By Eugene Volokh
May someone be barred from possessing a gun simply because he has been indicted for a felony? The U.S. Attorney’s office for the Southern District of Alabama so argues. Here’s their entire argument (citations to Heller omitted):
In Heller, the Supreme Court held that the Second Amendment provides an individual with a right to possess and use a firearm for lawful purposes, such as self-defense within the home. However, the Supreme Court also made clear that “the right secured by the Second Amendment is not unlimited.” The Supreme Court emphasized that “nothing in [its] opinion should be taken to cast doubt on the longstanding prohibitions of possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.[” These] regulatory measures provided by the Court were intended as examples of constitutional restrictions to the right guaranteed under the Second Amendment, and were not intended to be an exhaustive list. Thus, like other constitutional rights, the individual right protected by the Second Amendment is not absolute, but is subject to appropriate restrictions.
Restricting the ability to possess firearms by an individual under indictment for a crime punishable by imprisonment for a term exceeding one year is a constitutional restriction of that individual’s Second Amendment right. Nothing in Heller, or any subsequent binding opinion, suggests otherwise.
I think this argument is unpersuasive: That the Second Amendment right is not unlimited doesn’t tell us what the permissible limitations are, and that the Court specifically authorized restrictions on gun possession by felons and the mentally ill doesn’t tell us how the Second Amendment should be read with regard to people who are neither felons nor mentally ill. The argument gives no explanation for why people under indictment should be analogized to felons and the mentally ill.
And indeed, an indictment is a very different matter from a conviction, or even a finding in a temporary restraining order hearing. (Lower courts have concluded that the federal ban on gun possession by people who are under temporary restraining orders is unconstitutional, partly because the orders are supposed to be based on a preponderance-of-the-evidence finding that the target has engaged in violence or threat of violence, or seems likely to engage in it.) An indictment requires no finding of guilt beyond a reasonable doubt, or even by a preponderance of the evidence. Rather, it requires only (1) a prosecutor’s seeking the indictment, and (2) the grand jury concluding that there is probable cause to believe the defendant is guilty of the charged crime, based solely on the prosecutor’s statement of the incriminating facts, without hearing any exculpatory evidence or hearing from the defendant’s side at all. That’s all it takes for an indictment; and I don’t think that can be enough to deny the defendant a constitutional right.
Maybe an indictment plus a judicial finding of dangerousness, following an adversary hearing, might suffice; I can’t speak to that, though I should note that an indictment plus a judicial finding of sufficiently great dangerousness, following an adversary hearing, does suffice for denying the defendant bail and keeping him locked up for trial. But an indictment alone shouldn’t be enough. Nor can the prohibition be saved on the grounds that the indictment is only temporary, since the defendant will usually soon be either convicted or acquitted (or have the charges dropped against him). Denying someone the tools needed for effective self-defense for several months is still a substantial burden on the right to self-defense.
This having been said, I should note that lower courts are split on the subject. Two courts have held that a mandatory no-firearms condition for pretrial release of people accused of possessing child pornography was unconstitutional, in the absence of “an independent judicial determination” of “whether such a condition [was] reasonably necessary in his case to secure the safety of the community.” See United States v. Arzberger, Nos. 08 Cr. 894 (AKH), 08 Mag. 1876 (JCF), 2008 WL 5453739, at *10–11 (S.D.N.Y. Dec. 31, 2008), and United States v. Kennedy, No. CR08-354-RAJ-JPD, 2008 WL 5517643 (W.D. Wash. Nov. 25, 2008). On the other hand, two cases applying state constitutional rights to keep and bear arms have taken a different view, with regard to laws generally banning gun possession by people under indictment for any felony. See State v. In, 18 P.3d 500, 503 (Utah Ct. App. 2000), and State v. Winkelman, 442 N.E.2d 811 (Ohio Ct. App. 1981), though the latter case , upheld a ban on gun possession by people who have been indicted, though noting that it imposes only a “temporary limitation,” with provision for relief “[s]hould the temporary limitation work an undue hardship upon the indicted party”). Splitting the difference, State v. Spiers, 79 P.3d 30 (Wash. Ct. App. 2003), struck down a ban on ownership of guns while under indictment, but partly because other laws that allowed a ban on possession of guns under those circumstances were “sufficient to protect public safety”:
It should be kept in mind that, separate from the challenged ownership provision, the State may prohibit a defendant from possessing guns. RCW 9.41.040(1)(b)(iv) (contains prohibition on possession that is unchallenged here); CrR 3.2(d)(3) (on showing that defendant poses substantial danger). Thus, in analyzing Spiers’s rights, this court examines whether it is reasonably necessary to prohibit Spiers’s gun ownership rights in addition to his gun possession rights.
But while the first cited provision covers anyone “free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in RCW 9.41.010,” Wash. Rev. Code Ann. § 9.41.040(1)(b)(iv) (West 2003) (current version at Wash. Rev. Code Ann. § 9.41.040(2)(a)(iv) (West Supp. 2009)), the second is limited to situations where there is “a showing that there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice,” Wash. Sup. Ct. Crim. R. 3.2(d)(3) (West Supp. 2009). It is therefore not clear to what extent the Spiers court approved of bans on possession by all indictees, only by those indicted for serious offenses (a fairly large category defined in Wash. Rev. Code Ann. § 9.41.010(12) (West 2003), which covers both violent offenses and some nonviolent offenses), or only by those who “pose substantial danger.”