Heller case cited in SDNY

[ToddG]

http://www.law.com/jsp/article.jsp?id=1202427359812
United States v. Arzberger, 08 Cr. 894
In part:


(Magistrate Judge Francis) said that, until recently, he would not have considered it unreasonable that a defendant be required to surrender a firearm as a condition of pretrial release.

"This all changed," he said, with the recent U.S. Supreme Court decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), where the court changed the course of Second Amendment jurisprudence by creating what he said was a "protectible liberty interest" in the possession of firearms.

Thus, in the absence of an individualized determination at a bail hearing, requiring the defendant to give up any firearms violates due process, he said.

Basically, guy is arrested on child porn charges. There is a law on the book that allows a judge to impose various conditions of release on pre-trial defendants, including §3142 (c) (1) (b) (viii) ("refrain from possessing a firearm, destructive device, or other dangerous weapon;"). The Magistrate hearing this case determined that due to Heller there is a private interest of paramount importance: the right to keep & bear arms.

Now, this doesn't mean it's impossible for a judge to restrict firearms possession during pre-trial release. What it means, however, is that (at least according to this magistrate, whose decision isn't really binding on any other court) the government cannot simply add "no firearms" to a long list of requirements without making an individual determination that such a restriction is appropriate on a case by case basis.

[sjc3081]

It appears Heller is making forward steps in freedoms direction. Even though the circumstances are tainted.

[5pins]

There was also a case in NY where a judge struck down the safe storage law. Apparently this guys wife used his gun to commit suicide and he was charge.

However In Chicago a federal judge upheld the Chicago gun ban.

http://www.gundigest.com/article/chicagowinsaround/

[BAC]

However In Chicago a federal judge upheld the Chicago gun ban.

http://www.gundigest.com/article/chicagowinsaround/

Good. That was a poor lawsuit and relied on the wrong defense. Chicago's gun laws are not a federal issue.


On the topic, I'm not sure what to make of it to be honest. I don't know enough about the role the magistrate plays, or the limits (if there are limits) to conditions set to pre-trial release. I do agree that no rights should be lost until there is a conviction, certainly, but why cite Heller, which had nothing at all to do with this?


-B

[ToddG]

BAC -- Without trying to get into stuff that is more complicated than I should answer without sitting down with law books for specific cites:

Basically, the law as written says that a magistrate can pretty much pick and choose from a list of restrictions without a hearing as a condition of release for someone pre-trial. On the list was a prohibition to possess weapons. The magistrate's point was basically that prior to Heller that seemed fine, but now post-Heller it's clearly interfering with a constitutionally protected right and as such the courts should not strip someone, even a defendant in a child pornography case, of that right without a certain amount of due process.

[Business_Casual]

BAC -- Without trying to get into stuff that is more complicated than I should answer without sitting down with law books for specific cites:

Basically, the law as written says that a magistrate can pretty much pick and choose from a list of restrictions without a hearing as a condition of release for someone pre-trial. On the list was a prohibition to possess weapons. The magistrate's point was basically that prior to Heller that seemed fine, but now post-Heller it's clearly interfering with a constitutionally protected right and as such the courts should not strip someone, even a defendant in a child pornography case, of that right without a certain amount of due process.

I'm asking this out of ignorance - I thought Heller wasn't incorporated (or the 2nd) against the states. Perhaps my phrasing is wrong, but I think my point is valid. Or not, which is why I asked. :confused:

M_P

[ToddG]

m_p -- Excellent question.

The case at bar was a federal case.

[BAC]

Todd, thanks for explaining to me.

Again, that they cite Heller at all means one of two things: they're ignorant concerning the boundaries of the Supreme Court's ruling, or they're simply referencing the main idea of Heller to illustrate a change in major opinions about prohibiting non-felons from keeping (and bearing) arms. The former is exactly why the Chicago case, and California and New York cases, will fail; Heller had nothing at all to do with any of those states and had everything to do with lower federal law that was out of sync with higher federal law. The latter is just as likely, where the magistrate isn't "making a ruling", really, but just expressing an opinion.

I like the magistrate's opinion, but I hope it was formed with the right reasoning.


-B

[Business_Casual]

m_p -- Excellent question.

The case at bar was a federal case.

Ah, RIF. :(

M_P

[SethB]

You're mistaken about the state gun ban cases. They are an attempt to achieve incorporation. As it stands the federal government owes citizens the right and states do not. As such they are not really comparable.