By Joshua Austin
The question of whether the Second Amendment is an individual right or reserved only to organized militias has been answered. District of Columbia. v. Heller held that individual citizens have a right to bear arms for self-defense. In light of Heller, however, one important question remains: what can the government do to restrict gun rights? In the short time since Heller numerous suits have been brought to overturn the extensive regulation of firearms. On a federal level, no case has experienced any measure of success, with one exception. The Utah Federal District Court in United States v. Engstrum lobbed the first volley against the extensive firearms regulatory scheme devised by Congress. Engstrum challenged 18 U.S.C. 922(g)(9) (2008), which states that no person convicted of a misdemeanor domestic violence offense may be in possession of a firearm. Defendant Engstrum, an admitted domestic violence misdemeanant, was found by police to be in possession of a weapon as a result of an argument with his girlfriend. Police were alerted to the presence of the weapon by the girlfriend. Engstrum acknowledged his possession of the firearm, and surrendered it to authorities upon request. He was later charged with violating the federal statute.
Engstrum moved first to dismiss the indictment on grounds that the statute violated his Second Amendment rights. He argued that, as applied to him, the statute was unconstitutional in light of Heller’s holding that individual’s have a constitutional right to possess firearms for self-defense. The District judge refused to dismiss the charges because Engstrum acknowledged that he was a person (misdemeanant) controlled by the statute.
Failing to win a dismissal of the charges, Engstrum next moved for a jury instruction. The proposed jury instruction would permit the jury to find Engstrum not guilty of the violation if the Government was unable to prove beyond a reasonable doubt that Engstrum posed a prospective risk to an intimate partner or child, and that the possession of the firearm was not for personal self-defense in the home.
The judge rejected Engstrum’s instruction as not accurately stating the law. However, the judge did allow for an instruction permitting the jury to find Engstrum not guilty if Engstrum could prove he was not potentially violent. Effectively, the judge shifted the burden of proof from the prosecutor to the defendant. By permitting this jury instruction, the judge agreed with Engstrum that the statute, as worded, was potentially in violation of the Second Amendment as interpreted by the Supreme Court in Heller. The Government objected to the judge’s instruction and petitioned the Circuit Court of Appeals for a writ of mandamus ordering the judge to refuse the amended instruction.
Two members of the three-judge appeals panel granted the writ in an unpublished opinion. The dissenting third judge chose to publish his displeasure, including the majority’s opinion as an addendum to his dissent. Judge Murphy took the majority to task for not publishing their opinion and for out-of-hand dismissing the arguments of Engstrum. Judge Murphy was concerned that Engstrum had presented genuine issues of controversy that would call into question the constitutionality of 18 U.S.C. 922(g)(9) as applied to Engstrum and other non-violent persons.
Judge Murphy was concerned primarily with the level of scrutiny to be applied to gun control statutes in the wake of Heller. Judge Murphy questioned whether or not the government had a compelling interest in restricting a non-violent misdemeanant from owning a firearm. Heller, for the first time, read an individual right into the Second Amendment. Such a right prevents the government from arbitrarily removing an individual’s right to own a gun for self-defense. Judge Murphy argued that Engstrum had presented genuine issues concerning what level of scrutiny should apply to laws restricting Second Amendment rights. Ultimately, Judge Murphy’s dissent holds no precedential value. Yet, the questions raised by Engstrum will have to be answered by courts in the future.