“Exercising a Constitutional Right Will Get You 20: The Second Amendment and Firearm Sentence Enhancements”
by Daniel I. Kapelovitz
Disclaimer: Nothing written in the below article should be construed as being legal advice. The law is always evolving and may have changed since this article was originally written.
Introduction: “Unjust, Cruel, and Even Irrational”—The Weldon Angelos Case
In 2004, a 24-year-old first-time offender named Weldon Angelos was convicted and sentenced to 55 years in prison. Unfortunately for Angelos, he was not a murderer, a rapist or an aircraft hijacker; if he was, he probably would have received a lighter sentence.  Instead, Angelos was a small-time marijuana dealer who, according to a government informant, was wearing a gun in an ankle holster during two of three $350 marijuana transactions. Angelos never brandished or discharged his firearm in furtherance of his crimes, but these two transactions earned Angelos a mandatory minimum sentence of 30 years. Police officers also found $18,040, a handgun, two opiate suckers, and bags containing approximately three pounds of marijuana, and two additional guns locked in Angelos’s apartment. Angelos received an additional 25 years for these guns at his home.
18 U.S.C. § 924(c) provides for a mandatory five-year minimum sentence for the first offense of possessing firearms “during and in relation to” any crime of violence or of drug trafficking, and 25 years for each additional offense. The sentences must run consecutively, even for defendants who had never been previously convicted under § 924(c). The government charged Angelos with five § 924(c) counts—potentially 105 years in prison. The jury convicted Angelos of three § 924(c) counts, two for the gun seen at the controlled buys, and the third for the handguns found at Angelos’s home.
Even the sentencing judge, Paul Cassell considered the sentence he imposed unfair. In his opinion, Cassell wrote, “The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational. Adding 55 years on top of a sentence for drug dealing is far beyond the roughly two-year sentence that the congressionally-created expert agency…believes is appropriate for possessing firearms under the same circumstances. The 55-year sentence substantially exceeds what the jury recommended to the court. It is also far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second-degree murder, espionage, kidnapping, aggravated assault, and rape. It exceeds what recidivist criminals will likely serve under the federal ‘three strikes’ provision. At the same time, however, this 55-year additional sentence is decreed by § 924(c).”
The judge hoped that the President of the United States and Congress would right this wrong: “To correct what appears to be an unjust sentence, the court also calls on the President…to commute Mr. Angelos’s sentence to something that is more in accord with just and rational punishment….[T]he court also calls on Congress to modify § 924(c) so that its harsh provisions for 25-year multiple sentences apply only to true recidivist drug offenders, those who have been sent to prison and failed to learn their lesson.”
The President did not commute the sentence, and Congress did not modify § 924(c). However, soon after, the Supreme Court did decide District of Columbia v. Heller, holding that the Second Amendment protected an individual right to keep and bear arms. During the same term, the Supreme Court also decided Kennedy v. Louisiana, giving further clarification of its Eighth Amendment jurisprudence. The Kennedy court held that due to the “evolving standards of decency that mark the progress of a maturing society,” the death penalty can not be imposed on a child rapist if no death resulted from the crime.
Not surprisingly, Angelos is appealing his conviction in light of these two recent Supreme Court decisions. His case is a good one to explore the post-Heller effect on firearm sentence enhancements. First, his case involves two common nonstandard uses of firearms that can give rise to a § 924(c) violation: mere possession of a gun that is never brandished, discharged or even alluded to, and protecting a narcotics stash in the home. To be found guilty under § 924(c), the prosecution must prove some nexus between the firearm and the crime. However, this nexus can be extremely loose. Heller may alter the nexus analysis, especially for guns kept at home. Second, Angelos’s extremely harsh sentence makes his case a good one to explore Heller’s possible effect on challenges of firearm cases under the Eighth Amendment’s Cruel and Unusual Punishments Clause.
The Heller Court was clear that the Second Amendment, like other constitutional rights, is not unlimited. Most firearm sentence enhancements would likely be upheld. For example, a regulation that provided stiffer sentences for armed robbery than for unarmed robbery would even survive strict scrutiny. But § 924(c) also applies in at least three situations in ways which, I argue, should not always survive Second Amendment scrutiny: emboldening, passive protection of a drug stash, and trading guns for drugs. Because Angelos did not brandish nor discharge a firearm during the drug deals, the emboldening theory would have to apply. And the charge related to the firearms found at Angelos’s home could only be justified under what is called the “fortress theory.” And while the third unusual application of § 924(c)—trading guns for drugs—did not apply to Angelos, the Supreme Court’s decision in such a case (Smith v. United States) influences how courts apply § 924(c) in the other two nonstandard use situations.
Because the Angelos case involves an extreme punishment for arguably exercising a constitutional right, the Supreme Court’s recent recognition of the individual right to bear arms should also affect the Eighth Amendment analysis in his case and others like his. The Kennedy Court held that life in prison is the harshest penalty a nonmurderer child rapist could be sentenced to. If Angelos is required to serve his entire sentence, the chances are great that he, like the child rapist in Kennedy, will spend the rest of his life in prison. Child rape is obviously a much more serious crime than mere possession of firearms while selling marijuana, and unlike firearm possession, child rape is in no way related to a constitutional right.
I. The Heller Decision
Heller recognized that the right to bear arms is an individual right and that “the inherent right of self-defense has been central to the Second Amendment right.” Furthermore, the Court held that “the home [is] where the need for defense of self, family, and property is most acute.” However, the Court did not provide much guidance as to exactly what regulations would violate the Second Amendment, except that laws like the District of Columbia’s that ban handgun possession in the home or prohibit “against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”
The Heller Court explicitly refused to determine the exact level of scrutiny that should be applied to Second Amendment cases, except that it is something higher than rational basis review. The Court held, “Obviously, the same test [rational basis] could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.” While many commentators think the level of scrutiny in Second Amendment cases will be the same as that used in state constitutional cases—reasonableness review—the court’s comparison of the right to keep and bear arms with these other highly valued rights suggests that a relatively high level of scrutiny should apply.
In rejecting dissenting Justice Breyer’s proposed “interest-balancing inquiry,” the Court stated, “The very enumeration of the right takes out the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all….We would not apply an ‘interest-balancing’ test to the prohibition of a peaceful neo-Nazi march through Skokie. The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them.”
In dicta, Justice Scalia wrote, without much reasoning to back it up, that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” This list of “presumptively lawful regulatory measures….does not purport to be exhaustive.” Even though the above passage is purely dicta, post-Heller courts quote it to justify its reasoning. The firearm regulation is almost always upheld by analogizing to the presumptively valid regulations mentioned in Heller.
If courts take Heller’s dicta seriously, which most post-Heller courts seem to be doing, a court is unlikely to invalidate a firearm sentence enhancement provision for violating the Second Amendment any time soon. If Heller’s dicta dictates that nonviolent felons like I. Lewis “Scooter” Libby and Martha Stewart no longer have a right to self-defense, even after they serve their sentences, by analogy, people currently engaging in criminal activity may be deemed to have forfeited their right to self-defense.
But that should not be the end of the inquiry. First, just because a court decides a case a certain way does not mean the decision is correct. Second, I write, “any time soon” because enumerated rights change over time, and cases are often overturned. As the Heller Court itself notes, “For most of our history, the Bill of Rights was not thought applicable to the States….Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified.”
Enumerated rights both broaden and narrow over time. The Fourth Amendment protections expanded greatly in the 1960s, only to be narrowed again by the Burger/Rehnquist courts. The First Amendment has mostly expanded. At one point, one could be convicted for speaking in favor of overthrowing the government. Now, such advocacy can only be punished if it meets the strict Brandenberg test, which requires that the speaker intentionally incited others to commit imminent unlawful acts, and that the speech was likely to do so. But even some First Amendment protections have seemingly narrowed. For example, in Tinker, the Court seemed to be giving a strong protection to student speech. Since then, the Court—while never overturning Tinker outright—has systematically chipped away at students’ free-speech rights.
