Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some excerpts from the long Third Circuit en banc opinion yesterday by Judge Stephanos Bibas in U.S. v. Bost (for another Third Circuit en banc case decided yesterday that reached the opposite result on different facts, see Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction):
The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality.
asserted
risk → decide → guns
Not every convict poses such a risk—but James Bost does.
asserted
Bost → pose → risk
He pleaded guilty to terroristic threats and other crimes.
asserted
He → plead → threats
Years later, police caught him with a pistol not once, but twice.
asserted
police → catch → pistol
So he was charged with having a gun despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which makes it illegal for felons to have guns….
asserted
felons → charge → guns
But Bost's violent conviction is prima facie enough to disarm him.
asserted
conviction → disarm → him
We hold that some predicate crimes (like Bost's conviction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone….
uncertain
those → hold → convictions
In 2002, Bost carjacked someone, threatening to kill the driver unless she gave him money.
asserted
she → carjack → money
To get that money, he drove to her mother's home, where she escaped from the car, screaming for help.
asserted
she → get → help
Bost was then arrested and pleaded guilty to terroristic threats and criminal conspiracy (as well as false imprisonment and simple assault).
asserted
Bost → arrest → threats
One element of the terroristic-threats crime required "a threat to commit any crime of violence with intent to terrorize another."
asserted
element → require → another
Bost was sentenced to four years' probation.
asserted
Bost → sentence → probation
Later, while on bail for another arrest, Bost failed to appear in court.
asserted
Bost → fail → court
U.S. Marshals tracked him down.
asserted
Marshals → track → him
They found him in his girlfriend's home, next to a couch with a stolen .38 caliber pistol on it.
asserted
They → find → it
Bost was indicted federally for possessing a stolen gun and possessing a gun despite his convictions (based on the terroristic-threats and conspiracy convictions).
asserted
Bost → indict → convictions
He moved to dismiss the indictment, arguing that § 922(g)(1) [the federal bans on felons possessing guns -EV] is unconstitutional as applied to him and that it is facially unconstitutional….
asserted
it → move → him
The court held that the case against Bost could go forward:
The Second Amendment secures the right of "the people" to "keep and bear Arms."
uncertain
Amendment → hold → Arms
Since felons are part of "the people," the amendment protects what § 922(g)(1) forbids—a felon's having a gun.
asserted
felon → protect → gun
So the government must justify this restriction by analogizing to our nation's historical tradition of gun regulation….
asserted
government → justify → regulation
Two years ago, we held § 922(g)(1) unconstitutional as applied to a man with a prior conviction for food-stamp fraud..
asserted
§ → hold → fraud
But we flagged a limit to our holding, stressing that the government had no evidence that Range posed a risk of violence to others or that his crime "[was] closely associated with physical danger."
asserted
crime → flag → danger
That aligned with the Supreme Court's later holding in Rahimi that, under a law banning such people from having guns, someone who poses "a clear threat of physical violence to another" person "may be disarmed." …
uncertain
who → align → person
So § 922(g)(1) is constitutional insofar as it disarms convicts who pose a risk of physical violence from misusing guns.
asserted
who → disarm → guns
Now we ask … how may the law address a risk of violence[, focusing on] … the nature of the restriction imposed, the process used to impose it, and its duration….
uncertain
law → ask → it
One was individualized: A court found someone to pose a risk of physical violence from misusing guns and disarmed him.
asserted
someone → find → him
The other was categorical: A law targeted a disloyal group that risked violence to the community.
asserted
that → target → community
In those instances, a member of the group could often get his rights back by showing that he himself did not pose a risk of violence.
uncertain
he → get → violence
For centuries, disarmament was tied to a judge's finding that someone posed a risk of physical violence from misusing guns.
asserted
someone → tie → guns
Sometimes, that meant punishing risky behavior.
asserted
that → mean → behavior
Going-armed laws punished and disarmed those who used their weapons to menace others.
asserted
who → go → others
Rooted in the old bans on affrays, they targeted conduct that spread fear and threatened the peace: going armed "to the Terror of the People."
asserted
that → root → People
These laws were often enacted with bans on fighting, together targeting conduct likely to lead to violence.
asserted
laws → enact → violence
Other laws, like surety laws, aimed to prevent harm before it happened.
asserted
it → aim → harm
If someone credibly feared that another person posed a risk of physical violence, including by misusing his arms, he could complain to a magistrate.
uncertain
he → fear → magistrate
The magistrate would hold a hearing, weigh the evidence, and decide whether the accused was likely to breach the peace.
asserted
accused → hold → peace
If the risk was real, the accused had to post a bond promising to keep the peace for up to six months.
asserted
accused → accuse → months
If he failed to post it, he would go to jail; if he breached the peace, he would forfeit the bond.
asserted
he → fail → bond
Either way, the restraint was tailored to the person's risk….
asserted
restraint → tailor → risk
To be sure, some laws disarmed categories of people, but these examples are few, fraught, and often discriminatory.
asserted
examples → disarm → people
…and 30 more, not listed.
The Aporia
