December 2012

In light of recent events, gun control is the subject of discussion. My practice touches upon guns. Generally it arises in the context of clients who have been accused or convicted of being felons in possession of a firearm or of being in possession of a weapon during the commission of a crime. I have defended a client, with a previous domestic violence charge (without a conviction) in his application for a concealed weapons permit. However, I thought it time to inform myself because I have read uninformed publications (newspaper editorials) and postings (Facebook news feed) on the Second Amendment. This post will consider how far gun control legislation could go without running afoul of the United States Constitution. It leaves for another day the values at stake and the efficacy of such legislation. It ultimately attempts to answer the question of the extent to which the debate about gun legislation is Constitutional in its nature.

The Short Answer

The real answer is found in the Second Amendment: “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.”

We could stop there technically. The difficulty is that the language is archaic. And the meaning is as debated as much as certain scriptures are debated.

The Supreme Court’s Answer

There is not a full answer from the Supreme Court. Gun legislation, though the subject of a perennial discussion, has infrequently been taken up by the United States Supreme Court. The Bill of Rights was long thought to be a check on Federal power only, and States did not attempt to pass gun control legislation through much of the nation’s history. The Second Amendment has not been tested as much as the Fourth Amendment, the First Amendment, of the Sixth Amendment.

For the most comprehensive answer about the meaning of the Second Amendment, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) is the one place to go.

The Statute at Issue in Heller

D.C. passed a statute making it illeal to possess an unregistered handgun and which prohibited the registration of handguns. And no person could carry a handgun without a license; licenses had to be renewed yearly. Plus, any lawfully owned firearms were to be kept “unloaded and dissembled or bound by a trigger lock or similar device unless located at a business or in use for lawful recreational activities.”

The Decision in Heller

This statute almost squeaked by. It was struck down, but only by a slim 5-4 margin, with Justice Scalia writing for the majority. And, even there, the yearly licensing requirement was affirmed.

The majority opinion and the dissent include dense historical information for the context of the Second Amendment. If you really want to be informed, I commend it to you. I’m going for the short answer here.

  • The statute at issue was struck down because it prohibited “an entire class of ‘arms’ that is overwhelmingly chosen by American society for [self-defense].”
  • However, the Court also recognized that “the rights secured by the Second Amendment is not unlimited.”
  • The State may prohibit the possession of firearms by a felon or the mentally ill. And the State may forbid them in sensitive places such as schools and government buildings. And it may regulate the commercial sale of arms.
  • It is permissible to impose a yearly licensing requirement to possess handguns.
  • The Court specifically noted that “the enshrinement of constitutional rights does not necessarily take certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

Congress and the States have a broad number of tools available to them that would pass Constitional muster. Those tools could go as far as the getting rid of self-defense as an affirmative defense, a ban on certain classes of long guns, a ban on long guns altogether, a ban on certain classes of handguns, the requirement of extensive background checks, a mental health examination as a prerequisite to purchase, a ban on the sale of guns if a felon, mentally ill person, or person who could not be licensed lives in the home. Gun buyback programs would be constitutional. As would any number of other very regulatory actions. Licenses to possess as well as conceal are constitutional. And it is likely that a six-month renewal requirement would be upheld.

As you engage in debate and read or watch the debates of others on the subject of guns, it is important to know that this debate is largely one of policy and competing values. Unless the proposed solution goes at least as far as D.C. tried to go in Heller, the debate is likely not a constitutional one. And the 5-4 vote could easily shift to a 4-5 vote in the coming years.

A recent Georgia Supreme Court case on jury selection provides a framework for determining what a case’s subject matter is. There is a fine line between asking juror to prejudge the facts and figuring out if jurors cannot be fair. A few words about the problem in the case first. Full disclosure, I was amicus counsel on this case.

Defendant Ellington was on trial for his life in an indictment alleging that he had murdered three people. Though not mentioned in the indictment, two of the three victims were young children. Mr. Ellington was not charged with any offenses, such as cruelty to children, that would have otherwise revealed age. The defense wanted to discover which jurors would be unable to consider a life sentence for a man convicted of killing a child victim. The State argued that, since age was not disclosed in the indictment, this case was not “about” children. And, since the victims’ age would be developed as the facts were presented, it was not proper to ask the jury to pre-judge the facts. On the one hand, it is entirely proper to find out if jurors could not consider the facts and apply them to the law. On the other, it is not proper to pose hypothetical facts to jurors and ask them how they would decide the case based upon those facts.

The Court acknowledged that children are different. In federal death penalty cases, the youthfulness of a victim is an aggravating factor. And it is a factor in at least thirteen states. Our basic instinct is to protect children. That instinct is codified in law and in the rules of evidence. Within a minute of the beginning of the State’s opening statements, the State made age a theme. And it was a theme in closing as well.

The holding and the broader lesson.

The holding is arguably narrow. But the lesson to take from the reasoning is broad. At the very least the holding is that, in a death penalty case where children are the victim, it is appropriate to ask jurors whether they could consider the possibility of a life verdict. In the broader sense, the reasoning is that cases are about more than what is plead in an indictment.

Whenever there are facts in your case that would inherently bias jurors, it is important to ask about it in voir dire.

  • In DUI or drug cases, it is important to ask jurors about experiences with alcohol and drugs. It is a rare family that hasn’t been touched by addiction. And it is reasonable to expect that some jurors aren’t qualified to sit in those kind of cases.
  • The age of the defendant may bias some jurors.
  • There may be certain types of crime where jurors cannot possibly be fair. A person who owns a retail store may not be an appropriate juror in a shoplifting case.

As you prepare for voir dire, consider what things about your case could be a problem for certain jurors. Then craft questions designed to find out who those jurors are. Anticipate that opposing counsel will object and say that you are asking jurors to prejudge facts. Prepare your response using the language in Ellington. And keep in mind that a case is often about much more than the language contained in the indictment.