The point is that the scope of enumerated rights is always in flux. Heller is likely just the dawning of a new age of Second Amendment jurisprudence. Even after Heller, the rights under the Second Amendment seem relatively weak. At this point, the right to keep and bear arms can only grow stronger. A trend towards a stronger right to bear arms might embolden more judges to find that criminals, in certain situations, do have a right to possess firearms. For example, in a Washington state sentence-enhancement case, where the defendant kept guns in his garage where he had a methamphetamine lab, the dissenting judge stated, “A citizen exercising his right to keep and bear arms has to keep the arms someplace.” Such dissenters may soon be finding themselves in the majority.
The Heller court held, “[W]hatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Criminals are by definition not law-abiding, and arguably not very responsible. But does this mean that criminals should completely forfeit their Second Amendment rights, even in regard to defending “hearth and home”? This paper hopes to clarify in which situations the Second Amendment forbids a firearm sentence enhancement.
II. 18 U.S.C. § 924(c)
Below is an edited version of § 924(c):
18 U.S.C. § 924(c)(1)(A) …[A]ny person who, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years….
(C) In the case of a second or subsequent conviction under this subsection, the person shall–
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.
(D) Notwithstanding any other provision of law–
(i) a court shall not place on probation any person convicted of a violation of this subsection; and
(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed….
A. Why Use § 924(c) to Analyze the Second Amendment’s Effect on Firearm Sentence Enhancements?
Section 924(c) is hardly the only firearm sentence enhancement statute. Other state and federal statutes increase penalties for gun-related offenses, but § 924(c) is a good starting place to analyze the Second Amendment’s effect on sentence enhancements for a number of reasons. Section 924(c), along with § 922(g), “are the most common federal firearms prosecutions” and, of course, § 924(c) mandated Angelos’s fifty-five year sentence. Section 924(c)’s provisions for mandatory minimums and mandatory consecutive sentences also make it the nation’s most extreme sentence enhancement provision. While most crimes are prosecuted in state courts, firearm possession cases and drug cases are often prosecuted in federal courts. Richmond, Virginia even implemented a plan called Project Exile—which other jurisdictions have since copied—that shifts firearms cases to the federal system, where there are harsher penalties. These harsh penalties are exacerbated because there is no parole and very little time off for good behavior available for federal prisoners. Lastly, even if the Second Amendment is never incorporated to apply to the states, it would still apply to § 924(c) cases since § 924(c) is a federal law.
B. A Brief History of § 924(c)
“Title 18 U.S.C. § 924(c) was proposed and enacted in a single day as an amendment to the Gun Control Act of 1968 enacted following the assassinations of Martin Luther King, Jr. and Robert F. Kennedy….Because § 924(c) was offered as a floor amendment, there are no congressional hearings or committee reports regarding its original purpose, and the court is left only with a few statements made during floor debate.” One of those few statements was made by the amendment’s sponsor, Representative Richard H. Poff, who said that § 924(c)’s purpose was “to persuade the man tempted to commit a Federal felony to leave his gun at home.”
Since 1968, § 924(c) has been amended numerous times. Originally, the provision only applied to firearms carried “unlawfully,” and “the sentencing judge could suspend the § 924(c) sentence or substitute probation on defendant’s first conviction under the sentence.” The Comprehensive Crime Control Act did away with the judge’s discretion and mandated a five-year sentence for the first offense and ten for each additional offense. Two years later, the Firearms Owners’ Protection Act greatly expanded the number of § 924(c) cases when it added drug trafficking as a predicate crime. Since then, Congress has increased the penalties for additional offenses, eventually to its current 25-year mandatory minimum; allowed for multiple counts in same indictment, so additional sentences could apply to first-time offenders; and mandated that these multiple sentences be served consecutively with each other and with the sentence for the underlying crime. When Congress dropped the requirement that the gun be possessed unlawfully, it was concerned that the law could apply to people who “lawfully, but inadvertently, possessed a gun…in unrelated criminal activity.” Congress attempted to solve this problem by adding the “in relation to” language.
Because § 924(c) was created piecemeal by multiple sessions of Congress, the courts have spent much time interpreting various terms of the statute. In United States v. Stewart, the Ninth Circuit determined that Congress intended the “in relation to” language to limit “during.” “To establish that a defendant ‘use[d]’ a firearm ‘during and in relation to’ a drug crime, courts have required the prosecution to establish two connections. The prosecution must show beyond a reasonable doubt (1) a nexus between the weapon and the defendant, and (2) some facilitative nexus between the firearm and the predicate offense.” However, courts have interpreted “in relation to” extremely broadly so that § 924(c) applies even if the firearm had very little relation to the predicate crime. For example in United States v. Evans, the D.C. Circuit upheld a “conviction of a drug trafficker arrested across town from [an] apartment where drugs were stored and weapons [were] kept for protection of stash.”
Courts have also struggled with the meaning of the word “uses.” Proving the necessary nexus between the firearm and the underlying crime of violence or drug trafficking is easy when the firearm is discharged, brandished, or used to threaten a victim during the predicate crime. However, § 924(c), however, also applies to “nonstandard” uses of firearms. A victim of a violent felony might not even know he was also a “victim” of § 924(c). If the predicate crime is drug trafficking, there might not even be a true victim—except, of course, society. Most dealers don’t force customers to purchase drugs at gun point. Dealers who carry firms most likely do so for self-defense in case someone tries to steal the drugs by force. There is a legitimate concern that drug dealers may use firearms to evade arrest, but a criminal willing to shoot it out with police is unlikely to be deterred by § 924(c) from carrying a firearm while committing a crime.
The three most common nonstandard use theories are using a firearm to buy drugs, using the gun to protect a drug stash, and using the gun to become emboldened to commit a crime. Applying § 924(c) to these nontraditional uses of firearms is often constitutionally suspect, given the Second Amendment right recognized in Heller.
In Smith v. United States, the Supreme Court ignored the rule of lenity (“where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant”) and held that exchanging drugs for firearms constituted “use” under § 924(c). Smith received a 30-year mandatory minimum sentence because he “used” a fully-automatic MAC-10 with a silencer to purchase cocaine. Under Smith, a firearm can be used to further a crime even if it is not used as a weapon. Of course, the gun could be used by the buyer in the future, but this is true of legally purchased firearms as well.
The dissent hypothesized that now if a defendant “uses” a gun to scratch his head, he could be convicted under § 924(c). The majority rebuts this example by saying that this would not be using a gun “during and in relation to” the underlying crime. But if a person is trying to commit a crime and suddenly gets a nasty itch, he is going to have trouble executing the crime unless he scratches that itch. And if he decides to use a gun to scratch that itch, isn’t he using it, at least according to Smith’s reasoning, “during and in relation to” the predicate crime?
Perhaps even more troubling than Smith’s definition of “use” is its expansive definition of “during and in relation to.” Citing Webster’s, the Court held that “in relation to” means “with reference to” or “as regards.” The Court recognized, “The phrase ‘in relation to’ thus, at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.”
This sounds reasonable, but then the Court’s disavows this limiting language and states that “the gun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug trafficking offense.” It’s difficult to imagine a gun possession that did not have the “potential” of facilitating a crime. In the absurd itch-scratching example, the criminal would not even have to use the gun to scratch his itch, but merely possess a gun that had the potential of scratching a possible itch that occurred during the crime. The court reasoned, “Whether guns used as the medium for exchange for drugs sold illegally or as a means to protect the transaction or dealers, their introduction into the scene of drug transactions dramatically heightens the danger to society.”
Smith, like most pre-Heller cases that address § 924(c), is a case about statutory interpretation. But its expansive definitions of “use” and “during and in relation to” have allowed the government to apply § 924(c) in unusual situations. Post-Heller, the question is no longer, “What did Congress intend?” but rather “When does the Second Amendment prohibit the application of what Congress intended?”
C. The Nexus Requirement and Nonstandard Uses of Firearms
To find someone guilty under § 924(c), there must be a nexus between the defendant, the firearm, and the predicate offense. In many cases, such as armed robbery, the nexus is easily established. But there are some not-so-obvious cases, where the nexus requirement is only met by loosening the definition of “nexus.” In these nonstandard use cases, the firearm activity would often not even be illegal but for the predicate crime. A person could use a firearm to purchase legal goods; a person could carry a firearm (if he has a license) in order to feel emboldened, so long as he is not being emboldened to commit a crime; and a person could keep a firearm in his house to protect his property, so long as his property is not contraband.
