeal.  Still, that fact would not be entitled to much weight, the court said.  When each officer testified, neither relied upon this fact to establish their suspicions about Hernandez, “which,” the court said, “is understandable because ordinary experience tells us that a grandchild who knows the familiar way to his grandmother’s house may well not know her exact street address.”

A final aspect of this case is notable.  Could the Government have argued that the finding of the gun was sufficiently attenuated from the initial unlawful stop, given the existence of the active warrant for Hernandez, a la Utah v. Strieff?  Recall that in Strieff, the Court applied the attenuation doctrine to hold that the discovery of an untainted warrant breaks the link to an unlawful Terry stop.  As it happens, Strieff was decided after briefing and argument in Hernandez.  But the Government never relied on attenuation in the district court, and so had waived that argument on appeal.  Before Strieff had been decided, the Tenth Circuit noted, two other circuits followed the same rule that was ultimately recognized by the Supreme Court in Strieff.  So the attenuation argument was available to the Government, but the Government did not pursue it.

Query whether, had the attenuation argument been properly before the Tenth Circuit, Strieff would make the gun admissible.  Applying the Brown factors, as did Strieff, the Government would have had a persuasive argument that the discovery of the warrant here was an intervening circumstance that makes the gun admissible.

“Send in the Feds”? Don’t bother, they’re here.

Keeping up with President Trump’s Twitter activity is a full-time job, and I don’t have that kind of time.  So I rarely find it useful to comment on any of his Tweets.  I could not, however, resist responding to one from late last night, in which he makes a statement about the violence plaguing Chicago: “If Chicago doesn’t fix the horrible ‘carnage’ going on . . . I will send in the Feds!”

What does that even mean?

Chicago – a great American city by any definition – is home to a busy United States Attorneys Office, and field offices for the FBI, DEA, and ATF, among others.  Federal prosecutors and other law enforcement personnel in Chicagoland – among the brightest and most talented in the Nation – routinely work on violent criminal cases within federal jurisdiction.  Even a cursory look at the press releases for these federal offices shows that they have been busy using federal resources to fight Chicago’s dire crime problem (which seems connected in substantial part to a drug trafficking and gang problem).  See, e.g., here, and here, and here, and here, and here, and here.

In other words, what kind of federal role in Chicago does President Trump envision that does not already exist there?

One possibility is that he is not talking about policing and prosecution at all, but rather is talking about using National Guard troops.  That would raise serious legal issues, if the troops are called upon to engage in civilian law enforcement.  The image of uniformed military and even of military weaponry constantly patrolling Chicago’s streets is not an image of America becoming great again.  Another possibility is that he is talking about sending more federal money or other resources to Chicago to help combat the problem.  That would be welcome news to city and state officials in Chicago, I imagine (see a Chicago Tribune piece here).  But that is not typically what one would think of when hearing “send in the Feds,” a phrase that suggests a substantial physical presence by federal officials.  Perhaps even more agents and AUSAs could be placed there; perhaps federal drug and gang task forces there could be enhanced and better funded.  I would favor that move.  But let’s be clear: that’s not sending in the feds – that’s sending in more Feds.

Finally, while there is certainly a robust federal law enforcement role where the violent criminal activity involves guns, gangs, and/or drugs, does the President believe that the federal government should supplant the role of city and state officials in ordinary law enforcement involving street crime merely because the city and state are failing to curb the crime rate?  It is true that federal criminal law offers an expansive role for the Feds in this regard, but a more expensive role for the federal government is not something that conservatives and Republicans have typically defended, preferring instead that most criminal law enforcement be done at the state and local levels.  I can’t imagine intellectually honest conservatives going along with the idea of a wholesale federalization of criminal law enforcement in a major American city.

So if the President simply means ensuring a federal role in cooperation with the city and state role, then I must ask again: how is that different from the existing situation?

The President’s Tweet therefore raise two distinct questions.  First, is he even aware of, or does he understand, the rather extensive law enforcement role of the federal government in Chicago already?  And second, how does he envision the federal role there – or in other cities – in the scheme of constitutional federalism?

