Felons Convicted of Crimes of Violence Are Categorically Excluded From Scope of Second Amendment Protection.

State v. Craig, Minn.S.Ct., 2/27/2013.  The is the Second Amendment challenge to ineligible person (felon) in possession of a gun, about which I wrote here.  The court of appeals had rejected Mr. Craig’s Second Amendment challenge under an intermediate level of scrutiny which looks to see if the statute is “substantially related to an important governmental objective.”  The Supreme Court, Justice Dietzen writing for the court, (absent Justice Wright) affirms the court of appeals but on different grounds.  Justice Dietzen said that you get to the level of scrutiny question only when the person has Second Amendment protection.  Because Mr. Craig does not have such protection the level of scrutiny answer awaits another day.

Justice Dietzen reviewed the two U.S. Supreme Court Opinions that matter, District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010).  Heller said  that the Second Amendment guaranteed an individual right to keep and bear arms unconditioned on service in a militia.  McDonald, said that that right is applicable to state and local governments.  To get there, the Court had to say that this right was  “fundamental to [the American] scheme of ordered liberty.”  So it did.  Or, at least, the plurality did.

Having said that, however, the Court then carved out some “presumptively lawful regulatory measures” that are not prohibited under the Second Amendment, like keeping guns away from felons.  Mr. Craig said that all this “presumptively lawful regulatory measures” stuff was pure dicta; Justice Dietzen said he didn’t have to rise to that bait because he and the Court liked the idea anyway.

Federal court that have considered facial challenges have rejected them, concluding that a felon has no Second Amendment right to posses a firearm.  Circuits 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 have reached this conclusion.  These courts said that Heller’s list of presumptively lawful exceptions establishes persons – felons among them – who are categorically outside the scope of the Second Amendment protection.  End of discussion.

Four circuits have considered “as applied” challenges.  Those court have said that a felon must present specific facts that distinguish his or her conviction from the convictions of other felons who are categorically unprotected by the Second Amendment.  Those courts utilized different approaches to determine whether a particular felon has presented such distinguishing facts.  Justice Dietzen throws in with some sort of “the Second Amendment as historically understood” construct, which is as broad as it is wide, which he boils down to felons convicted of a “crime of violence.”  This leaves Mr. Craig out because his disqualifying conviction – Drugs V – is a statutory “crime of violence”.  There is also, says the Court, a “substantial nexus” between drugs and violence.  Also,felons who have been convicted of a crime of violence are also more likely to reoffend and to do so in a way that threatens public safety.  The court’s source for these rather sweeping conclusions is almost exclusively case law.

Having cut Mr. Craig out entirely from those who may claim Second Amendment protections it was unnecessary to decide what level of scrutiny might apply.