August 26, 2008 By Wallin & Klarich

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.

Initially, as alluded to in the previous article, determining the “standard of review” is crucial. In prior cases, the U.S. Supreme Court has ruled that, when a law impinges upon the exercise of a “fundamental right” the government that enacted that law has the burden of convincing the Court that the law is required to achieve a “compelling governmental interest” and, furthermore, that the law is “narrowly tailored” to achieve that compelling interest. This standard is known as “strict scrutiny.” (See Plyler v. Doe (1982) 457 U.S. 202, 216-217.) The Plyler Court went on to note that, “[i]n determining whether denial of a particular right is deserving of strict scrutiny …, we look to the Constitution to see if the right infringed has its source, explicitly or implicitly, therein. (Id. at p. 217, fn. 15.) Thus, for instance, while the Constitution does not expressly guarantee a right of “privacy” (the word “privacy” is not contained in the U.S. Constitution) the Court has, nonetheless, long recognized that “privacy” is a “fundamental” right. (See Griswold v. Connecticut (1965) 381 U.S. 479.) Furthermore, while the U.S. Constitution does not expressly guarantee the right of a woman to terminate a pregnancy, the High Court has nonetheless recognized that right as a “fundamental” right. (See Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833, 851-852.)

Therefore, since the Heller Court ruled that each individual in America has the right, under the Constitution, to “keep and bear arms,” it would seem that laws that infringe upon said right, being that said right “has its source, explicitly” within the Constitution, should be subjected to “strict scrutiny” review, and should be struck down as unconstitutional unless the government can demonstrate both a “compelling governmental interest” and that the law is “narrowly tailored” to meet that interest. Again, whether that is the standard that is applied remains to be seen.

It is at this point, though, one reaches “felon in possession” laws. As noted, these laws provide that anyone convicted of a felony is barred forever from possessing guns. While, at first blush, it may seem beyond doubt that these laws should survive any form of scrutiny (after all, not many people think it’d be a good idea to give convicted bank robbers who were recently released from prison guns), when the issue is more carefully scrutinized, there is room to question the wholesale deprivation of a “fundamental” right to anyone convicted of any crime classified as a “felony.”

While there may be more of a justification for depriving violent felons from possessing firearms, especially where the conviction in issue is very recent, or where the person is still on probation or parole, what about non-violent felonies, or what about even violent felonies that occurred decades ago and where the person has been rehabilitated? Does anyone fear, for instance, that Martha Stewart, who was convicted of lying to federal investigators in a stock fraud case, will represent any real danger to society if she is permitted to possess a firearm? Given that this is the case, what justification does the government really have to deny Ms. Stewart her Second Amendment right to keep a firearm in her home for self-defense, should she choose to do so?

Under California law, there are even more complex cases. For instance, what about a person who is charged and convicted of a “wobbler” crime, such as grand theft charges, or hit and run driving causing injury? In many of those cases, the defendant is sentenced to felony probation, and, therefore, the defendant is a “convicted felon” and not allowed to possess firearms. However, because the crime is a “wobbler,” the court, when the defendant’s probation is completed (and even before probation is completed), has discretion to reduce the crime to a misdemeanor “for all purposes.” (Pen. Code, § 17, subd. (b).) However, the court will generally only do this if the defendant goes to court and asks. In many “wobbler” cases, if the defendant completes probation successfully, and it is the defendant’s first offense, the court will reduce the crime to misdemeanor and the prosecution will put up little if any opposition to the Court’s granting the motion.

Thus, one could conceive of a case where a defendant is convicted of “grand theft” – a wobbler – when he is young. The defendant is granted felony probation and no jail time, and the defendant completes probation successfully. The defendant has learned his lesson and never gets into trouble with the law thereafter. However, because of his youth or lack of knowledge of the law, the defendant never goes back to court to ask the judge to reduce his crime to a misdemeanor under Penal Code section 17, subdivision (b). Many years later, the defendant is found in possession of a firearm and prosecuted as being a “felon in possession” of a gun. Had the defendant returned to court after successful completion of probation, and asked the court to reduce the crime to a misdemeanor, there is no reason to think, under the circumstances, that the court would have denied the motion, and, with the motion granted, the defendant would no longer be a “felon” and, therefore, he would not be a “felon in possession.” (See Gebremicael v. California Com’n on Teacher Credentialing (2004) 118 Cal.App.4th 1477; 18 U.S.C. § 921(a)(20).) Should application of such a hyper-technical law operate to deprive one of a “fundamental” right expressly guaranteed by the U.S. Constitution? There is no doubt that issues like this will have to be addressed by courts in future cases.

Whether you have been charged with a felony or misdemeanor, the California criminal defense lawyers at Wallin & Klarich can provide the representation you need to ensure the best outcome in your criminal case. We are always available, call us toll free at 888.280.6839 for a free consultation.

Contact Us
  •   17592 Irvine Blvd,
      Tustin, CA 92780
  •   (714) 730-5300
  •   (888) 280-6839
SCHEDULE YOUR free consultation

If you or a loved one have been accused of a crime, this is the time to contact us.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 Wallin & Klarich - All rights reserved

California Criminal Defense Lawyer Disclaimer: The legal information presented at this site should not be construed to be formal legal advice, nor should it be considered the formation of a lawyer or attorney-client relationship. Any case results presented on the site are based upon the facts of a particular case and do not represent a promise or guarantee. The contents of this website may contain legal advertising. If you would like to find out more information about your particular legal matter, contact our office for a free telephonic consultation. This web site is not intended to solicit clients for matters outside of the state of California.