Unlike others who have been critical of the President’s focus on crime, I applaud the President for tackling this issue at a time when “criminal justice reform” rhetoric has often obscured a discussion of the need for aggressive approaches to criminal violence (including gun violence and drug trafficking, two things that often go together and that are plaguing Chicago).  And there is no question that the federal criminal law provides legal mechanisms for an aggressive federal approach to the kinds of violent crime that Chicago has been experiencing.  But those mechanisms are already at work in Chicago.  Maybe they should be even more robust.  But perhaps the President could be clearer about his federal prosecutorial priorities and his understanding of the Constitution’s limits on enforcing them.

Can the federal felon-in-possession ban violate the Second Amendment?

In District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation.  But the Court was careful to limit that right.  It did not invalidate, the Court explained, restrictions on the commercial sale of firearms, or on possession in sensitive public places, or of “dangerous and unusual weapons.”  Nor did the Second Amendment cast doubt on “longstanding prohibitions” on possession by “felons and the mentally ill.”  Yet, this week, the United States Court of Appeals for the Third Circuit held that in some limited circumstances, as applied, the federal felon-in-possession ban is unconstitutional under the Second Amendment.  The opinion in Binderup v. Attorney General is here.

It is a remarkable holding – no federal court has previously held the felon-in-possession ban unconstitutional – and a deeply divided one.  The en banc court split 8-7, with 3 judges writing the lead opinion and 5 judges in the majority writing separately.  The slip opinions total 174 pages.  Eugene Volokh has a good breakdown of the case here, helpfully discussing the rationales of the different voting blocs.

The case involved two lead plaintiffs who challenged the constitutionality of 18 U.S.C. 922(g)(1), the so called “felon-in-possession” law that makes it a crime for a person to possess a firearm where that person has been convicted of a crime that is punishable by at least a year in prison.  There are some exceptions, such as if a state law punishes the crime by 2 years or less and classifies it as a misdemeanor, or where the conviction has been expunged, or set aside, or where the person received a pardon, or where the person’s civil rights had been restored by law.  See 18 U.S.C. 921(a)(20).

To summarize, according to the court’s description of these cases, Daniel Binderup had a consensual sexual relationship with a 17-year-old co-worker (Binderup was 41).  Although the girl was over the legal age of consent for sex in Pennsylvania, Binderup was nonetheless convicted of the misdemeanor of corrupting a minor.  That offense is punishable by up to five years imprisonment in Pennsylvania.  Binderup, though, received three months probation and a $300 fine.  He has no other criminal history.

Julio Suarez had a previous conviction in Maryland for carrying without a license.  That offense was a misdemeanor, punishable by no more than 3 years.  Suarez received a year of probation, a suspended jail term, and a $500 fine.  He now lives in Pennsylvania, and is a government contractor with a “Secret” security clearance.

Both men are now allowed to possess guns under Pennsylvania law, having successfully petitioned for restoration of their gun rights.  But 922(g)(1) still bars them from possessing guns as a matter of federal law, because none of the statutory exceptions applies to them and the Attorney General did not grant them relief.  So they challenged the validity of 922(g)(1) as applied to them, saying that the ban prohibits them from purchasing firearms for self-defense.  They each prevailed in their respective district courts on their Second Amendment claims, and the cases were consolidated at the Third Circuit.

The entire set of opinions is worth reading, but here is the summary of what is now the law of the Third Circuit, found at page 40 of the lead opinion.  According to the court, first, as-applied challenges to the felon-in-possession ban, under the Second Amendment, are still reviewed under the two-step framework from the court’s earlier decision in United States v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010).  Second, as to the first step, the challenger must prove that the challenged law imposes a burden on his Second Amendment rights.  Third, the challenger must have no convictions involving a serious crime.  Fourth, rehabilitation or likelihood of recidivism is irrelevant.  Fifth, the “considerations discussed above” will determine whether the underlying crimes are serious ones.  And sixth, once the challenger has satisfied step one, then the Government bears the burden of showing that the law survives intermediate scrutiny (a substantial relationship to an important government interest).

Because of the nature of this holding, and its significance to many convicted persons who may wish to own a firearm but are unable to do so, I suspect this may finally be a case in which the Supreme Court has some interest.  I have noted before that the Court’s failure to take any cases since Heller has created substantial confusion among lower courts as to the proper standards to apply in a Second Amendment challenge.  This case has many of the ingredients that should appeal to the Court: it breaks with other federal circuits, was decided by a fractured en banc court, involves a matter of federal constitutional law, and concerns a matter of substantial public importance.

