Southern California Defense Blog

Why You Need an Experienced Criminal Defense Lawyer on Your Side

The Ninth Circuit Court of Appeals recently overturned a first degree murder conviction in US v. Begay (2009 DJDAR 7955). Begay was convicted of two counts of first degree murder and two counts of using a firearm during a crime of violence. The District Court imposed mandatory concurrent life sentences for each murder conviction as well as 35 years for the firearm convictions. However, the Ninth Circuit overturned the first degree murder convictions on the ground that the government failed to introduce evidence sufficient to show premeditation—an essential element of first degree murder.

The Begay court outlined premeditation as requiring a showing that the defendant had the time to reflect on the decision to commit murder, that he in fact did reflect on that decision, and that he committed the murder with a “cool mind” after having engaged in such reflection. The Begay court further explained that the element of premeditation is typically established through three categories of evidence: how and what the defendant did prior to the actual killing; the defendant’s prior relationship and conduct with the victim; and facts about the nature of the killing.

With the above three categories in mind, the court systematically spoiled the government’s trial court arguments. Citing to the record, the Begay court stated that the government “doesn’t know what that reason [for the crimes] is…” The court further stated that the record contains no hint of information from which any person could determine why theses murders occurred. Similarly, the court referenced the government’s assertion that “there was no evidence of any prior connection between the defendant and the victims” and that, while the evidence of motive or prior relationship between the defendant and the victim may not be necessary to show premeditation, the lack of such evidence certainly does not support a finding that premeditation exists.

The Begay court was especially critical of the government’s assertion that the defendant’s possession of a weapon constituted the necessary proof of premeditation. “The mere fact that an individual has in his possession a weapon does not support premeditation if the weapon is one that he routinely uses for lawful, non-violent purposes.” In this case, the record reflected that Begay routinely used the gun for recreational purposes. The court held that possession of the firearm alone is not enough to support premeditation.

Perhaps even more surprising was the Begay court’s declaration that despite the defendant being “pretty drunk” at the time of the shooting, his practice and experience with the weapon used during the shooting, and the fact that he was only three to four feet away from the victim when firing, the defendant missed a number of times—suggesting agitation, excitement, or frenzy, not the “cool mind” of premeditation. Adding more, the court stated that the violence of multiple wounds, while more than ample to show an intent to kill, cannot by itself support an inference of a calmly calculated plan to kill. The court concluded that any determination as to premeditation would necessarily be speculative in nature.

Continue reading "Defendant Convicted of First Degree Murder Has Sentence Overturned Based on Insufficient Evidence" »

On March 7, 2006, Tony Wagner and his friend, Scott lamb, went into a residence occupied by Jerry Jackson in the city of Hemet, California, which is located in Riverside County. They were accompanied by Jackson’s ex-girlfriend, Celeste Trzepacz, who wanted to get her dog back form Jackson. After an exchange of words, Lamb and Jackson got into a fistfight. According to Trzepacz, prior to the fight, Lamb removed a handgun from his waistband and handed it to Wagner. Trzepacz went inside the residence and, while inside, she heard three gunshots. When she came back out of the house she saw that Jackson had been shot and was on the ground. He had gunshot wounds to both knees. Trzepack believed that Wagner was still holding the gun. Wagner was interviewed by the police and he initially denied being present. He eventually told police that he shot Jackson but claimed that Jackson was coming toward him.

On March 23, 2006, Wagner was charged by the Riverside County District Attorney’s office with one count of assault with a semiautomatic firearm along with additional allegations and enhancements alleging that he personally used the firearm and that he inflicted great bodily injury. Mr. Wagner’s case slowly crept through the criminal justice system in Riverside and it was finally set for trial the day before the Defendant’s constitutional speedy trial rights would have been violated. On that day the trial court Judge, Helios Hernandez, concluded that there were no available courtrooms in all of Riverside County to hear Mr. Wagner’s case and the case was dismissed the following day despite strenuous objections from the District Attorney’s office. The District Attorney’s office then appealed the decision to dismiss the case.

On appeal, the District Attorney’s office argued that the Trial Court erred by dismissing the case because it improperly failed to give priority to this case over other civil cases in its effort to locate a courtroom. The DA also argued that the court erred by failing to conclude that court congestion and mismanagement constituted good cause to continue the case.

