By: Denise M. Champagne//April 4, 2013
By: Denise M. Champagne//April 4, 2013//
The Second Amendment does not protect the right of criminals to keep and bear arms, even if the weapon is lawfully purchased for self-protection, the U.S. Court of Appeals for the Second Circuit has ruled.
The court rejected the appeal of Ron Bryant, 35, a Rochester man who lost his right to own a gun because of a felony firearms conviction.
Federal law prohibits anyone convicted of a crime punishable by more than a year in prison from possessing a firearm.
U.S. Attorney William J. Hochul Jr. said the Court of Appeals rejected Bryant’s claim that the Second Amendment protected his right to possess a 12-gauge shotgun he bought to protect himself while he was selling crack cocaine from his home; once he engaged in an illegal home business, he was no longer a law-abiding citizen using the gun for a lawful purpose.
The government was represented on appeal by Assistant U.S. Attorney Monica J. Richards. Assistant U.S. Attorneys Aaron J. Mango and Michael DiGiacomo handled the case at Bryant’s March 2008 trial.
“Obviously we’re disappointed,” said Anne M. Burger, assistant federal public defender who represented Bryant on appeal. “It’s unclear at this point what the next step will be.”
She said she wanted to talk to Bryant before a decision is made on whether or not to seek certiorari from the U.S. Supreme Court.
Bryant was arrested in March 2007 after a search of his city home by Rochester police who recovered assorted plastic bags of cocaine, scales, cash and a 12-gauge shotgun and shells. He told police, according to court documents, that his roommate of one month was selling cocaine out of his house and that when the roommate was not home, he would make the sale. Bryant also said he had moved in about three years ago and was robbed two months later, which is why he bought the shotgun.
“All the cocaine, scales and baking soda that was found in my room is all that I have,” he is quoted as telling police.
The trial court denied Bryant’s request to suppress his statements, which included an admission that he was using the shotgun for protection in his narcotics-selling activities.
A jury found Bryant guilty of possession of cocaine and possession of a firearm “in furtherance of a drug trafficking crime.” He was sentenced by U.S. District Court Judge Charles J. Siragusa to 81 months in federal prison, including 60 months for the firearms conviction.
In between the end of his trial and sentencing date, the U.S. Supreme Court issued its landmark decision in Heller, which holds the Second Amendment protects a person’s right to own a firearm for personal use in his or her home.
Bryant appealed his firearms conviction, as applied under Title 18 Section 924 (c), saying the Heller decision required it be vacated. He argued, according to the 11-page decision, that the conclusion to be drawn from Heller was “that any restrictions on gun possession that ‘burden the right of self-defense’ by imposing serious criminal sanctions for firearms possession in the home are constitutionally suspect.”
The government opposed the motion, saying it would be “an absurd leap” to conclude from Heller that the Second Amendment provides a right to possess firearms for unlawful purposes.
The District Court agreed, finding nothing unconstitutional with the firearms statute and the legislative right to impose sanctions, a decision upheld by the Court of Appeals.
It was undisputed that Bryant legally bought the gun. He also did not contest the sufficiency of the evidence to support the firearms conviction, although the higher court notes in a footnote, that even if he had, its review of the evidence was sufficient to support the jury’s verdict.
In agreeing with the District Court, the Court of Appeals considered Heller and decisions in sister circuits that also rejected challenges to Section 924(c).
The three-judge panel notes Heller concludes the Supreme Court found the “core purpose” of the Second Amendment was for self-defense, but that the high court also noted the right was not unlimited, just as the First Amendment right to free speech is not unlimited.
“The court stated explicitly: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions of the possession of firearms by felons …’” the panel noted. “We read this exegesis as an implicit limitation on the exercise of the Second Amendment to bear arms for ‘lawful purpose[s].’”
The judges also pointed out that other circuits have addressed arguments similar to Bryant’s and rejected any contention that the Second Amendment entitles citizens to keep and bear arms “for all self-protection” and that it “cannot seriously be contended” it guarantees a right to use a firearm “in furtherance of drug trafficking,” United States v. Potter, 630 F.3d 1260 (Ninth Circuit 2011).
“Here, Bryant may have purchased and possessed the Remington shotgun for the ‘core lawful purpose’ of self-defense … but his right to continue in that possession if not absolute,” the unsigned decision states.
“Thus, once Bryant engaged in ‘an illegal home business,’ … he was no longer a law-abiding citizen using the firearm for a lawful purpose and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms,” the panel added, citing United States v. Jackson, 555 F.3d 635 (Seventh Circuit 2009).
The panel consisted of Circuit Judges Rosemary S. Pooler, Peter W. Hall and Debra Ann Livingston.
Bryant, according to the Federal Bureau of Prisons (www.bop.gov), remains in federal prison, under the jurisdiction of community corrections management at Pittsburgh.