Oddly, the government does not have to charge the underlying crime. However, the underlying offense is an element of the crime that must be proved. Whether the jury really concluded beyond a reasonable doubt that the underlying crime was committed is often called into question. In cases where the underlying count is charged, juries have found the defendant not guilty of the underlying crime, yet still guilty of the using the gun in furtherance of that crime. Courts have upheld such inconsistent verdicts. For example, in U.S. v. Martin, the defendant was acquitted of all drug trafficking offenses, yet still found guilty under § 924(c) of using a gun in furtherance of committing those drug trafficking offenses. The court held, “Inconsistent verdicts do not warrant reversal if the guilty verdict is supported by sufficient evidence.” Possibly, such juries are reaching inconsistent verdicts as a form of compromise. But convicting a defendant of using a gun in furtherance of a crime for which he is found not guilty suggests that the gun possession itself is being criminalized. If so, this violates the Second Amendment.
i. Passive Protection of a Drug Stash
Prior to Smith, “[i]n cases where the government’s theory of ‘use’ is the passive protection of a narcotics stash, the courts have consistently reviewed § 924(c) convictions under either the ‘fortress theory’ or a ‘more than strategic proximity theory’ or both.” In an attempt to justify the fortress theory, the United States v. Acosta-Cazares Court stated, “Just as weapons are kept at the ready to protect military installations against potential enemy attack, so too may weapons be kept at the ready to protect a drug house, thereby safeguarding and facilitating illegal transactions.”
The “more than strategic proximity theory,” as its name suggests, supposedly requires that “something more than the strategic proximity of the firearms” is required to establish the necessary nexus between the firearm and the crime. “In reality, however, the ‘more than strategic proximity theory’ is deceptively named; the ‘something more’ that supposedly separates possession from ‘use’ is often illusory….[A] majority of the circuit courts interpreted ‘during and in relation to’ requirement very broadly, accepting as sufficient almost any relationship between the firearm and the predicate.”
The predicate crime in such situations is often possession with intent to distribute, an inherently nonviolent crime. But the majority of courts, especially after the Smith decision, look “beyond the instant possession offense to future distribution, contingencies, or escape. Following Smith, the majority of circuit courts have continued to apply § 924(c) expansively in passive protection cases.” This means that even if the crime itself is inherently nonviolent, the courts take Smith’s “potential of facilitating” language very literally, and will apply § 924(c) in a wide variety of cases that may violate the Second Amendment.
In one of the more absurd applications of § 924(c), Cosme Torres-Medina, “a paraplegic confined to a wheelchair…[who] has difficulty feeding himself” and who “could not access the tunnel below his house where the police found the firearm and drugs” was nevertheless found guilty of using “a firearm in relation to the commission of a narcotics offense.”
In emboldening cases, the prosecution’s theory is that the defendant “derive[ed] criminal fortitude from [the gun’s] proximity….In many cases, especially where the presence of the firearm is unknown to others and not discovered until after arrest, ‘emboldening’ is the only available theory of use.” By definition, no one is harmed by the firearm in such cases. There existed only the possibility of harm, which, of course, never transpired.
Emboldening is also used to justify § 924(c) convictions in passive stash protection cases. As the Torres-Medina court reasoned, “A firearm may play a role in the offense simply by emboldening the defendant to act; the defendant need not have drawn his weapon or fired rounds.” The Ninth Circuit further held that “a firearm may be considered available for purposes of § 934(c) if its physical proximity to the defendant at any time during the commission of the crime, or during arrest, supports the inference that it emboldened him to commit the underlying offense or to resist arrest. Whether such an inference is legitimately raised will depend on the circumstances of the individual case. We therefore decline to quantify the test in terms of feet, yards or miles.” Miles!?! The Torres-Medina court admitted, “While we agree that the firearm must be available, we reject the notion that it must be readily available.” If the purpose behind § 924(c) is to protect the public safety, it’s difficult to see how adding a five-year sentence where the drug dealer is a paraplegic whose gun could conceivably be miles away from him, or as it was in the case, in a crawlspace under the house, is going to promote public safety.
iii. Bartering Guns for Drugs
Arguably this is not a Second Amendment issue at all because the firearms aren’t being used for self-defense but rather merely as items of commerce. It would be like saying that a law that made it illegal to buy drugs with microphones violated the First Amendment. Except there are many ways to exercise free speech without using a microphone, while exercising one’s Second Amendment right without a firearm is much more difficult (it is “the right to keep and bear arms” after all). But for the exact same reason that the Second Amendment might not be implicated, the law is irrational. If the gun is not used for violence, why base a sentence enhancement on its use?
Even as a matter of public policy, this application of § 924(c) does little work (except to add time to sentences of those convicted of drug crimes). A person could buy cocaine with money, and then that seller could use that money to buy a gun. Such a cocaine deal itself is, of course, illegal, but § 924(c) would not apply. Increasing penalties for those who purchase drugs with guns, at most, will motivate the buyer to either use money or some other item to purchase the drugs. He could even sell his gun for cash and then use that cash to buy the cocaine. So this application of § 924(c) merely accomplishes that a drug dealer may have to go out and buy a gun with cash instead of with the drugs. Section 924(c) does little or nothing towards protecting public safety, nor does it really infringe on the right to bear arms, since the arms aren’t being used as a weapon. It only makes it slightly more inconvenient for a drug dealer to purchase firearms or for a cash-strapped gun owner to purchase drugs.
III. State Constitutional Cases Analyzing the Nexus Requirement
As Professor Eugene Volokh notes, “[S]ome of these novel Second Amendment questions aren’t novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense.” A state court might actually hold that enhancing the sentence of a paraplegic drug dealer with guns in his crawlspace violates his constitutional right to bear arms.
A. State v. Rupe
In State v. Rupe, the Washington Supreme Court held that introducing evidence of the defendant’s gun collection during the penalty phase of a capital punishment case was “irrelevant, prejudicial and violative of his due process rights.” The court recognized “the well established rule that constitutionally protected behavior cannot be the basis of criminal punishment.” The Court further held, “The State can take no action which will unnecessarily ‘chill’ or penalize the assertion of a constitutional right and the State may not draw adverse inferences from the exercise of a constitutional right.” Even though the court acknowledged that “the right to bear arms is ‘subject to reasonable regulation by the state under its police power,’ ” it held that the “[d]efendant was thus entitled under our constitution to possess weapons, without incurring the risk that the State would subsequently use the mere fact of possession against him in a criminal trial unrelated to their use.”
However, Rupe might not be controlling in typical sentence enhancement cases where there is at least some nexus between the gun possession and the crime. Part of the court’s reasoning was that, “[t]he guns in question had no connection with the crime….[and] many nonviolent individuals own and enjoy using a wide variety of guns.” But it is this chilling and penalizing the assertion of a constitutional right that makes certain § 924(c) cases problematic. If the nexus between the predicate crime and the firearm is too loose, the government is punishing the assertion of the constitutional right to bear arms. Even where there exists a loose connection, the right is often being chilled unconstitutionally. An otherwise law-abiding drug dealer might choose to not own firearms due to § 924(c)’s extreme penalties, and his constitutional right to protect himself and his family is chilled.
B. State v. Neff
State v. Neff provides a good example of how state courts deal with firearm sentence enhancements where there is a relatively strong state constitutional right to keep and bear arms.In Washington, a sentence enhancement is only available if the defendant was “armed” with a deadly weapon during the commission of a crime. A person is “armed” if he can “easily access” and “readily use” a firearm, and a nexus connects him, the weapon, and the crime. The Washington Supreme Court recognized that the nexus requirement is “critical” because “the State may not punish a citizen merely for exercising this right [to bear arms].” The State may punish citizens for using weapons while committing crimes because a weapon can make nonviolent crimes violent one, and a weapon can facilitate the crime’s commission, help the criminal escape, and protect contraband.
The court provided examples where sentence enhancements had been upheld: In State v. O’Neal, the defendant kept “over 20 guns, body armor, night vision goggles, and a police scanner” in his methamphetamine laboratory. The court upheld the sentence because the guns were “easily accessible” and the police scanner suggested that the defendant used guns to protect the drug manufacturing operation. In State v. Eckenrode, the court upheld the conviction where the police found two weapons, only one of which was loaded, and, again, a police scanner. However, in State v. Valdobinos, the court reversed the enhancement. After the defendant was arrested for selling cocaine to an undercover officer, the police found cocaine and an unloaded rifle under his bed. The court held that “the jury could not infer from an unloaded rifle near the cocaine that the defendant was armed….[N]o evidence indicated the gun was in the house to protect the drugs, as indicated by the presence of loaded weapons and police scanners in O’Neal and Eckenrode.”