But before we get too excited about this case receiving a cert grant, a caveat is in order.  This holding would not apply, it appears, to felons.  Binderup and Suarez are misdemeanants, not felons, because that is the label that state law gave to their offenses.  As the lead opinion noted, the “misdemeanor” label generally conveys a lack of seriousness, but the same cannot be said of offenses labeled as a “felony,” even if the available term of imprisonment is comparatively short.  This case, then, does not protect those offenders whose crimes of conviction are presumptively serious (as “felonies”), though note 6 of the lead opinion states that such a challenge may at least be theoretically possible after Heller (though the same note also explains that the challenger’s burden in such a case would be “extraordinarily high – and perhaps even insurmountable”).  As to what constitutes “seriousness” (point 5 of the lead opinion’s summary of the law of the circuit), though there was disagreement on the court, the lead opinion also looked to whether the crime was violent or involved force or the threat of force, whether the ultimate sentence was comparatively minor, and whether there is some “cross-jurisdictional consensus” about the seriousness of the underlying conduct.

So the question is open: when, if ever, can a person with a felony conviction have a Second Amendment right to possess a firearm?  That is, which previous crimes are so serious as to warrant the conclusion that the person is not a virtuous enough citizen to be entrusted with the possession of a firearm?

An equally interesting scenario, though perhaps highly unlikely, would exist if Congress considered amending the statute to either more narrowly define the types of offenses that qualify for the ban, or to at least exclude misdemeanors of a certain kind (e.g., those that do not involve force or violence).  One might imagine that a Congress protective of gun rights, and of a broad interpretation of the Second Amendment, might be inclined to narrow the scope of federal gun control laws – and there are few federal gun control laws with more prosecutorial potency than the felony-in-possession statute.  But I suspect that congressional tinkering with the gun possession statutes will not happen, even in this Congress, particularly if Congress feels that federal courts are now in the business of narrowing the reach of the statute through constitutional litigation.

Can medical marijuana card holders buy or possess guns?

Following up on my last post – which dealt with the Ninth Circuit’s decision on the Justice Department’s power to proceed with criminal prosecutions under the Controlled Substances Act, in light of an appropriations rider defunding some such prosecutions – the Ninth Circuit yesterday issued another important decision on federal criminal laws related to drugs, this time in the context of federal gun law.  The decision in Wilson v. Lynch is here.

It is a federal crime for an unlawful drug user or addict to possess a firearm.  18 U.S.C. 922(g)(3).  It is also a federal crime to sell a firearm to a person with knowledge, or reasonable cause to believe, that the person is an unlawful drug user or addict.  18 U.S.C. 922(d)(3).  It is further unlawful to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance (like marijuana).  21 U.S.C. 841(a).

According to the court, Rowan Wilson was issued a Nevada marijuana registry card under Nevada state law.  But when she went to purchase a gun from a gun dealer in Nevada, the sale was denied on the ground that she was an unlawful user, or reasonably believed to be, of a controlled substance.  The seller was aware of the ATF’s Open Letter of September 21, 2011, which instructs firearms licensees that they cannot sell a gun to someone who is an unlawful user, even if state law allows use of medical marijuana.  Wilson filed suit against the Attorney General of the United States and the ATF, challenging the constitutionality of sections 922(g)(3) and 922(d)(3), as well as the Open Letter and the ATF’s implementing regulations (27 C.F.R. 478.11).

The Ninth Circuit held that she lacked standing to challenge section 922(g)(3) because she does not allege that she is an unlawful user or an addict, nor does she allege that she received or possessed a firearm, for which she would be subject to prosecution.  But the Ninth Circuit held that she had standing to challenge section 922(d)(3), because the legal standard under that statute prevented her from purchasing a firearm (and thus she was injured).  So the court proceeded to consider her constitutional claims on the merits.

