Circuit Split Watch: Gun Rights Outside the Home

This article first appeared in the January 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

The U.S. Supreme Court’s landmark Heller decision declared an individual right to possess a firearm at home, but left open the question of gun rights in public. The high court could be asked to weigh in soon on this open question, which has split federal appellate courts and again been part of the national conversation since the Newtown shootings.

In a December opinion, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, writing for himself and Judge Joel Flaum, honed in on the words “keep and bear” in the Second Amendment, drawing meaning from each one.

“The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home,” Posner stated. “A right to bear arms thus implies a right to carry a loaded gun outside the home.” This reading, Posner concluded, is consistent with Heller. The majority struck down an Illinois ban on carrying guns in public.

Dissenting, Judge Ann Claire Williams was not convinced that Heller implied a “right to have ready-to-use firearms” outside the home.

Williams looked to “a long history of regulating arms in public,” including state laws adopted during the founding era. Predating those laws, the 1328 Statute of Northampton provided that no one may “go nor ride armed by night nor by day, in Fairs, markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.”

Both Posner and Williams cited recent decisions from the 2nd and 4th Circuits, which upheld public-carry restrictions (a New York law and a National Park Service regulation, respectively).

In November, a unanimous 2nd Circuit panel found “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”

A unanimous 4th Circuit held in 2011 that “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” As to extending Heller, two of the three judges said it is “prudent to await direction from the [Supreme] Court.”

Posner questioned both opinions and distinguished the Illinois ban as “the most restrictive gun law of any of the 50 states.” Along these lines and in an unusual move, Posner gave the Illinois legislature 180 days to revise the ban. The new law can “impose reasonable limitations, consistent with the public safety and the Second Amendment,” he explained.

If Illinois takes this option, it could lessen the practical impact of the circuit split. The revised restrictions could be similar to those upheld; in fact, the Supreme Court declined to review the 4th Circuit public-carry decision. A petition for certiorari is pending in the 2nd Circuit case.

For now, Illinois continues to fight the 7th Circuit ruling.

On January 8, Illinois Attorney General Lisa Madigan filed a petition for rehearing en banc. In a press release that same day, Madigan said: “In ruling that Illinois must allow individuals to carry ready-to-use firearms in public, the 7th Circuit Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts with decisions by two other federal appellate courts.”

If the full 7th Circuit decides to rehear the case, any Supreme Court review would be delayed. However, a quick denial by the 7th Circuit, followed by a petition for certiorari is just as likely.

Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?

This article first appeared in the October 17, 2011, issue of the National Law Journal’s Supreme Court Insider.

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.

Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies. Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants. Each committed crack offenses before the FSA became law, but was sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant. As a result, the defendants would get the higher sentences. This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach. Originally, prosecutors had been told that the FSA only applied to post-FSA offenses. However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy. Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact.

Chief Judge Frank Easterbrook, writing for the four other judges opposed to rehearing en banc, focused on 1 U.S.C. § 109. Under that section, repealing a statute does not “extinguish any penalty” of the old statute, except where expressly stated in the “repealing Act.” Put another way, the FSA is not retroactive unless it says so. And it doesn’t, Easterbrook concluded. He also saw no implied retroactivity.

Judge Ann Claire Williams, joined by the four other judges who voted for rehearing, called this result “wrong” and “nonsensical.” Judge Richard Posner, who joined Williams, but also wrote a separate individual dissent, went further, deeming it “gratuitously silly” and “perverse.”

The FSA, Williams noted, gives the Sentencing Commission “emergency authority” to promulgate guidelines consistent with the FSA “as soon as practicable.” Also, the FSA states that it is “restor[ing] fairness to Federal cocaine sentencing.” Williams questioned why Congress would rush to replace admittedly unfair sentences, only to continue imposing them.

As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA. The 1st, 3rd and 11th Circuits are in sync with Williams’ opinion, while the 8th Circuit squares with the 7th Circuit holding defended by Easterbrook.

The 7th and 8th Circuit cases are likely to be appealed to the Supreme Court soon. Like the 7th Circuit, the 8th Circuit recently denied rehearing en banc. Also, an earlier 7th Circuit case on FSA retroactivity, Fisher v. United States, is already pending before the Court as a petition. It was distributed for the September 26 conference, but the Court took no action, perhaps waiting in anticipation of further petitions. (See also Dorsey v. United States, consolidated with Fisher below.)

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari. If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions. In such cases, the Court can appoint an attorney to defend the judgments below. Often, as Legal Times has reported, former Supreme Court clerks get this nod.

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending. On October 4, the 11th Circuit ordered rehearing en banc sua sponte.