The majority believed that the presence of loaded guns and police scanners are important factors. In Neff, there was no police scanner, but the police did find “two loaded pistols in a safe, which also contained four bags of marijuana….a third pistol hanging from a tool belt in the garage’s rafters….[and] two security cameras and a monitor in the garage on which to view live feeds.” Neff was not in his garage, but the court held that the “defendant does not have to be armed at the moment of arrest to be armed for purposes of the firearms enhancement because his drug operation was a continuing crime.” Finally, the court held, “The State may not punish Neff for owning guns, for keeping them loaded, or for keeping them easily accessible. However, it could enhance his drug manufacturing sentence where it proved beyond a reasonable doubt that Neff used them to defend his drug operation.”
The dissent thought Neff was not “armed” because he was not near the guns, nor were they easily accessible. The dissent further noted that “no Washington court has held a gun in a safe is ‘easily accessible’ to a defendant….However, as we had previously held, a gun contained in a backpack behind the driver’s seat is not readily accessible.” The dissent reasoned, “A citizen exercising his right to keep and bear arms has to keep the arms someplace—and what better place than locked in a safe or out of reach on a high rafter?…. [N]eff simply exercised his constitutional right to keep and bear arms.”
The dissent notes that the statute is meant to protect against “the danger an individual would actively brandish a weapon to facilitate a crime, not the inchoate risk of future use stemming from mere possession” and that “the majority’s analysis leads to absurd results. Under its view Neff was ‘armed’ at all times, even while running errands around the city without his weapon at his side. He would be ‘armed’ in the majority’s view even if he spent a couple nights in jail for an unrelated misdemeanor….While the majority gives the constitutional right to bear arms lip service, it seems to do in fact what it eschews in principle: enhance a sentence merely because a gun is present at the scene of a crime.” The dissent criticizes the majority for relaxing the “nexus” requirement, “requiring little more than constructive possession of a weapon,” and states that “[a]n individual does not waive his right to bear arms simply because he may commit a criminal act.”
This deeply divided opinion suggests that a few more sympathetic judges on the court could drastically strengthen the right to bear arms. Furthermore, Valdobinos demonstrates that when a constitutional right is at stake, the scrutiny may be stricter than rational basis or even reasonableness review. In pre-Heller § 924(c) cases, whether the gun in question is loaded or even working does not matter. Perhaps, post-Heller such facts will be part of the analysis. Unlike in Washington cases, courts in § 924(c) cases have held that the firearm does not have to be readily accessible.
IV. The Second Amendment and Strict Scrutiny
Pre-Heller, courts analyzed the nexus requirement by engaging in statutory interpretation to divine Congressional intent. Post-Heller, courts need to determine whether certain applications of § 924(c) violate the Second Amendment. Increasing punishments for those who brandish, discharge, or even threaten to use a firearm in furtherance of a crime does not violate the Second Amendment. Such applications of § 924(c) would easily pass constitutional muster, even if strict scrutiny were applied. The compelling interest would be public safety, and the law would be narrowly tailored to further that interest. Criminals who brandish or discharge firearms are almost by definition putting the public at risk. In most situations, brandishing or discharging a firearm is illegal with no underlying crime; whereas merely possessing a gun, especially in the home, is often protected by the Second Amendment.
The Heller Court explicitly “decline[d] to establish a level of scrutiny for evaluating Second Amendment restrictions.” But should strict scrutiny apply in Second Amendment cases? And if so, what would be the result?
A. Should Strict Scrutiny Apply?
Professor Adam Winkler writes, “[T]he Second Amendment’s individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial scrutiny” Winkler points out that “[n]o state courts apply strict scrutiny or any other type of heightened review to gun laws.” Even so, a different standard could apply under the Second Amendment. Furthermore, even if state courts apply reasonableness review and federal courts do the same, it does not necessarily follow that they should.
While Heller never announced a standard of review, the majority’s numerous comparisons to the First Amendment suggest a heightened standard. If strict scrutiny is not applied to the Second Amendment, almost any application of § 924(c) would be upheld. Extreme penalty enhancements for firearm possession may be bad public policy and overly oppressive, but they would most likely survive even intermediate scrutiny. But there are strong arguments that strict scrutiny should apply to the Second Amendment.
Winkler argues, “For evaluating an appropriate standard for judicial review of legislation, the textual difference between the [First and the Second Amendments] could not be starker. The First Amendment states ‘Congress shall make no law” abridging the individual rights it guarantees, whereas the Second describes the ‘necessity’ of a ‘well regulated’ Militia.” I disagree. Textually, the Second Amendment is closer to the First Amendment than it is to, say, the Fourth Amendment. The First Amendment’s “shall make no law” language seems very similar to the Second Amendment’s “shall not be infringed” language. “A well regulated Militia” does suggest that some regulation is constitutionally permissible, but the phrase modifies “Militia,” or the collective right, not the individual right recognized in Heller.
As Professor Winkler observes, “Reasonableness review is used in one of the most important provisions of the Bill of Rights: the Fourth Amendment. This provision, which is so central to the protection of privacy rights, does not require that invasive laws be strictly scrutinized but only that invasions be reasonable.” But the right found in the Fourth Amendment is “against unreasonable search and seizures.” Reasonableness is written directly into the Amendment.
The famous footnote four of Carolene Products also suggests a higher standard of review for Second Amendment cases. Footnote four requires that a “ ‘more searching judicial inquiry’ is appropriate when it is a law that interferes with individual rights…or a law that discriminates against a ‘discrete and insular minority.’ ” Heller recognized that the Second Amendment protects an individual right. Moreover, at least some gun regulations have discriminated against minorities.
During the Reconstruction era, gun regulations were specifically written to disenfranchise African-Americans. Even today, while the discrimination may not be so explicit, minorities and the poor are disproportionately represented in the criminal justice system. Section 924(c) is used to put “undesirables” in prison for long periods of time, even for life. The law has a disparate impact on minorities, even though this is allegedly not its purpose. “One in every nine black males in age group 20-24 is in prison or jail on any given day, and if the current trends continue, one of every three black males born today can expect to go to prison in his lifetime.” Furthermore, mandatory minimums are not really mandatory if the defendant accepts a plea to a lesser charge, and “African American defendants are more likely to receive a mandatory minimum sentence and less likely to benefit from a substantial assistance or safety valve departure. The unchallenged discretion of the prosecutor makes it increasingly difficult to combat these inequities in sentencing.” Section 924(c) is beginning to sound pretty darn invidious. Moreover, even though Heller seemed mainly concerned with the personal Second Amendment’s self-defense rationale, there is also the prevention-of-tyranny rationale. Any law whose goal is to stop citizens from preventing tyranny is surely invidious.
True, not all enumerated rights trigger strict scrutiny, and even those that do—such as the freedom of speech—do not do so always. But, again, just because a law that infringes free speech does not trigger strict scrutiny does not mean that it shouldn’t. The same holds true for the Second Amendment.
B. Applying Strict Scrutiny to § 924(c)
Winkler further argues that “[e]ven under heightened scrutiny, most gun control laws could survive Second Amendment challenge.” Maybe most, but sentence enhancements for mere possession cases would, or at least should, be invalidated under strict scrutiny. “Under strict scrutiny, a law will be upheld if it is necessary to achieve a compelling government purpose….This requires proof that the law is the least restrictive…alternative,” Furthermore, “[u]nder strict scrutiny, the government has the burden of pro[ving]” that the law is the least restrictive alternative.
Section 924(c), even applied to nonstandard uses of firearms, would likely meet the ends prong of the strict scrutiny test. There is a compelling interest to protect the public from gun violence. The question is whether such applications meet the means prong. Are these applications necessary to achieve the compelling government purpose?