Continue reading "Serious Criminal Case Dismissed in Riverside County Due to Lack of Courtrooms" »

A 45-year-old Orange County man was sentenced to 17 years imprisonment for possessing homemade explosive devices with the intent to kill his former wife, her divorce attorney, the family court judge and Huntington Beach Police Department officers. The Costa Mesa resident was ultimately charged with a laundry list of offenses, 15 felony counts in all, including stalking, possession of a destructive device with intent to injure, possession of a homemade deadly weapon and possession of a loaded firearm in public.

The convicted man had been married to his wife for 14 years before they were divorced in 2007. The estranged wife then gained sole custody of the couple’s two children, ages 11 and 13, and eventually kicked him out of their home. In recent months it was reported that the man’s spousal and child support payments had substantially increased.

In April 2008, the man was placed on probation after pleading guilty to four misdemeanor violations of breaking a domestic violence restraining order. Several months later, authorities accused him of making threats against his wife and her divorce lawyer. Authorities later pulled the suspect’s car over in a traffic stop on the Garden Grove Freeway and recovered handcuffs, pepper spray, throwing knives and a stolen 9-millimeter firearm with its serial numbers removed.

Continue reading "O.C. Man Sentenced to 17 Years for Making Threats to Wife and Family Law Judge" »

Evidence from Warrantless Vehicle Search Incident to Passenger’s Arrest is Suppressed where Defendant was Inside Patrol Vehicle when Searched

Defendant, Gonzalez, was convicted of Possession of a Firearm and Ammunition. This conviction resulted when a firearm was found during a June 19, 2006 traffic stop of a car in which Gonzalez was riding. The police, following the arrest of another passenger with outstanding warrants, searched the passenger compartment and found a loaded firearm in side the glove box. Gonzalez filed a motion to suppress; he asserted the search of the car violated his Fourth Amendment rights.

The Supreme Court in Arizona v. Gant, 129 S. Ct. 1710 (2009), held that police may search a vehicle incident to arrest only if the arrested person is within reaching distance of the passenger compartment of the car at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest. 129 S. Ct. at 1723-24. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Continue reading "Vehicle Searches Incident to Arrest " »

Felony Conviction Reversed when Prosecutors Fail to Turn Over Evidence to Defense: Why You Need an Experienced Criminal Appeals Lawyer to Win Your Case

The Federal Court of Appeals has reversed the conviction of a defendant who had been found guilty of being a felon in possession of a firearm due to prosecutorial misconduct. The defendant had been sentenced to prison and now will be given a new trial where he can attempt to prove his innocence. This happened because the defendant was wise enough to appeal his conviction.

The key witness for the prosecution was a person who had a serious criminal background. The defense attorney representing the accused made a motion to receive all information pertaining to the prior criminal record of the witnesses for the prosecution. Many of the prior arrests and convictions were not turned over the defense prior to trial. The defendant was found guilty.

After trial it was determined that in fact the star witness for the prosecution had a serious criminal record. The defendant made a motion for new trial. The prosecutor claimed that he could not recall what information he had. However, it was clear that law enforcement knew all about the witness’s prior criminal record.

The trial judge denied the motion for new trial. However, the accused was wise enough to appeal that denial.

The federal court of appeals held that the conviction must be reversed. The court stated that the defendant is entitled to any relevant evidence that might be favorable to the accused whether it be in the possession of the prosecutor or any investigating police officers that are working on the case. The prosecutor could not claim “ignorance” and when a discovery motion is made, he must make certain he speaks to the police officers working on the case to determine what information exists that law enforcement may have that might be helpful to the accused.

Continue reading "Appealing a Felony Conviction in California" »

Recently a California Court of Appeals decision affirmed that an officer is not violating your constitutional rights if he stops you and searches you for weapons based on an anonymous tip, so long as that tip provides the officers with detailed information. In this instant case, the information provided was items of clothing, location, and direction headed. Furthermore, the area was known for gang activity, and officers were aware that there had been a recent shooting in the area. Taking into account all the above information, the court held that it was not a violation of the defendant’s rights when the officer approached him and attempted to search his person for weapons.

The court reasoned that the anonymous telephone report was reliable, and therefore the officers did not go wrong in contacting the Defendant who fit the description given and was in the area where the anonymous tipper said he would be. The court also held that if the prosecution fails to bring the telephone dispatcher to testify to what the anonymous caller said at a suppression hearing pursuant to the “Harvey-Madden rule,” such a failure is not grave enough to warrant granting of the suppression motion.

