Litigation/Feb 19, 2013

Guns & Second Amendment

A national debate is currently focusing on the Second Amendment’s right of citizens to keep and bear arms versus gun violence in America. I will not weigh in on this controversial debate other than to say the debate appears to be pressing a lot of hot buttons across the country. I suggest that interested persons read the US Supreme Court decision in District of Columbia v Heller, 554 US 570 (2008) to gain a better appreciation of the constitutional limits of the Second Amendment’s rights. History buffs should review the Federalist Papers and the writings of Blackstone and Storey to better understand the underpinnings of the Second Amendment to the United States Constitution, adopted in 1791. The following link to Wikipedia will prove helpful in furthering knowledge on this topic:

http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution.

Recently, the Michigan Court of Appeals weighed in on the Second Amendment debate in People of the State of Michigan v Craig Michael Deroche, Michigan Court of Appeals Docket No. 304759 (January 29,2 013).  The protagonist in this case apparently had a few cocktails too many when the Novi police were called to investigate an “altercation”. The police left after they had been unable to find the drunken Defendant who allegedly was hiding in a nearby woods. A couple hours later the police were called to a home and were advised that the Defendant was inside the home drunk and in possession of a handgun. The police got the Defendant to respond and the Defendant ended up being arrested for possession of a firearm while intoxicated.

At the preliminary examination, it was revealed that while Defendant was certainly intoxicated as confirmed by a blood alcohol test, Defendant was not actually in physical possession of the handgun. The inventive prosecutor parried by claiming that Mr. Deroche was in “constructive” possession of the gun because it was in his house. The District Court Judge dismissed the charges after due consideration of the Second Amendment. The prosecutor appealed to circuit court and then to the Michigan Court of Appeals that focused its decision on the Second Amendment’s protection of individuals’ rights to “keep and bear arms”.

The Court of Appeals confirmed that the Second Amendment and Michigan Constitution both provide individuals with a right to keep and bear arms for self-defense and defense of the state. The Court of Appeals duly noted that the right to keep and bear arms is not unlimited and that felons and mentally ill persons can be kept from possessing firearms and that firearms can be prohibited in “sensitive places” like schools and government buildings.

The Court of Appeals affirmed that “a right to possess a handgun in one’s home as a means of self-defense is a constitutional right that is at the core of Second Amendment protection.” The Court struck down on an “intermediate scrutiny standard” that the government could not meet its burden that the government objective somehow could override the individual’s rights.

The Court reasoned that to apply the criminal prohibition to a person who is drunk in his home but not in physical possession of a gun would force a person to choose between possession of a firearm and drinking at home. The Court concluded that such choice was unreasonable in light of the Second Amendment. If Mr. Deroche had threatened anyone with the gun or had it in his hands the outcome would likely have been different.

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