The leading issue was whether the laws violated her Second Amendment rights.  The Court said it did not.  Binding precedent in the Ninth Circuit holds that the Second Amendment does not protect unlawful drug users.  See United States v. Dugan, 657 F.3d 998 (9th Cir. 2011).  However, the court took it as true that Wilson was not actually an unlawful drug user (she said that although she has a card, she has chosen not to use medical marijuana).  So the court could not apply its precedent as applied to someone like Wilson.

Instead, applying another circuit precedent, United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013),  that adopts intermediate scrutiny under the Second Amendment, the court said that the federal laws at issue did not severely burden the exercise of her right to possess a firearm; they merely prohibited the sale of a firearm to her.  The court further explained that recent research showed a “significant link” between drug use (including marijuana use) and violence, conclusions supported by the legislative branch, as well.  “It is beyond dispute,” the court said, “that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”  The court also said that such users are more likely to have “negative interactions with law enforcement officers” and to be connected to “black market sources who themselves frequently resort to violence.”

So, despite the fact that registry cardholders and unlawful users are not necessarily the same, there is at least a reasonable fit between the federal laws here and the Government’s interest in reducing gun violence.  Even assuming that such laws could lead to some burden on Second Amendment rights, those burdens are minimal, the court held.

The Court also denied Wilson’s challenges based on the First Amendment, the Due Process Clause and the implied equal protection component of the Fifth Amendment, and the Administrative Procedures Act.

One key to understanding the significance of the issues in this case is the court’s assessment of the links between marijuana use and violence.  Although this assessment could have been more comprehensive in the opinion, it is worthy of serious consideration, and undermines many of the arguments made by advocates of more liberal marijuana laws.  Another key, though, is the holding that Wilson did not have standing to challenge section 922(g)(3).  In holding that the challenged laws – 922(d)(3), the regs, and the Open Letter – did not severely burden her core Second Amendment rights, the court relied upon the fact that she could have amassed guns before getting her registry card, and that she could have surrendered her registry card later in order to buy a gun.  See Slip op. at 14-15.  But the point of her challenge was to say that, as long as she is a registry card holder, she now cannot lawfully possess a gun for purposes of self-defense because of section 922(g)(3).  Is it, then, illusory to say that the sale provisions do not severely burden her rights, when she could not lawfully possess a gun anyway?  In other words, Wilson might say, while the sale ban in federal law might not have severely burdened her rights, the possession ban does.  Hence the importance of the finding that she did not have standing to challenge the possession statute.

Although the result may turn out to be the same – particularly if based on the link between drug use and violence and the reasonableness of the Government’s interests in forbidding gun possession by drug users – this question would at least be far trickier for federal courts if it is brought by someone with standing to challenge the possession ban of section 922(g)(3).

What does Trump really believe about gun rights?

As Donald Trump continues to demonstrate his predictable weakness as a presidential candidate, and as he becomes increasingly dogged by abysmal numbers in nationwide and swing state polls, he further confirmed his weaknesses and the claims of his critics yesterday with his remarks about Hillary Clinton, judicial appointments, and the power of the “Second Amendment people.”  Politico story here.  But in spite of all of the (legitimate) furor over these remarks, and others, Trump has actually received a pass from journalists and others on the substance of the Second Amendment.

People like me have tried to show that Trump is weak as a constitutionalist (which is to say, he is not one).  And yet the one provision of the Constitution that he mentions with some regularity is the Second Amendment.  Indeed, yesterday’s incident arose precisely in the context of Trump attempting to persuade the crowd that Clinton’s judicial appointments would be hostile to Second Amendment rights.  So the question necessarily arises: what are Trump’s views on the scope of those rights?  Just how strong of a defender of the Amendment is he?  What, if any, gun controls would he support?  Unfortunately, like all of his other views, it seems, his views on the Second Amendment are utterly incoherent – the stuff of sloganeering and bluster, but unaccompanied by much in the way of substance.  And yet no one seems interested in asking him precisely about his views, as a way of clarifying them, if nothing else.  If Second Amendment rights are as important as he seems to think, should we not have a better understanding of his views on this subject?