If you have questions about an illegal search and seizure or another criminal defense matter, contact the experienced Los Angeles criminal defense attorneys from Wallin & Klarich for a consultation at 1-888-280-6839. Also, visit us online at www.wklaw.com to learn more about your case and what can be done.

What If The Police Used An Informant In My Case? What Can My Criminal Defense Attorney Do?

Before a police officer can stop a person, they must have reasonable suspicion that criminal activity is occurring. One way in which police can get reasonable suspicion is through informants’ tips.

Sometimes, people will inform the police about suspected criminal activity. These tips must be sufficiently reliable in order for the police to have reasonable suspicion based upon them. In Florida v. J.L., the United States Supreme Court held that an anonymous tip saying that the defendant was in possession of a firearm was not sufficiently reliable. The tip provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. Because the officer's suspicion was based on an unreliable tip, the court held he did not have reasonable suspicion to detain the defendant.

It's important to hire an attorney who can recognize these key legal issues. California’s experienced criminal defense attorneys at Wallin & Klarich have over 30 years experience trying criminal cases. They can aggressively and effectively represent you in court to get your case resolved to your satisfaction.

For a consultation to discuss your offense or hearing, please call us at 1-888-280-6839. Our attorneys are available 24 hours a day, seven days a week to answer any of your questions. You can also visit us at www.wklaw.com for more information.

Judge Throws Out A Nearly 30-year-Old Murder Conviction After Finding Prosecutorial Misconduct.

A Los Angeles County Superior Court judge tossed out a nearly 30-year-old murder conviction. Judge David S. Wesley found that the prosecutors had violated the defendant’s rights and withheld evidence from defense attorneys. In his ruling, Judge Wesley said that attorneys for Adam Miranda should have been told that witness Joe Saucedo had confessed to the killing.

Adam Miranda and Joe Saucedo were initially charged with the 1980 stabbing death of Robert Hosey. Saucedo later told prosecutors that Miranda was responsible for the killing. Saucedo cut a deal with prosecutors that allowed him to plead to a lesser charge of assault with a deadly weapon, and was given two years of probation in return for his testimony against Miranda. Miranda, now 48, pleaded guilty to second-degree murder after Saucedo testified against him at the preliminary hearing. Saucedo was the sole witness at the hearing.

Continue reading "Los Angeles Murder Conviction Overturned" »

Accidentally firing a weapon is a defense to murder - why hiring an experienced criminal defense firm can save you from prison

A recent California appeals case, People v. Villanueva, held that the trial court was mistaken when the trial court failed to instruct the jury that they could find the defendant not guilty based on self-defense. 2008 D.A.R. 18235 (2nd Dist. 2008) Dec. 12 2008 (B202418). Defendant testified that he drew a weapon in self-defense, but fired accidentally. Normally, this shooting is not considered self-defense. However, the California Court of Appeal found that homicide is excusable when a person shows a weapon to defend themselves then accidentally fires such weapon.

If you find yourself or a loved one in a situation where you or that loved one is facing a murder charge but the homicide was an accident or in self-defense you need an experienced, aggressive California murder defense attorney. Wallin & Klarich criminal defense attorneys in California know the current law and what it takes to defend crimes such as the one described above. Such knowledge and experience could mean the difference between staying in jail and having your freedom. Call now to speak to an experienced criminal law attorney at Wallin & Klarich. You can reach us toll free at 888-280-6839.

Why you need an experienced criminal defense attorney.

Three Canoga Park men believed to be members of a Latin street gang have been hit with various California murder charges stemming from a December 22, 2008 shooting outside Canoga Park Bowl, a neighborhood bowling alley.

Richard Bordelon, 21, Martin Sotelo, 23, and a third 15-year-old suspect are being prosecuted for the shooting and killing of James Shamp, a 48-year-old worker at the bowling alley. Bordelon and Sotelo are being charged with one count of murder and conspiracy to commit a crime because of race as well as one count of attempted second-degree robbery stemming from a separate incident. Sotelo was also charged with one count of unlawful driving or taking of a vehicle and one count of evading an officer. The 15-year-old suspect was charged in Juvenile Court with intentionally committing murder because of race, street gang killing and discharging a weapon.