When § 924(c) is applied to criminals who brandish or discharge firearms, the law is narrowly tailored to achieve the compelling interest of public safety. Even with nonstandard uses, the law is narrowly tailored in that it only applies to criminals with guns. But criminals do not engage in criminal activity 24 hours a day. And where the gun is never even brandished, the public has not been harmed. In hindsight, we know the firearm caused no harmed, because if it did, the defendant would be charged with a more serious crime. True, the law is meant to look prospectively and deter criminals from carrying guns. Some might argue that the law is like punishing drunk drivers who never actually hit someone with their car. But the proper analogy is that of punishing people for exercising their Twenty-First Amendment right to drink alcohol because of the possibility that those people might get drunk, then drive a car and harm others.
If the government proved that the defendant actually intended to use the gun, but was unable to for some reason, that would pass constitutional muster. But § 924(c) applies whether or not the criminal ever intended to actually use (as opposed to “use”) the gun. Not only does the government have to prove the defendant actually threatened public safety, but also that § 924(c) actually furthered its intended goal. To prove that the law furthered its compelling interest, the government would have to demonstrate that the law deterred criminals from possessing firearms or motivated them to keep their firearms at home. Deterrence is extremely difficult to prove. The death penalty is most extreme penalty our country allows and therefore it should be the most effective form of deterrence. Yet studies are mixed as to whether the death penalty actually deters crime. Furthermore, “[r]esearch suggests that any deterrent effect is more a function of the certainty of punishment, not the severity.”
Extreme sentences may actually be creating future criminals. At the very least, extreme sentences are harming society. “While prison has had only a limited impact on crime, it is increasingly resulting in negative consequences for individuals, families, and communities. As a result of mass incarceration there are now 1.5 million children with a parent in prison, including 1 in 14 African-American children.”
Deterrence assumes a criminal who not only knows the law, but rationally considers the law’s consequences when planning a crime. But let us assume the hyper-rational criminal who really weighs the costs and benefits of criminal decision making, and further assume that this criminal has already been convicted under § 924(c), therefore any additional conviction would carry a minimum mandatory sentence of 25 years. This criminal may rationally conclude that he is better off killing a witness to his crime because if he is caught, he is still likely to serve most, if not all, of his life, in prison. The Kennedy Court used this rationale—if child rapists could be sentenced to death, they would be more likely to kill their victims to avoid being caught.
Moreover, allowing drug dealers to merely possess firearms without fear of sentence enhancements may actually deter violence. A person is less likely to rob a drug dealer if he fears that the drug dealer is armed. Section 924(c), at least in theory, decreases the risk that such a dealer will be armed, and therefore increases the risk that someone else will rob them. (The robber, of course, would be eligible for a sentence enhancement if he uses a firearm.)
Another justification for § 924(c) is that it incapacitates dangerous criminals. Even assuming that incapacitating those who carry, but do not actually use, firearms promotes public safety, the extreme sentence is not narrowly tailored. Most crimes are committed by relatively young men. Very few people in their seventies commit violent felonies. There is no need to incapacitate someone for 30, 55, 80, or 105 years. The ease of which nonviolent criminals can be convicted under § 924(c) further demonstrates the weakness of the incapacitation rationale. In reality, nonviolent criminals are no more dangerous than people who legally exercise their right to bear arms. Applying § 924(c) to criminals who do not brandish or discharge guns is narrowly tailored; it’s narrowly tailored to those who do not threaten public safety. Therefore, the law applied such a way does not pass strict scrutiny. In Part VIII, I propose a revision to § 924(c) that would tighten the nexus requirement and allow § 924(c) to constitutionally apply even in nonstandard use cases.
i. Strict Scrutiny Applied to Protecting Drug Stash Cases
In terms of constitutional rights, the home is often the most protected area. This is especially true in Fourth Amendment cases. But even in First Amendment cases, the home is given more protection. For instance, while an individual cannot sell obscene material, he may possess it in the privacy of his home. Privacy in the home can even trump the First Amendment in some case. For example, the Supreme Court upheld a law such that prohibits targeting protesting at a person’s home. Giving the home special protection in the Second Amendment context makes sense. Some states have already expanded, under the “castle doctrine,” permissible uses of a gun to protect the home.
In his post-Heller appeal, Angelos argued, “Especially germane to this case…are the Supreme Court’s important and repeated pronouncements in Heller that (1) the home is an especially important locus for the exercise and protection of Second Amendment rights, and (2) unique constitutional difficulties are presented by even just the threat of severe criminal sanctions impeding the exercise of Second Amendment rights.” The Heller Court held “that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” and recognized that “[t]he prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family,’ would fail constitutional muster.”
Furthermore, if a criminal keeps his gun at his home, there is little risk to society at large. The only people who need to fear this gun are those who anger the drug dealer in his home (including police). Of course, protecting police is a valid concern, but a criminal who is willing to shoot it out with police will probably not be deterred by § 924(c) from keeping guns in his home. Furthermore, luring a criminal out of his house and away from his firearms is not difficult. In fact, in many of these cases, the criminal is arrested miles away from the guns. Moreover, a rational criminal who thought § 924(c) actually deterred drug dealers from keeping guns at their home would be tempted to commit a home-invasion robbery on the defenseless dealer. Guns at the home of a drug dealer may actually deter crime.
ii. Strict Scrutiny Applied to Emboldening Cases
To convict a defendant under the emboldening theory in a way that does not violate the Second Amendment the government should be required to prove that but for the possession of a gun or its nearby proximity, the defendant would not have committed the underlying crime. Or at the very least, the government should need to prove beyond a reasonable doubt that the criminal was more likely to engage in the underlying crime because he was emboldened to do so by the firearm. The government could accomplish this by proving that the defendant intended to use the gun to become emboldened. If the government cannot prove that, then the statute is not being narrowly tailored to the purpose of promoting public safety.
Some would argue that even if the criminal would commit the crime with or without the gun, adding the gun to the mix creates the potential of violence. When applied to cases that are only potentially, § 924(c) is not narrowly tailored. Guns always create the potential for violence; that is precisely why they are useful for self-defense. Criminals have the right not to be killed and to engage in self-defense. If a drug dealer fought off a would-be robber, he could claim self-defense. So why not allow the drug dealer to use a firearm, which in some situations, would be the only effective form of self-defense? By punishing mere possession, the government is penalizing and chilling the assertion of a constitutional right.
c. Strict Scrutiny Applied to Bartering Guns for Drugs Cases
As noted above, this is not really a Second Amendment issue because guns in bartering cases are not being used for self-defense, or even as weapons. Heller is not much help here since it states, “The Court’s opinion should not be taken to cast doubt on…laws imposing conditions and qualifications on the commercial sale of arms.” Surely, a permissible condition and qualification is that the firearms are not paid for with drugs. Nevertheless, adding years on top the sentence for the underlying drug transaction is really just punishing the gun transfer in an arbitrary and irrational way.
VI. Comparing the First Amendment With Second Amendment
The Heller Court compares the First Amendment to the Second Amendment numerous times. It compared the use of the words “the people” in both Amendments. It stated, “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” It held that both rights are not unlimited, and that both Amendments (as well as the Fourth Amendment) “codified a pre-existing right.” Those are just a few of the comparisons, which show that the Court views the Second Amendment as being very similar to the First Amendment.
Comparisons to the First Amendment may not be all that protective of the Second Amendment right. For example, obscenity has been held to be completely outside the scope of the First Amendment even though it causes little actual harm. Even an extremely attenuated use of a firearm in relation to a crime is more likely to result in harm than obscene books or films.
In terms of sentence-enhancing, one would likely look to the Supreme Court’s decision in Wisconsin v. Mitchell, which held that sentence enhancements based on hate speech do not violate the First Amendment. Part of the reasoning was that such a law would not chill free speech. “The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional ‘overbreadth’ cases. We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to establish that he selected his victim on account of the victim’s protected status, thus qualifying him for penalty enhancement.” The vision that the Supreme Court says it must conjure up is not as unlikely or attenuated as the Court seems to believe. A racist who feared being accused of a hate crime may very likely decide not to engage in racist speech if he knew that such speech could be used against him in a future trial. This would be true even if the person never committed a hate crime, but merely feared being charged with one.