Because the Supreme Court held in Heller that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation, only the Supreme Court could reverse that decision and interpret the Second Amendment in some more limited fashion (e.g., that it only protects rights to keep and bear arms when connected to militia service).  And in order to do that, a case would need to arise in which some gun restriction was challenged as violating the Second Amendment.  Now, there are plenty of those kinds of cases out there, though the current Supreme Court seems mostly uninterested in them.  But this raises the question: how would Trump himself – much less his appointees – view the constitutionality of the gun law that would be at issue in such a case?  In order to know that – and the answer to that question could well inform his choice of judges – we would need to know more about how broadly, or narrowly, he views the Second Amendment.  He has never told us, though he claims to be “strong” on the Second Amendment.  In other words, how different really are Trump’s views on gun rights from those of Clinton, and how different would their judicial appointees be on these questions?

For example, does Trump believe that background checks are unconstitutional?  Does he believe that felons and the mentally ill should have Second Amendment rights to keep and bear arms (Heller says they do not: does he agree?)?  What about unlawful drug users?  What about service members who have been dishonorably discharged?  What about persons with misdemeanor convictions for domestic violence?  See Voisine v. United States (Thomas, J., dissenting).  Does he believe that it should be illegal to possess a firearm with an obliterated serial number, or is that unconstitutional?  Does Trump believe that the Second Amendment protects the right of a minor to possess a handgun?

His website demonstrates the incoherence of his views.  There, he claims what at first appears to be a remarkably broad understanding of the Second Amendment, and yet he says we must “enforce the laws on the books.”  What does that mean?  Are none of the “laws on the books” a violation of Second Amendment rights?  If he is willing to “enforce the laws on the books” – there are many – does that not mean that he supports substantial gun controls?  And how, if he does, would that go over with the “Second Amendment people” to whom he regularly panders?  His site also claims that gun and magazine bans are ineffective.  But are they unconstitutional?  What about the federal machine gun ban?

It turns out, these are critical questions for any presidential candidate who claims a belief in expansive Second Amendment rights.  That is because these questions each refer to federal gun laws that the president has the obligation to enforce – unless, of course, they are unconstitutional.  So Trump has a dilemma: if he believes that these laws violate the Second Amendment, surely he must refuse to enforce them and appoint judges who would strike them down, if challenged.  And yet, the president also must appoint the Attorney General, the Deputy Attorney General, the Assistant Attorney General for the Criminal Division, and the various United States Attorneys – all of whom play a role in the enforcement of these very federal gun laws.  So, will Trump’s law enforcement appointees enforce these gun laws (after all, he is the candidate of Law and Order, don’t you know), or will he only appoint people who will refuse to enforce them, on his orders, because the laws violate the Second Amendment?  Will he only appoint judges who declare their view that these federal gun control laws are unconstitutional?

Trump, and groups like the NRA, have tried to make gun rights an issue in the campaign.  (The NRA has this new ad up accusing Clinton of hypocrisy because she is surrounded by armed guards; it’s not clear how that makes her a gun rights hypocrite, as her Secret Service protection is a function of federal law.  Such an ad would make sense if, for example, Clinton acknowledged that she privately possessed a gun for self-protection but opposed allowing others to do so; that would be hypocrisy.  But that is not the NRA’s claim.).  Such a focus might have been useful in the primaries.  But in the general election, how does Trump benefit from an appeal to those with the broadest view of gun rights?  My sense is that those voters are already with Trump and highly unlikely to support Clinton.  He gains nothing electorally by clinging to a near absolutist position on gun rights.  If Trump wants to expand his support, he would be better served by appealing to those who support some gun controls.  But one of Trump’s major mistakes this summer has been assuming that the primaries and the general are indistinguishable.  Perhaps he believes that any expression of support for gun control will jeopardize his position with the most ardent defenders of gun rights in his base – even though he professes a desire to “enforce the laws on the books.”  Hence the incoherence.

Many are penning the first drafts of the Trump campaign’s obituary.  It is easy to see why.  I would be cautious, though.  For all of the pathetic whining that his campaign does about the media, it is hard to imagine a candidate who has ever benefited from media coverage the way that Trump has.  He is where he is today because of the media.  And the media, again, has given him a pass on so many problematic subjects, including his views on gun control and gun rights.  Three months is an eternity in politics, Clinton remains vulnerable, and it is not inconceivable that Trump could close the gap before the debates (more on that later).  So Trump’s electoral problems, while deeply serious now, may not yet be insoluble.  But his knowledge and preparedness problems almost certainly are.