Continue reading "Gang Members Charged in Canoga Park Murder" »

OJ Sentenced to prison in Nevada

Last Friday, OJ Simpson was sentenced to a maximum of 33 years in a Nevada State prison for his role in a September 2007 kidnapping and assault with a deadly weapon in Las Vegas. In sentencing Simpson, Judge Jackie Glass indicated that the evidence against Simpson was overwhelming. Such evidence included audiotapes that captured Simpson planning and executing the kidnapping and assault.

It is important to note, nonetheless, that Simpson is eligible to be released early on parole in nine years, in the year 2017. However, in Nevada, only half all eligible inmates are granted parole. This means that half all eligible inmates are denied parole and end-up serving their entire maximum sentences.

Simpson is planning to appeal. One of the issues that he will probably raise on appeal is the fact that no African Americans were on the jury and thus the jury did not adequately reflect a “jury of his peers.” Another issue that may be raised by Simpson is that jury (and possibly Judge) was biased against him, as he was previously acquitted of the infamous charges of murder in Los Angeles of Nicole Brown Simpson and Ronald Goldman 13 years ago.

It will definitely be interesting to see how Simpson’s appeal is handled. Wallin and Klarich will be monitoring this very closely over the next few months. Call Wallin and Klarich today at 888-749-0034 if you or a loved one needs help with an appeal or with any other criminal matter. Wallin and Klarich has been in the business of helping people with their California appeals and/or criminal matters for over 30 years and we would like to help you with yours! Visit us at www.wklaw.com.

When you are facing drug charges you need the legal representation of highly qualified criminal defense lawyers to help you win your case.

Tyree Christopher Collier was denied his motion to suppress evidence on Thursday, September 18, 2008 and plead guilty to concealed firearm charges in California. Collier was the passenger in a car that was pulled over in a routine traffic stop in Los Angeles County. The Deputy Sheriff, Alfredo Rosas, stopped the vehicle for not having a front license plate but smelled a strong scent of marijuana as he approached the car.

Deputy Rosas and his partner, Deputy Brett Binder, asked Collier and the driver to step out of the vehicle. Deputy Binder asked Collier if he had any weapons or anything illegal on his person and Collier responded that he didn’t. Binder noted that Collier was wearing baggy shorts and an un-tucked shirt which led him to believe that Collier was concealing a weapon. Deputed Binder proceeded to pat Collier down to “allay his fear” and as such found a loaded Glock nine millimeter handgun in his pants pocket, along with a jar of PCP.

Collier was sentenced to 16 months state prison after his motion to suppress evidence was denied. Collier claimed that the search was unlawful and as such the evidence acquired through that search should be excluded. The court ruled against Collier stating, “There were specific and articulable facts to conduct a limited pat down based on officer safety and the presence of drugs;” later noting that “guns often accompany drugs.” Wallin and Klarich have successfully defended countless clients when their rights have been violated such as with Mr. Collier in his case. He needed an experienced and aggressive California drug crime defense attorney to help him fight such an unlawful search and eventual sentence. Mr. Collier did not do this and instead, went to state prison.

We at Wallin and Klarich have over 30 years of experience in criminal defense matters and will get you the help you need. Visit our website at www.wklaw.com or call us at 1-888-749-0034 24 hours a day 7 days a week to speak with an experienced and aggressive criminal defense attorney that will fight for you.

We have been discussing the impact on the U.S. Supreme Court's ruling in D.C. v. Heller and how that ruling might negatively impact on various gun regulations. In this installment, we discuss how this ruling might impact on the Lautenberg Act. (18 U.S.C. § 922(g)(9).)

The Lautenberg Act provides that no person who has ever been convicted of a "misdemeanor crime of domestic violence" may ever possess a firearm. (18 U.S.C. § 922(g)(9).) Anyone who violates this law is guilty of a felony and can be imprisoned in a federal prison for up to ten years. (18 U.S.C. § 924(a)(2).) This means that, if you have ever been convicted, at any time in your life, of pushing, shoving, or slapping your spouse or significant other, and you possess a firearm, you are committing a federal offense. Most criminal defense lawyers we have encountered are simply not even aware of this law.