Similarly, someone who sold marijuana, even if he would never use a gun to further his crimes, might decide to never carry a gun or keep one in his house out of fear of being charged under § 924(c). Because § 924(c) sentences are so harsh and must be served consecutively, innocent people will likely plead guilty to avoid the risk of decades in prison. The longer the sentence, the more likely an innocent person will plead guilty. The Angelos case is a good example. He claimed he wasn’t carrying a gun during the controlled buys, but after the government threatened to charge him with five § 924(c) counts mandating 105 years, he wanted to plead guilty. But the government wouldn’t let him.
As Ryan S. King, a Policy Analyst for the Sentencing Project testified, “Plea bargaining also reduces the likelihood that issues of innocence or misconduct by law enforcement during arrest will receive an airing before the court….However, in order to litigate any of the aforementioned issues, a defendant frequently must decide to forego an offer of a plea bargain and face a potentially more severe mandatory sentence in order to pursue his or her constitutional right to trial.”
Not only are issues of innocence and misconduct not given their day in court, but so are constitutional issues. If a defendant pleads guilty out of fear of an extreme sentence, he may never have a chance to litigate whether the law as applied to him was even constitutional. It is in these nonstandard uses cases where the defendant is more likely to be actually innocent of the § 924(c) charge. Juries may find that the firearm was used in furtherance of a crime, even though it really wasn’t. All of this serves to chill the exercise of the Second Amendment.
Section 924(c) is specifically meant to chill a criminal’s Second Amendment right. The law’s purpose was “to persuade the man tempted to commit a Federal felony to leave his guns at home.” And, of course, even leaving his guns at home can trigger § 924(c), so the Second Amendment’s right to defend the home is also chilled. A drug dealer might not plan his deals in advance, but only sell drugs about town if the opportunity arises. Such a dealer, to be free from § 924(c), would have to never be armed. Drug dealers are probably more likely to be the victims of violent crimes both at home and on the street. The government would say that protecting drugs with a gun is exactly what § 924(c) is trying to prevent. But don’t criminals have a right to protect themselves? Taking away a criminal’s right to bear arms could result in an extrajudicial death sentence.
There is a better First Amendment case than Wisconsin v. Mitchell or the line of obscenity cases to use to understand the Second Amendment. That case is Brandenberg v. Ohio, which held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Under Brandenberg, the settled standard for speech that advocates unlawful activity, the Court created an extremely strict test for when such speech could be punished. The speaker must intentionally incite others to commit imminent unlawful acts, and the speech must be likely to do so. Some speech may actually incite lawful activity in the future and it would still be protected, even if it is likely to do so. And speech that could but is not likely to incite imminent illegal activity also cannot be punished. While the analogy is not perfect, in the Second Amendment context, the harm should be likely. Discharging a gun or even brandishing a gun is not only likely to cause harm but does cause some harm, even if no one is physically hurt. But is merely possessing a gun likely to cause harm? After the fact, the answer is obviously no. But like in Brandenberg situations, we have to look at the point at which the crime occurs.
In Part VIII, I propose a revision to § 924(c) to make it comport with the Second Amendment. I suggest the law should be rewritten to incorporate a Brandenburg-type standard, where the government must prove that the defendant intended to use the gun in a way that would cause imminent harm and that it be likely to do so. If the government cannot prove these elements of the crime, then the law is not narrowly tailored to those cases that would further the goal of public safety.
VII. Are Criminals Completely Outside the Scope of the Second Amendment?
Instead of apply strict scrutiny, a court may decide that people who engage in criminal activity have waived their Second Amendment rights altogether. Just as a court might hold that felons or mental defectives are categorically outside the scope of the Second Amendment, a court might hold that criminals, too, forfeit their Second Amendment rights. The Heller Court stated, “Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” This is disturbing language. This is not saying that certain uses of firearms are outside the scope of the Second Amendment, for example, using guns to rob a bank, but rather that certain citizens can be totally “disqualified” from exercising their Second Amendment rights. This differs greatly from First Amendment jurisprudence. A court would likely never say that a citizen is completely disqualified from the exercise of the First Amendment, but rather courts have held that certain categoriesof speech (not people) are not protected.
Disqualifying categories of citizens from exercising a fundamental right is nothing new. Felons are disqualified from exercising the fundamental right to vote, as were African-Americans and women at one time. One justification for denying felons the right to vote is that the Fourteenth Amendment seems to allow for this. But there is no textual equivalent found in the Second Amendment. The right is a “right of the people.” In U.S. Verdugo-Urquidez, Justice Rehnquist wrote, “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by ‘the People of the United States.’ The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to ‘the people.’ See also U.S. Const., Amdt. 1 (‘Congress shall make no law … abridging … the right of the people peaceably to assemble’) (emphasis added); Art. I, § 2, cl. 1 (‘The House of Representatives shall be composed of Members chosen every second Year by the People of the several States’) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”
Rehnquist, not surprisingly, was using this reasoning to show that Mexican citizens who reside in Mexico are not “people” for Fourth Amendment purposes. Even so, Heller itself makes much of the Second Amendment’s “the people” language and even quotes the above passage from Verdugo-Urquidez. Heller recognized, “In all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.”
Criminals, of course, are people and “part of a national community.” Criminals do not forfeit their Fourth Amendment rights; in fact, they are usually the ones who have standing to assert them. Similarly, criminals maintain their First Amendment rights of free speech and free exercise of religion. Therefore, criminals should not automatically shed their Second Amendment rights either.
VIII. A Proposed Revision of § 924(c) to Cure Second Amendment Concerns
Assuming that strict scrutiny applies to laws that regulate the right to bear arms and that criminals are not completely outside the scope of the Second Amendment, the following is a proposed revision of § 924(c) to make it constitutional. The proposed additions are in bold, with the proposed deletions indicated by strikethrough.
18 U.S.C. § 924(c)(1)(A) …[A]ny person who, during and in relation to any crime of violence or drug trafficking crime…actually uses or carries a firearm, or who, with the specific intent of using that firearm as a weapon in furtherance of any such a crime, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime be sentenced to a term of imprisonment of not less than 5 years….
The proposed revision also has the language “as a weapon” to eliminate the absurd applications of § 924(c) such as bartering drugs for guns, using the gun to scratch an itch, or using the gun handle to break a window. But the most important change is, of course, the addition of the “specific intent” language. If a criminal discharges, brandishes or even threatens to use the firearm, his specific intent to use that gun in furtherance of a crime is easily proven. However, if the criminal merely possesses the firearm on his person or at his home, then the prosecution must prove beyond a reasonable doubt that he possessed the gun with the specific intent using it to further a crime. In emboldening scenarios, the prosecution must prove that the defendant actually intended for the firearm to embolden him to commit the crime. And in passive protection of narcotics cases, the prosecution carries the burden of demonstrating that the defendant actually kept his guns where he did with the specific intent of using them to protect his drug stash.
Without requiring proof of specific intent, the right to keep and bear arms would be unconstitutionally chilled. This change is similar to the Brandenburg standard in advocacy of illegal activity cases. There, the prosecution must prove that the defendant intended to incite unlawful activity. Here, too, the prosecution must prove intent. Brandenburg also requires that the advocacy is intended to incite imminent unlawful activity, and that it is likely to do so. While I did not explicitly include “imminence” or “likelihood” language, the imminence requirement is represented by the “during” language. So, for example, even if the prosecution could prove that the defendant kept a gun with the specific intent of using it as a weapon in furtherance of a crime, but only for some future crime, § 924(c) would not apply. And because the firearm is required to be “actually” used during and in relation to a crime in furtherance of that crime, the furtherance is not only likely, but actual. (The physical harm itself does not have to be actual, only likely due to the actual use.)
Even as a matter of public policy, this revision is an improvement in terms of deterrence. It is not so much that we want to deter the criminal from keeping or carrying firearms, but rather we want to deter the criminal from using the firearms in furtherance of his crime. If a drug dealer is in possession of a gun, and the police stop him, there’s not much to deter him from further using the gun to escape, especially if his mere possession is a second offense with a 25-year mandatory minimum. However, if the criminal is approached by police, and he has no fear of an enhancement unless he actually uses his firearm, then he will be more likely not to actually use it.
This standard admittedly provides even stronger rights to keep and bear arms than any state. For example, in Washington state, it is enough to show that the gun was easily accessible and readily available for defensive or offensive purposes to allow for a sentence enhancement. I would require that not only was the gun easily accessible and readily available, but also that the defendant actually intended to use the gun in furtherance of a crime.
