Well, duh
The 9th Circuit ruled that Possession of an “Assault Weapon” Isn’t a “Crime of Violence”. But a few notes:
On the other hand, if we know that an object has no lawful uses, we can presume that someone who possesses it intentionally does so for the purpose of using it illicitly. And, if the universe of uses for such an object is largely confined to illegitimate violence, we can infer that the object will be used to intimidate or inflict physical injury during the course of an unlawful transaction. We have thus held that illegal possession of such a weapon — like a silencer or a sawed-off shotgun — is a crime of violence. What distinguishes silencers or sawed-off shotguns from other dangerous firearms isn’t the amount of injury they’re capable of inflicting — there are many weapons that can cause a lot more injury than a silencer. What makes silencers and sawed-off shotguns different from ordinary weapons is that they have few, if any, legitimate uses. Unlike an ordinary firearm, neither is likely to serve any sporting or self-defense purpose. Thus, we have held that they “are inherently dangerous, lack usefulness except for violent and criminal purposes and their possession involves the substantia risk of improper physical force.” We must determine, therefore, whether an assault weapon is more like an ordinary firearm, or more like a silencer or sawed-off shotgun.
Congress requires registration of any silencer, sawed-off shotgun or similar firearm. Failure to register a listed firearm is a crime punishable by up to ten years is prison. The registration requirement reflects Congress’s determination that certain weapons are almost certain to be used for unlawful purposes: “[T]he primary reason that unregistered possession of these particular weapons is a crime is the virtual inevitability that such possession will result in violence.” As the Seventh Circuit put it, “most firearms do not have to be registered — only those that Congress found to be inherently dangerous. If the weapon is not so labeled, mere possession by a felon is not a crime of violence.” Congress has never imposed a blanket registration requirement on semiautomatic weapons, suggesting that they have lawful uses and are less likely to lead to unlawful violence than sawed-off shotguns and silencers.
Suppressors and sawn-off shotguns serve many legitimate uses. Both are still legal to possess, at least at the federal level. Suppressors, for example, are used quite extensively in other countries as effective hearing protection and for varmint control in places where the crack of a gun shot may cause alarm. Additionally, sawn-off shotguns are quite effective home defense weapons. I find their argument unconvincing with respect to those two items.
More interesting, the ninth on the so-called assault weapons ban:
When Serna was convicted of possession of an assault weapon in 2002, possession of some semiautomatic weapons was a federal crime — but no longer. Thus, non-felons can now freely possess assault weapons under federal law. Even before the federal ban was allowed to lapse, it was riddled with exceptions: Congress exempted any firearm lawfully possessed under federal law before the passage of the act, and over 650 specific firearms. Thus, a large number of semiautomatic weapons remained legally in circulation, even during the so-called ban.
In the end, the temporary federal ban on assault weapons is largely a wash. The most plausible inference to be drawn from the evolution of federal law as to assault weapons is that Congress allowed the ban to lapse, having found it unnecessary. Because current federal policy places assault weapons on the same footing as other non-registrable weapons, we see this, on balance, as supporting Serna’s position. We find more significant the fact that, when the federal assault-weapon ban ended, Congress didn’t require previously-banned semiautomatic weapons to be registered. The fact that semiautomatic weapons are not now, nor have ever been, subject to a blanket registration requirement suggests that mere possession of them does not pose the same risk of physical injury as possession of weapons subject to a blanket federal registration requirement — like silencers and sawed-off shotguns.
Supposedly, the most liberal court in the land referred to the expired ban as a so-called ban. And implied it was thought to be unnecessary. Ouchie.
January 26th, 2006 at 12:49 am
Whoa, Nelly. The author of that opinion, Alex Kozinski, is far from a liberal. Quite the contrary; he’s a hard core supporter of the Second Amendment, and authored an opinion in the Tenth Amendment machine gun case of USA v. Stewart that was substantially identical to Judge Alito’s famous/infamous dissent in that other case. Ferdinand Fernandez ain’t much of a leftie, either, having dissented in the original Michael Newdow Pledge case. There’s your non-liberal majority, right there (don’t know about Judge Hatter).
January 26th, 2006 at 7:27 am
I’m aware that kozinski is far from liberal. But people usually don’t say ‘knozinski’ ruled, they say ‘this court’ ruled. But that court is often often called the most liberal (and the most overturned).
January 26th, 2006 at 11:08 am
I was reading the part about silencers and so-shotguns thinking; “Those have valid, non-criminal uses. WTF is this guy writing about?”
— I was glad to see your comment in the middle there.
What I find most interesting, though, was that this decision was “readable”. Most legal opinions are so chock full of legal gobble-de-gook that I need to look up half the terms. This just flowed like a well-written term paper.
That should be a requirement – all legal decisions should be understandable by citizens with a high-school education. heh.
January 26th, 2006 at 1:05 pm
The circuit is often called the most liberal, but that all depends on the luck of the draw. Any time Kozinski and Fernandez’s names come up (and they’re not the only ones), it instantly morphs into one of the most conservative circuits. When discussing the circuit generally, rather than a given panel specifically, the “biggest, most unwieldy circuit” is probably more like it.
The “most reversed” line is a bit misleading, too, as that figure is based not on all cases rendered by the circuit, nor even the fraction appealed to the Supreme Court, but only on the tiny, highly-skewed sample that the Supremes decide to rule on.
January 26th, 2006 at 1:52 pm
Kozinski certainly can write, and he is definitely conservative. His opinion of sawed off shotguns and silencers is uninformed – but since the case wasn’t about them, no one presented evidence of legal and proper uses for them. I don’t recommend anyone getting themselves prosecuted for possession of a sawed-off shotgun, but I rather think that if the case was about one, and the defense brought in a weapons expert to explain how a short-barreled weapon was better for home defense, Kozinski would learn from it and change his opinion. (Also bring in some old soldiers to present the evidence that Miller didn’t present in the 1930’s – that sawed-off shotguns are used for some military operations. Contrary to the way liberals keep trying to misread it, the Miller decision says that Miller had the individual right to keep and bear individual military arms, but no evidence had been presented that his sawed off shotgun qualified.)
January 26th, 2006 at 3:43 pm
markm, not sure if it’s uninformed so much as bound by a flawed precedent.
January 27th, 2006 at 1:28 pm
It would be an interesting experiment if several people were to write to Kozinski explaining the issue of silencers or so-Shotguns.
Would it change his legal opinions?
I doubt it. He probably compartmentalizes what he knows and believes in his personal life with what he is allowed to consider within a court case. Which – me thinks – is a difficult thing to do. And probably the difference between a good judge and a Liberal one. 🙂