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Firearm sentence enhancements, the nexus notion, and chilling effects

By Douglas A. Berman

Eugene Volokh with this new post continues to do a strong job criticizing lower courts for sloppy and unsatisfactory reasoning when rejecting post-Heller Second Amendment claims by criminal defendants.  But in his latest post, titled "The Second Amendment and Sentence Enhancements for Firearms Use or Carrying in Connection With Crimes," I fear he is a bit too quick to embrace state jurisprudence that upholds gun sentence enhancements based merely on a gun having a purported "nexus" to a separate crime.  After quoting a recent Washington state ruling explaining the nexus idea, Eugene has this comment:It seems to me that the Washington Supreme Court's rule ? requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress ? is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement...continue to full post

Full post as published by Sentencing Law and Policy on July 10, 2008 (boomark / email).