TriggerFinger


Lewis v United States (as applied in Parker)


Lewis v United States concerns a defendent who was convicted of a felony without the representation of counsel, and was subsequently charged with being a felon in possession of a firearm.  He argued that the prior conviction, being obtained against him without benefit of legal counsel, was not valid and could not be a predicate for the offense of firearm possession.  The defendent lost his challenge, but the court ruled narrowly, noting that convicted felons could expunge their convictions before obtaining a firearm.
The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some `rational basis' for the statutory distinctions made . . . or . . . they `have some relevance to the purpose for which the classification is made.'" Marshall v. United States, 414 U.S. 417, 422 (1974), quoting from McGinnis v. Royster, 410 U.S. 263, 270 (1973), and Baxstrom v. Herold, 383 U.S. 107, 111 (1966). See Vance v. Bradley, 440 U.S. 93, 97 (1979).[8]   [445 U.S. 55, 66]
The second amendment commentary comes in the footnote.
[Footnote 8] These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to [445 U.S. 55, 66]  the preservation or efficiency of a well regulated militia"); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three cases holding, respectively, that 1202 (a) (1), 922 (g), and 922 (a) (6) do not violate the Second Amendment).
I'm not sure how favorable this cite is, aside from reinforcing the notion that Miller dealt with "firearm[s]" that had a reasonable relationship to the preservation or efficiency of a well-regulated militia, rather than "people" having that relationship.  While the language is correct for that inference the citations don't look terribly promising, as they are upholding some of the significant gun control laws.  I'll have to look at the cases before feeling comfortable about citing this.  For now, let's not forget that the Parker attorneys presumably did and felt it was worth it.

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This entry was published Thu Jul 13 22:26:33 CDT 2006 by TriggerFinger and last updated 2006-07-13 22:26:33.0. [Tweet]

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