Analysis
As Justice Antonin Scalia was preparing the Supreme Court’s opinion last year declaring a personal constitutional right to have a gun for self-defense, he may have needed to put in a cautionary word to hold his five-Justice majority — an indication to make the decision seem somewhat less sweeping. That could account for this statement in District of Columbia v. Heller: “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons…”
But, a lower federal court judge has now suggested that the Court perhaps should not have gone that far. Tenth Circuit Judge Timothy M. Tymkovich, in an opinion issued Tuesday, expressed “concern that the dictum inhibits lower courts from exploring the contours of Heller and its application to firearms restrictions….I…wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.”
The judge’s comments came in a concurring opinion as a three-judge panel decided a case involving an individual convicted of being a felon who illegally had a gun — a specific crime that the Heller dictum would seem to have left unaffected by the Second Amendment declaration of a personal right of self-defense with a gun.
The ruling came in McCane v. U.S. (Circuit docket 08-6235), found here. (Thanks to Howard Bashman of How Appealing blog for the alert to Judge Tymkovich’s opinion and to the case.)
Lawyers involved in the case said Wednesday that they plan a further challenge to the Circuit’s ruling, either by asking for en banc review by the Circuit, or taking the case on to the Supreme Court — a choice they have not yet made. Aside from the Second Amendment point, the lawyers are troubled by another part of the McCane opinion, apparently expanding the so-called “good-faith” exception to the “exclusionary rule” to excuse a constitutional violation by police. (See the discussion near the end of this post.)
Judge Tymkovich noted that six other Circuit Courts have rejected constitutional challenges to the federal law making it a crime for a felon to possess a gun. “Almost all these decisions cursorily cite the Heller dictum, and almost all are unpublished,” he wrote.
That, he indicated, appears to be the consequence of the Supreme Court’s having chosen to drop into its opinion a comment on gun restrictions not at issue in Heller. “Rather than seriously wrestling with how to apply this new Second Amendment rule,” Tymkovich commented, “courts will continue to simply reference the applicable Heller dictum and move on.” Perhaps, he added, that is what the Supreme Court intended with its “clear direction,” even in dicta.
Still, the judge lamented this development, saying that the volunteered qualification in Heller “short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts.”
The judge also suggested that, having based the Second Amendment right on a right of self-defense, the Court then went on to undercut that right for any felon, whether or not that person’s prior felony was a violent or non-violent crime. “Non-violent felons…certainly have the same right to self-defense in their homes as non-felons,” Tymkovich wrote. The federal law, he noted, permanently disables any felon, even one convicted previously of a financial fraud or perjury, from ever exercising the very Second Amendment right that Heller created. “One wonders,” he mused, “whether the Heller dictum has swallowed the Heller rule.”
Tymkovich’s critique, however, goes further, and directly questions the basic premise of the dictum: that is, the notion that barring felons from having guns was a ban of “longstanding.” The history of “felon dispossession laws,” the judge said, is not as clear-cut as the Court’s opinion suggested. While some sources would support that perception, he said, “more recent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities….These authorities cast doubt on a categorical approach to felon dispossession laws.’
In the McCane case itself, an Oklahoma man, Markice Lavert McCane, challenged his conviction for violating the federal felon dispossession law by arguing, among other points, that the law was unconstitutional under the Heller decision. Apparently feeling bound by the Heller dictum, the Circuit Court panel summarily rejected that argument, prompting Judge Tymkovich to explore it separately.
In another facet of the panel decision, it ruled that police seizure of McCane’s .25-caliber gun from his car after stopping the vehicle for a traffic violation was unconstitutional under the Supreme Court’s decision in April in Arizona v. Gant, but that the violation was excused by “the good-faith exception to the exclusionary rule.”
That exception dates from the Supreme Court’s 1984 ruling in U.S. v. Leon. In that ruling, the Justices based the refusal to exclude improperly obtained evidence because the police had relied in good faith upon a court-approved warrant (even though that warrant was later ruled invalid). In a 1978 decision, Illinois v. Krull, the Justices extended the exception to reliance by police on a law that later was declared unconstitutional. And, in Arizona v. Evans (1995) and Herring v. U.S. (last January), the Court applied the good-faith exception to police mistakes in consulting official records.
In the McCane case, however, the Tenth Circuit refused to exclude evidence about McCane’s gun possession not because police had relied upon a flawed warrant or a flawed statute or faulty official records, but because police had relied on “settled case law” of the Tenth Circuit, later found invalid by the Supreme Court in Gant.
“A police officer who undertakes a search in reasonable reliance upon the settled case law of a United States Court of Appeals, even though the search is later deemed invalid by Supreme Court decision, has not engaged in misconduct,” the Circuit panel concluded in McCane. “Relying upon the settled case law of a United States Court of Appeals certainly qualifies as objectively reasonable law enforcement behavior.”
That part of the Circuit Court ruling appears to be in conflict with a 2003 ruling by the Seventh Circuit Court, in U.S. v. 15324 County Highway E. (The Tenth Circuit said the two cases are distinguishable.)
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