IX. The Eighth Amendment Meets the Second Amendment
If convictions based on a weak nexus, like Angelos’s, are not reversed due to the Second Amendment, extreme sentences under § 924(c) could possibly be reduced due to the Second Amendment’s affect on the Eighth Amendment. The Eighth Amendment of the Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Courts have held that excessive sentences violate the Eighth Amendment’s Cruel and Unusual Punishments Clause.
Even Judge Cassell, the trial judge in the Angelos, believed that the sentence he imposed was excessive, yet he still imposed it. Mandatory minimum sentences tend to only lengthen because it’s always easier for politicians to increase sentences rather than decrease them, and § 924(c) is no exception. These sentences are therefore more and more likely to be excessive. As Judge Cassell observes, “There’s a kind of ratchet effect where the Republicans will say, ‘We want a five-year mandatory minimum sentence,’ and the Democrats will say, ‘We’ll up you, we want a 10-year mandatory minimum sentence,’ and you have people ratcheting up sentences to the point where any reasonable observer would think we’ve gone too high, but there’s no political incentive to undo the mischief.” But is this “mischief” unconstitutional?
A. The Eighth Amendment Analysis in Angelos, Pre-Heller
In Lockyer v. Andrade, the Supreme Court recognized that Justice Kennedy’s concurrence in Harmelin v. Michigan provides the correct proportionality analysis when it comes to determining if a sentence violates the Eight Amendment. Justice Kennedy provided three factors: 1) the nature of the crime and its relation to the punishment imposed; 2) the punishment for other offenses in the same jurisdiction, and 3) the punishment for similar offenses in other jurisdictions.
Judge Cassell applied these three factors to Angelos’s sentence and held that they all favor an Eighth Amendment violation. Unfortunately, the analysis did not end there, especially given how “unjust, cruel, even irrational” Cassell considered the sentence he imposed. Cassell decided that Tenth Circuit and Supreme Court precedent requires him to rule that the 55-year sentence is not unconstitutional: “In Hutto v. Davis, the Supreme Court held that two consecutive twenty-year sentences—totaling forty years—for possession of nine ounces of marijuana said to be worth $200 did not violate the Eighth Amendment. If Davis remains good law, it is hard [to] see how the sentence in this case violates the Eighth Amendment….[I]f 40 years in prison for possessing nine ounces [of] marijuana does not violate the Eighth Amendment, it is hard to see how 61 years for distribution sixteen ounces (or more) would do so.”
The obvious response is that 40 years in prison for possessing nine ounces of marijuana is not “good law.” If this is not excessive punishment, it is difficult to imagine what would be considered excessive punishment using Kennedy’s proportionality analysis. Or as Angelos argues, “[A] jurisprudential line must be drawn beyond where some ‘extraordinary case’ exists in which an extreme prison sentence is found to be constitutionally excessive. If the case of Weldon Angelos does not cross such a line, then that line is illusory.”
On appeal, the Tenth Circuit applied the Harmelin factors, but unlike Judge Casell, it held that “the first, and controlling, ‘factor’ in Harmelin, i.e., whether the sentence at issue is grossly disproportionate to the crime, has not been satisfied.” The court reasoned that the Eighth Amendment contains a “narrow proportionality principle,” meaning that “the Eighth Amendment does not require strict proportionality between crime and sentence,” but rather “it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”
The Court noted that, “Although the Supreme Court has reviewed Eighth Amendment challenges to a number of state and federal sentences, it has struck down only two of them over the past century.” In 1910, the Supreme Court invalidated a sentence of fifteen years in chains and at hard labor for the crime of falsifying a public document. And in 1983, the Court held that a life sentence without the possibility of parole for a nonviolent recidivist who wrote a bad check violated the Eighth Amendment. Actually the Court did strike down a sentence for being excessive under the Eighth Amendment in at least one other case: In Robinson v. California, a 1962 case that held that a 90-day jail sentence for being addicted to narcotics violated that Eighth Amendment, Justice Potter Stewart famously wrote, “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”
The Tenth Circuit stated, “The Supreme Court has noted that the ‘basic purpose’ of § 924(c) is ‘to combat the “dangerous combination” of “drugs and guns.” ’ ” The Court concluded that the sentence is therefore not “grossly disproportionate” because “the lengthy sentences mandated by § 924(c) were intended by Congress to (a) protect society by incapacitating those criminals who demonstrate a willingness to repeatedly engage in serious felonies while in possession of firearms, and (b) to deter criminals from possessing firearms during the course of certain felonies.” But as argued above, the deterrence and incapacitation rationales in cases such as Angelos’s are extremely weak.
B. The Eighth Amendment Analysis in Angelos, Post-Heller
Even assuming Angelos’s sentence was not “grossly disproportionate” pre-Heller, such a sentence could be deemed unconstitutionally excessive post-Heller. Currently, Angelos’s lawyers are arguing that “because Eighth Amendment review is informed by society’s ‘evolving standards of decency’ as to what constitutes ‘cruel and unusual punishment,’ an evolved understanding of the Second Amendment’s broad protection of an individual’s right to possess firearms as developed in Heller directly impacts the 55-year sentence imposed on Angelos, which consists almost entirely of 18 U.S.C. § 924(c) counts for gun possession. Simply put, Angelos’s ultimate sentence was enhanced by many decades based on his efforts to ‘keep and bear arms.’ ”
In reality, the Tenth Circuit judges would very likely rule that Heller would have no affect on their reasoning. According to them, the sentence would still not be grossly disproportionate, even though it now involves a constitutional right. However, the Heller decision might have made the difference for Judge Cassell, and it might make the difference for other judges in similar cases. Judge Cassell obviously thought Angelos’s case was a borderline one. He even held that the sentence failed Kennedy’s proportionality analysis. He only upheld the sentence due to precedent. If, however, he could have distinguished the precedential cases from Angelos because those cases did not involve a constitutional right, those cases would not have been precedential, and Angelos’s sentence might have been reduced to comport with the Eighth Amendment (as influenced by the Second Amendment).
The same year that Heller was decided, the Supreme Court decided Kennedy v. Louisiana, an Eighth Amendment case where the Court held that a death sentence for the aggravated rape and torture of a child would be excessive punishment unless the crime resulted in the victim’s death. If Angelos serves out his 55 year sentence, he will likely serve life in prison. As the Judge Casell observed, Angelos won’t be released until he is 77 years old, and the average life expectancy for males in the United States (disregarding that prison conditions might hasten a person’s death) is only 74 years. Therefore, in effect, Angelos will receive the same punishment as someone who rapes and tortures, but does not kill, a child.
In Justice Alito’s dissent in Kennedy, he observes that “a previously convicted child rapist [who] kidnaps, repeatedly rapes, and tortures multiple child victims” can now only receive life in prison, while a defendant who acts recklessly while robbing a convenience store and watches his accomplice kill the store owner can receive the death penalty. But this argument also cuts the other way: A petty marijuana dealer who merely possessed a gun should not receive what, in essence, is the same sentence (life in prison) as that of “a previously convicted child rapist [who] kidnaps, repeatedly rapes, and tortures multiple child victims,” especially now that the activity Angelos was convicted of is arguably protected by the Constitution, unlike the crimes in Harmelin, Davis, and Kennedy.
Heller’s recognition of the right to self-defense alters the analysis of the first Harmelin factor—whether the sentence at issue is grossly disproportionate to the crime. The “crime” of keeping a gun in the home is arguably now less serious, even in relation to drug trafficking. Perhaps exercising a constitutional right is more like the catching a common cold than a serious crime worthy of a de facto life sentence. The sentence should be accordingly less severe.
In Trop v. Dulles, Chief Justice Earl Warren wrote the oft-quoted sentence, “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” The standards of decency regarding the Second Amendment are indeed evolving. The Kennedy Court noted, “In these cases the Court has been guided by ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice.” The Court also cited Enmund v. Florida, where the court considered “historical developments of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions of juries have made” as objective indicia of society’s evolving standards. Unlike in death penalty cases, juries in § 924(c) cases don’t decide the actual sentence, but some ethical prosecutors have refused to charge the defendant under § 924(c) because the mandatory sentences would be excessive.
