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"[T]he felon dispossession dictum may lack the 'longstanding' historical basis that Heller ascribes to it"

By Douglas A. Berman

The title of this post is a line from a concurrence by Judge Tymkovich about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here).  In his concurrence to an opinion rejecting a Second Amendment challenge to a 922(g)(1) conviction, Judge Tymkovich explains why he feel he must follow the dicta in Hellerindicating that felon-in-possession laws are sound under the Second Amendment.  But he goes on to express concern about its soundness --- which he describes as "deus ex machina" dicta and leads him to wonder "at least with regard to felon dispossession, whether the Heller dictum has swallowed the Heller rule."  Judge Tymkovich also expresses concern with the Heller dicta's "inhibiting effect" on lower courts charged with applying Heller...continue to full post

Full post as published by Sentencing Law and Policy on July 28, 2009 (boomark / email).