Will an individual-right ruling in Heller disrupt criminal law?

They seem to be a bit concerned that it might over at the Sentencing Law and Policy Blog, but I think they are engaging in scare tactics rather than substance.  The Heller case is likely to generate a narrow ruling that overturns the law challenged, while possibly outlining a test for the lower courts to use in other cases.  Since felon in possession laws are not challenged there's basically no chance of them being overturned in this specific case.

Granted, later challenges will almost certainly be filed against other laws.  But it's well established that a felony conviction can legitimately remove or restrict fundamental civil rights, with the obvious example being voting.  I don't necessarily agree with this -- anyone who can't be morally trusted with a gun and ballot probably should be in prison -- but it's pretty well settled law.  I would be surprised if felon-in-possession challenges get taken seriously. 

There does exist a procedure for restoration of gun rights if you can get your felony conviction expunged, and that will probably be counted as sufficient deference to the 2nd Amendment for felons so long as that procedure is funded.  The last I heard it was not funded, though some recent changes to the law might have done something about that.

The other concern is sentence enhancements for gun possession.  There are some applications of this law that probably will be challenged, and probably should be overturned; is it really fair and honest to add 10 years to someone's sentence for being a gun owner while committing some crime that isn't connected to a gun? 

Yet I see no reason to fear for sentence enhancements on crimes actually involving a gun, since there is clearly a rational basis for such.  Threatening to shoot someone is clearly a more serious matter than threatening to beat them up or stab them. 

This entry was published Mon Mar 17 11:52:37 CDT 2008 by TriggerFinger and last updated 2008-03-17 11:52:37.0. [Tweet]

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