Heller Highwater: Second Amendment Protection And The Criminal Law

Doug Berman thinks that the Supreme Court's new gun control decision could wreak havoc for The Man.  In a post yesterday, Doug argues that the Supreme Court's landmark decision in District of Columbia v. Heller might have at least three broader criminal procedural effects: 1) limiting search and seizures in homes when guns provide a basis for further snooping; 2) the rise of Second Amendment waiver warnings in guilty plea colloquies, particularly in jurisdictions that limit felons' access to guns; and 3) increased complexity at trial, including possible "Second Amendment" instructions to juries in drug 'n gun prosecutions.

I'm a skeptic.   As to #2, I don't think that Courts will require Second Amendment waivers any more than they've required felon disenfranchisement or mandatory deportation waivers.  This strikes me as a classic collateral consequence of punishment.  Courts - wrongly, in my view - have been profoundly uninterested in conducting genuinely informed plea colloquies.  In a world where criminal justice is really body management, anything that deters a plea is bad for the industry.  But you know what?  It wouldn't even matter, because who wouldn't trade 3 months in jail - to say nothing of 5 years - for a lil' diminution of civil rights?  (Answer: virtually no one.) 

As to #1 and #3, I think there may be some initial litigation required around these issues.  Depending on whether it is constitutional to license gun possession in the home, police may have to collect more evidence than before on issues like: whose home is it?  But this isn't actually so new.   In cases involving drugs and guns in homes, police routinely collect any evidence that proves residence - so that they can more easily impute possession to those not physically in possession of contraband.  Now they'll confiscate everyone's ID to identify those persons not entitled to claim Second Amendment based privacy.  Only those individuals who actually live in a home would get a jury instruction on their right to possess a gun or have any claim to Second Amendment privacy.   

More importantly, if there's one regulation the Court will likely uphold it's a law criminalizing possession of a gun by those possessing drugs.  Call it a gun safety law, not a gun control law.   Guns + drugs just don't mix!

I agree that criminal defense lawyers will work hard to use Heller.  At the end of the day, however, I suspect  that most legal havoc will come via facial challenges to broad gun regulation.    As criminal defense attorneys have long known, it's very difficult to protect constitutional rights when the constitutional defender is a bad apple.  Yes, the courts have issued various defendant-protective criminal procedure rules over the years.  But notwithstanding these decisions, the facts never seem to quite come out right for the defendant.  Police and prosecutors learn the rules and shape testimony (and, though I'm skeptical, perhaps behavior as well) to meet those rules.  And elected judges have perfected the art of strategic fact-finding - which trumps "the law" almost every time. 

Defense lawyers may have fun with Heller for a while but I suspect that they'll soon discover little to play with, and they'll return to the bread and butter.  Dramatic closings; perilous cross-examination; and of course plea bargain after plea bargain after plea bargain. 

Comments

[Jenny Roberts]

Dan,
I second your comments about how unlikely it is that loss-of-gun-rights warnings will become a part of the information-restrictive plea colloquy (or the counseling leading up to that plea, where defense counsel silence about "collateral" consequences is also currently immune from constitutional attack). Here's what I wrote in response to Doug Berman's post:

I agree that there will be all sorts of interesting litigation in Heller's wake. However, I don't think the right to a warning about loss of Second Amendment rights as part of the plea colloquy is a likely winning argument in the near future, at least not as a constitutional matter. Unlike waiver of the rights to a jury trial and witness confrontation and against self-incrimination, as well any "direct" (penal) consequence, loss of gun rights is going to fall into the "collateral consequences" group, where many severe consequences reside. If there's no right to a warning about automatic deportation for, say, a misdemeanor conviction or to the possibility of lifetime, post-sentence involuntary commitment as a "sexually violent predator" for sex offense convictions, both of which implicate constitutional liberty losses, I don't see how the gun warning would be any different. This is not to say that I agree with the stamp of constitutional approval for silence on these consequences, which certainly matter a lot to many defendants making plea decisions. It's just the sorry state of where things stand, now at least, on a defendant's right to information in the plea process.

[David]

I wrote about this post at the link below and I'd keep you in the loop in case you want to comment.

http://nelawyer.blogspot.com/2008/08/dont-know-why-you-gotta-be-angry-all.html

[Resume Writing Service]

I agree that there will be all sorts of interesting litigation in Heller's wake. However, I don't think the right to a warning about loss of Second Amendment rights as part of the plea colloquy is a likely winning argument in the near future, at least not as a constitutional matter.

[seoreseller.com]

I agree that criminal defense lawyers will work hard to use Heller. At the end of the day, however, I suspect that most legal havoc will come via facial challenges to broad gun regulation.