Supreme Challenge? Judge Calls Out Scalia Over Heller Language

[WSJ_law_blog]

Anyone who follows the Supreme Court could have predicted that the Supreme Court’s Heller opinion from 2008, in which the court found that Washington D.C.’s gun control law ran afoul of the Second Amendment, would give lower courts, lawyers and legal academics much to chew on in years to come.

Already, for instance, courts have wrestled over whether the ruling would apply to the states — a potentially significant barrier to those looking to extend Heller’s reach throughout the land.

But it seems a Tenth Circuit judge, Timothy Tymkovich, a George W. Bush appointee, has stumbled over what might be viewed as a loose thread in the opinion itself — and he penned his thoughts in a concurring opinion filed on Tuesday.

Let’s explain. In one part of the majority opinion in Heller, Justice Scalia stated the following piece of dicta, that “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons…”

Why would Scalia write such a line? According to Scotusblog, “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.”

The Tenth Circuit case involved an individual in Oklahoma City who was arrested in 2007 while driving with a suspended driver’s license. During the search of the car, the police found a loaded firearm. The defendant was charged with the federal crime of being a felon in possession of a firearm, described by Scotusblog as “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 Tenth Circuit upheld the possession conviction, rejecting the defendant’s Heller-based argument, relying heavily on Justice Scalia’s dicta.

In any event, Judge Tymkovich called into question this language in his concurrence on Tuesday.

“I write,” wrote Tymkovich, to express concern that the dictum inhibits lower courts from exploring the contours of Heller and its application to firearm restrictions.”

Tymkovich continues:

Knowing the meaning of the Second Amendment right and having identified its individual nature, the issue becomes what limits the government may place on the right. Indeed, this is where the Second Amendment rubber meets the road. The restrictive firearm ownership and licensing laws at issue in Heller violated the right, the Court found. . . . But what about other laws? For example, the broad scope of [the felony possession law] which permanently disqualifies all felons from possessing firearms—would conflict with the “core” self-defense right embodied in the Second Amendment. Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons.

. . .

Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court’s clear direction, this is perhaps how it should be. After all, “our job as a federal appellate court is to follow the Supreme Court’s directions, not pick and choose among them as if ordering from a menu.” . . . I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.

Wow. Them’s some pretty serious words to throw up the ladder at the Supreme Court.

In any event, according to Scotublog:

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.

Huh. Is it possible we could see a review of Heller (or at least one section of it) back on the Supreme Court’s docket before long? (For more on this, check out Eugene Volokh’s take over at Volokh Conspiracy.)