Interestingly, while there is a federal law that permits one to apply for relief from this prohibition, see 18 U.S.C. § 925(c), Congress has enacted legislation expressly prohibiting expenditure of any federal money to allow the government to process any such applications, and, until that ban is lifted, this is, in essence, a "right without a remedy." (See United States v. Bean (2002) 537 U.S. 71.)

Continue reading "Domestic Violence Conviction and Firearm Possession Likely Impacted by Recent Supreme Court Decision" »

In the previous installment, we saw how the U.S. Supreme Court's ruling in D.C. v. Heller left many important questions about the scope of the Second Amendment unanswered. These questions included important issues as, how should a court go about balancing the individual's constitutional right to "keep and bear arms" against a government's attempt to regulate the possession of firearms, and, whatever test the Court later decides to implement, how will present laws stack up against the numerous laws that are in place restricting the individual right of citizens to "keep and bear arms."

One area that is called into question is the federal and state laws that prohibit persons convicted of certain crimes from possessing firearms. These laws are known as "felon in possession" laws, and many laws provide severe penalties for people who have been convicted of felonies who are found in possession of firearms or ammunition. Put simply, under these laws, anyone who has ever been convicted of a felony of any kind may no longer legally possess firearms. (See, e.g., 18 U.S.C. § 922(g)(1); Pen. Code, § 12021, subd. (a)(1).)

While, at first blush, these laws seem to be reasonable restrictions on the individual's constitutional right to possess firearms, a deeper look into the issue raises some critical questions.

Continue reading "Convicted Felons in Possession of Firearms Impacted by US Supreme Court Decision and how Criminal Defense Attorneys Can Help" »

On June 26, 2008, the United States Supreme Court issued its opinion in the case of District of Columbia v. Heller (2008) 128 S. Ct. 645. The issue in the case was whether Washington, D.C.'s gun law ran afoul of the Second Amendment to the United States Constitution. That Amendment provides, in its entirety, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The D.C. law in issue here provided that with extremely limited exceptions, it was illegal to possess handguns in the District, and that any concealed weapons or possessed firearms, including shotguns and rifles, had to be kept unloaded and disassembled and/or bound by a trigger lock - even when the gun was possessed strictly in a person's home. Certain residents of the District brought suit against the District, challenging the law on Second Amendment grounds, and, eventually, the case made its way to the U.S. Supreme Court.

Prior to its ruling in Heller, the Court had never addressed squarely whether the Second Amendment protects an individual's right to "keep and bear arms," or whether, instead, it protected a "collective" right, i.e., the collective right of the states, to "keep and bear arms." After reviewing the text of the Amendment, as well as relevant history, the majority opinion, authored by Justice Scalia, found that: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not.... Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose."

Continue reading "Firearm Cases and Laws to be Impacted by Supreme Court Ruling" »

The United States Supreme Court heard arguments recently in a case involving a challenge to Washington, DC’s ban on the possession of handguns. The law had been challenged by a resident of Washington, DC on the ground that the law runs contrary to the Second Amendment to the United States Constitution.

The Second Amendment provides, in its entirety, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

At issue here is whether the Amendment protects an individual person’s right to possess a firearm (i.e., the “Individual Rights” theory), or whether the right to “keep and bear arms” is only tied to service in a state militia, such as, for instance, the National Guard (i.e., the “Collective Rights” theory). The United States Supreme Court has never squarely answered this question.

Even if the Court adopts the “Individual Rights” theory, the Court must still decide to what extent the right to own a gun can be limited consistent with the Second Amendment. As with other Constitutional Rights, there are very few rights that are absolute. For instance, one’s right to freedom of speech could not be said to protect the right to threaten to kill one’s spouse.

A decision is expected in the case sometime before June, when the Court recesses for the Summer.

Does the Second Amendment to the United States (US) Constitution allow American citizens to keep handguns at home? This is the question now before the US Supreme Court, at it decided at the end of last year to rule on the issue. The US Supreme Court will hear arguments on the issue shortly and render its decision by summer 2008. Its decision could affect thousands and thousands who want to own handguns. More importantly, however, it could result in the contesting of several State and Federal restrictions and regulations pertaining to firearms ,across the US.

The issue arose after Washington DC residents challenged a law which had prohibited handguns in Washington DC for 31 years. The law was struck down and an appeal was made to the US Supreme court.

