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Some questions I hope get asked in Heller

By Douglas A. Berman

Regular readers know I find the Heller Second Amendment case really interesting, though mostly for sentencing reasons few (if any) of the pundits are even aware of.  Specifically, because many link the right to keep and bear arms to a natural right of self-defense (example here), I think serious recognition of enforceable individual Second Amendment rights could impact the application of federal felon-in-possession laws and some severe federal gun sentencing enhancements.  So, with these ideas in mind, here are two questions I would like to see asked in Heller: On what textual or conceptual basis can felons be completely excluded from the protections of the Second Amendment?  (Potential follow-up: Do persons lose their natural right to self-defense by virtue of any felony conviction?) Given that the Third and Fourth Amendments make special mention of houses as a place where people have a special right to feel secure, should Second Amendment rights be considered more forceful when the keeping arms in the home is at issue?  (Potential follow-up: Should the standard of review be different for gun laws that impact keeping guns in the home?) Readers are, of course, highly encouraged to add other suggested Heller questions as we gear up for tomorrow's big argument.continue to full post

Full post as published by Sentencing Law and Policy on March 17, 2008 (boomark / email).