Legal Commentary

As usual Doug Berman has an interesting sentencing take on the day's criminal law news.  Today he considers the implications of the Court recognizing a right to bear arms to those currently incarcerated for gun crimes.  Here's an excerpt.

As regular readers know, I think all these assertions add up to making constitutionally questionable the threat of severe sentences on felons in possession of firearms.  After all, felons are Americans with a need to protect themselves and their families through keeping guns in their home.  And yet, all felons (even non-violent ones like Lewis Libby and Martha Stewart) face the threat of 10 years in federal prison for just possessing a firearm. 

Nevertheless, the majority opinion boldly and baldly asserts that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." (Slip op. at 54.) 

Really?  How can that (unjustified and unsupported) dicta be squared with all that has been said before?  To his credit, Justice Stevens properly asserts in this context that felons are not categorically excluded from exercising First and Fourth Amendment rights and thus the majoiry "offers no way to harmonize its conflicting pronouncements."  Time and litigation will tell if holdings or dicta end up dominating the application of the Second Amendment in future cases.