In particular, the Second Amendment states that, “the right of the people to keep and bear arms shall not be infringed.” Opponents of the Washington DC law argue that it infringes on this Second Amendment right to bear arms. Meanwhile, proponents of the law claim that most violent crimes involve the use of a handguns and thus, handguns should continue to be outlawed.

Continue reading "I Want to Own a Handgun" »

It is illegal for a minor under age 16 to possess a handgun unless he or she is accompanied by a parent or responsible adult. If the minor is age 16 or older, he or she may only posses a handgun or live ammunition with the written permission of a parent or guardian, and may only possess these items for legal purposes such as recreational sports. (PC § 12101) In addition, no one may sell or give a firearm, even an air gun or gas-operated gun, to a minor without parental consent. Some types of firearms and firearm-related equipment are outright illegal, with or without parental permission. Such items include sawed-off shotguns, machine guns and unmarked pistols (handguns that have their identifying numbers removed), as well as sniper scoped, silencers and plastic firearms. (PC §§12020, 12094, 12520)

Other illegal weapons (illegal to manufacture, import, possess, sell, give or even lend to someone) include any ballistic knife, fletchette dart, blackjack, sling shot, nunchaku, metal knuckles, dirk, dagger, a weapon held in a camouflaging firearm container and oriental throwing stars. Also prohibited are belt buckle knives, leaded canes, zip guns, shurikens, lipstick case knives, writing pen-knives and unconventional pistols. (PC §§12020, 12094)

Call the experienced attorneys at Wallin & Klarich if you or your child is arrested for a weapons offense.

You might know that California law prohibits convicted felons from possessing or owning firearms. California Penal Code Section 12021 makes it illegal to possess a firearm in California for any person who has previously been convicted of any Felony offense in California. That prohibition is for life.

But, I’ll bet you did not know that same law makes it illegal to possess a firearm for a period of ten (10) years if you have been convicted of any of the following Misdemeanors:

Continue reading "FIREARMS AND THE LAW" »

The United States Supreme Court might be primed to address this question thanks to a recent opinion by the United States Court of Appeals for the District of Columbia Circuit in Washington, DC. Parker v. District of Columbia (Ct. App. Case No. 04-7041 decided March 9, 2007).

In Parker, six residents of Washington, DC sued the District, claiming that the District’s firearms laws violated their rights under the Second Amendment to own and possess a firearm. The law in issue bans firearms from being “carried” without a license (which is almost never granted), and a person could be charged with a crime for illegally “carrying” a firearm if he or she were to simply “carry” a firearm from one room of the house to another. The law further requires that all lawfully owned firearms be kept unloaded at all times and either disassembled or bound with a trigger locking device. Put simply, under the law, practically no one is permitted to have a functioning firearm in his or her home in the District. A lower court judge dismissed the lawsuit and the residents appealed.

On appellate review, the Court of Appeals began with the text of the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The Court went on to note that, in the Second Amendment debate, there are basically two camps: the individual rights camp, which believes that the Amendment protects an individual person’s right to possess firearms for individual use; and the collective rights camp, which believes that the Second Amendment protects only the rights of individual state governments to raise and arm their own state militias, which are akin to today’s National Guard. The Court noted a third camp, the sophisticated collective rights camp, which believes that an individual person could, in theory, raise a Second Amendment claim in court, but that the Second Amendment does not give an individual the right to own or possess a firearm for personal use, only civic use.

The Court found that there is no authoritative answer to the question “who is right” the individual rights camp, the collective rights camp, or the sophisticated collective rights camp. The United States Supreme Court has never directly answered this question. The Court’s research into the question revealed that the vast majority of the United States Courts of Appeal that have considered this question (only the Second Circuit has yet to weigh in on this question) have adopted the collective rights model. Only the Fifth Circuit has adopted the individual rights model. The Court pointed out as well that the question has yielded mixed answers from the various state courts that have addressed the question, and that the United States Department of Justice recently released an opinion that adopts the individual rights theory.

The Court thus turned to the text of the Second Amendment, the history of its enactment, as well as the leading US Supreme Court case on the Second Amendment, United States v. Miller, 307 U.S. 174 (1939). The Court found that, although the Miller case did not directly answer the question of whether the Second Amendment protects an individual’s right to own a firearm, the High Court’s opinion in Miller, “implicitly assumes that interpretation.”

Continue reading "Does the Second Amendment protect an individual’s right to own and possess a firearm? " »