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2. Possession of Firearms

A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release. The Second Amendment to the United States Constitution provides that “[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.” U.S. Const. amend II. Courts,
however, had routinely interpreted the right to bear arms as a right limited to the possession of weapons for certain military purposes. See United States v. Lippman, 369 F.3d 1039, 1043-45 (8th Cir. 2004); United States v. Parker, 362 F.3d 1279, 1282-84
(10th Cir. 2004); Silveira v. Lockyer, 312 F.3d 1052, 1060-66 (9th Cir. 2002); United States v. Napier, 233 F.3d 394, 402-04 (6th Cir. 2000); United States v. Scanio, No. 97-1584, 1998 WL 802060, at *2(2d Cir. Nov. 12, 1998) (unpublished opinion); United States v. Wright, 117 F.3d 1265, 1271-74 (11th Cir. 1997); United States v. Rybar, 103 F.3d 273, 285-86 (3d Cir. 1996); Thomas v. City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (per curiam); United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971); but see United States v. Emerson, 270 F.3d 203, 218-60 (5th Cir. 2001) (holding that Second Amendment protects individual right to bear arms). These courts relied on the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939), holding that

"[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Id. at 178. Indeed, the Supreme Court itself subsequently cited Miller for the principle that “the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’” Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (quoting Miller, 307 U.S. at 178). This all changed with District of Columbia v. Heller, __ U.S. __, 128 S. Ct. 2783 (2008). There, the Court stated that “[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Id. at __, 128 S. Ct. at 2799. It interpreted Miller as holding “only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Id. at , 128 S. Ct. at 2815-16. The Court did acknowledge that “the right secured by the Second Amendment is not unlimited” and noted that

"nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Id. at __, 128 S. Ct. at 2816-17 (footnote omitted). To the extent, then, that the Second Amendment creates an individual right to possess a firearm unrelated to any military
purpose, it also establishes a protectible liberty interest. And, although the Supreme Court has indicated that this privilege may be withdrawn from some groups of persons such as convicted felons, there is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm. Again, the next step in the analysis is to apply the Mathews balancing test. The private interest at stake is paramount: the right to possess a firearm is constitutionally protected. In Heller, the Court made clear that there is no hierarchy of constitutional rights: “[t]he very enumeration of the right takes out of the hands of government –– even the Third Branch of Government –– the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Id. at __, 128 S. Ct. at 2821. The remaining Mathews factors play out much as they did in the analysis of the curfew requirement. First, there is a serious risk that, in the absence of an individualized determination, an accused person will wrongly be deprived of his Second Amendment rights. Indeed, the Government may well find it difficult to articulate a nexus between an accusation of receiving child pornography and the need to prohibit possession of a firearm. Second, providing the defendant with an opportunity to be heard with respect to the appropriateness of this condition would reduce the potential error rate without creating a significant burden. And, finally, the Government’s interest in ensuring the safety of the community would not be undermined by requiring an independent judicial determination of the danger caused by the defendant and the efficacy of the proposed bail condition. Accordingly, the Adam Walsh Amendments violate due process by requiring that, as a condition of release on bail, an accused person be required to surrender his Second Amendment right to possess a firearm without giving that person an opportunity to contest whether such a condition is reasonably necessary in his case to secure the safety of the community. Because the Amendments do not permit an individualized determination, they are unconstitutional on their face. The Government’s application to impose as a condition of bail that Mr. Arzberger not possess a firearm is therefore denied.
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