As for legislative judgments, most states do not have as harsh a penalty for using a gun in furtherance of a crime. This is one reason for Project Exile—to send the cases where Congress has made the punishments extremely harsh. In Atkins, where the Supreme Court held that executing the mentally retarded violated the Eighth Amendment, the Court made much of the direction of legislative change: “It is not so much the number of these States that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more unpopular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.”
Unless Heller’s recognition of an individual right to keep and bear arms is purely symbolic, it will serve to decriminalize certain firearm-related conduct. The decision, of course, is not 100% symbolic because it suddenly made legal what was once illegal under the District of Columbia’s firearms laws. Therefore, this is an example of the Court itself being easier on crime. And so long as the recently enacted state constitutional rights are not purely symbolic, they too would be going in a less-tough-on-crime direction, and no state has recently repealed its right to bear arms provision.
Of the 44 states that have a state constitutional right to bear arms, many of them have been enacted or strengthened relatively recently. Since 1978, twelve state’s have amended “their constitutions to add protections for the individual right to bear arms.” Each state amends its constitution differently, but presumably they are all done by the will of the people, often by a supermajority of either the people or the legislature. Although state constitutions are easier to amend than the U.S. Constitution, a change in a state constitution, especially if it is harder to enact than a statute, indicates how important the people consider the measure. Thus, while courts often look to legislative enactments as one of the best objective indicia of the evolving standards of decency, a court should look at a state constitutional amendment as even more powerful indicia of the evolving standards of decency.
In terms of some legislative enactments, divining the evolving standards of decency regarding firearms is difficult. For example, “[s]ince 1990, twenty-nine states have passed legislation permitting the concealed carrying of firearms and a total of thirty nine states now have such laws.” This suggests an expansion of the right to bear arms. However, tough-on-crime statutes like the ever-harsher § 924(c) suggest that the right, at least for those who commit crimes, may be contracting.
The direction and growing quantity of legal scholarship also suggests that standards of decency are evolving. “Among legal scholars, the Second Amendment…has received ever-increasing attention over the last decade [from 1985 to 1995].” “Virtually all of the scholarship of the last 20 years [1975 to 1995] concurs that the Second Amendment was originally intended to guarantee an individual right.” This scholarship may have even paved the way for Heller itself. Forty years ago most people assumed that the Second Amendment was a collective right for militias. Now, relatively suddenly, many scholars and five members of the Supreme Court have recognized an individual right to bear arms.
“The inquiry does not end there, however,” the Court notes, “Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.” The Supreme Court looks to its own understanding and interpretation of the Eighth Amendment’s application to the crime in question. “[I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty….We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures.”
In Heller, the Supreme Court just created a precedent for at least one aspect of the crime in question—individuals possessing firearms—based on “its own understanding of the Constitution and the rights it secures.” And Kennedy itself created another precedent—one about excessive punishment, based on “its own understanding of the Constitution and the rights it secures.” Now is the time to use these precedents and decide that a de facto life sentence for passive gun possession related to petty drug dealing is excessive and violates the Eighth Amendment.
If Angelos’s sentence does violate the Eighth Amendment, how excessive a punishment is too excessive? A bright line rule such as no death penalty for rapists who do not kill their victims is easy to apply, but if we agree that some sentence enhancement is allowable so long as it is not excessive, where do we draw the line? Perhaps the enhancement should be tied to the punishment of the underlying crime. If selling marijuana can get you five years, then carrying a gun while dealing, at most, add another five years. Some might argue that while selling drugs is not dangerous, adding a gun to the equation suddenly makes a non-dangerous offence dangerous and the whole is greater than the sum of the two crimes. But enhancements for repeat offenders could be five or more times the punishment for the underlying crime. In nonstandard use cases, where the gun is not brandished or discharged, this seems unconstitutionally excessive. The punishment should be tied to the moral culpability of the defendant and the harm caused by his actions, not based on weak deterrence and incapacitation arguments. Currently, the government does not have to prove that the defendant actually intended to use the firearm in furtherance of a crime. And in nonstandard use cases, the harm is only potential harm that never transpired. As Judge Cassell suggests, Congress should change § 924(c) to allow for 25-year multiple sentences to apply only to true recidivists. Furthermore, judges should be given the discretion over whether the § 924(c) sentences run consecutively or concurrently to each other and to the underlying crime. The length of the sentences themselves should be discretionary, not mandatory.
Heller announced that the people have an individual right to keep and bear arms. Even criminals should have this right, so long as they don’t intend to actually use the firearm to further the predicate crime (with a narrow definition of “use”). Laws like § 924(c) that punish citizens for possessing firearms with only an attenuated relationship to a crime are not only bad public policy, but, because they chill and penalize the exercising of a constitutional right and are not narrowly tailored to further a compelling interest, they are also unconstitutional. Even assuming such laws are not invalidated by the Second Amendment, overly harsh penalties in firearm cases, like those found in Angelos, violate the Eighth Amendment’s prohibition against excessive sentences. Or, as Judge Cassell writes in his Angelos opinion, Angelos’s 55-year sentence under § 924(c) is “cruel, unjust, and even irrational.” Now that Heller has recognized an individual right to bear arms, perhaps courts will rightly reverse convictions like Angelos’s or, at the very least, greatly curtail such sentences. Not to do so is cruel, unjust, irrational, and unconstitutional.
 U.S. v. Angelos, 345 F.Supp.2d 1227, 1230 (D. Utah 2004).
 Id. at 1246.
 Id. at 1231.
 Id. The police also searched Angelos’s girlfriend’s apartment and found cash, two more guns and duffle bags with marijuana residue. Id.
 18 U.S.C. § 924(c)(1)(A)(i) & (C)(i).
 § 924(c)(1)(D)(ii).
 The five § 924(c) counts “consisted of two counts for the Glock seen at the two controlled buys, one count for three handguns found at [Angelos’s] home, and two more counts for the two guns found at the home of Mr. Angelos’ girlfriend.” Angelos, F.Supp.2d at 1231.
 Id. at 1230.
 Id. at 1230-31.
 D.C. v. Heller, 128 S.Ct. 2783 (2008).
 Kennedy v. Louisiana, 128 S.Ct. 2641 (2008) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
 Smith v. U.S., 508 U.S. 223 (1993).
 D.C. v. Heller, 128 S.Ct. 2783, 2817 (2008).
 Id. at 2787.
 Id. at 2821-22.
 Id. at 2818 n.27 (“[T]his law [which the Court invalidated], like almost all laws, would pass rational-basis scrutiny.”)
 See, e.g., Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007).
 Heller, 128 S.Ct. at 2821 (citing Nat’l Socialist Party of Am. v. Skokie, 432 U.S. 43 (1977) (per curium).
 Heller, 128 S.Ct. at 2816-17. Presumably, Scalia accepts these prohibitions because they are “longstanding.”
 Id. at 2817 n.26.
 Libby’s sentence was commuted so he never served any time, but he still has a felony conviction.
 Id. at 2816 (citing Near v. Minnesota, 283 U.S. 697 (1931)).
 E.g., compare Katz v. U.S., 389 U.S. 347 (1967) (holding that the Fourth Amendment protected privacy, not just property, and applied to conversations in a phone booth) with U.S. v. Leon, 468 U.S. 897 (1984) (creating a “good faith” exception to exclusionary rule).
 Brandenberg v. Ohio, 395 U.S. 444 (1969) (per curiam).
 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (students have the right to wear black armbands to school in protest of the Vietnam War).
 See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (mildly lewd speech at school assemblies can be punished); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (school officials can censor student newspapers); Morse v. Frederick, 127 S.Ct. 2618 (2007) (schools can suspend students who display banners at school-sponsored events that read, “BONG HiTS 4 JESUS”).
 State v. Neff, 181 P.3d 819, 830 (Wash. 2008).
 Heller, 128 S.Ct. at 2821 (emphasis added).
 Section 922(g) prohibits felons, fugitives, mental defectives, drug users, drug addicts, illegal aliens, dishonorable discharges, U.S. citizens who have renounced their citizenship, those subject to a restraining order, or those who have been found guilty of misdemeanor domestic violence to ship, transport, receive, or possess firearms and ammunition. 18 U.S.C. § 922(g)(1)-(9).
 John Reichmuth & Shawn Halbert, Defending Federal Firearm Cases, available at http://www.fd.org/pdf_lib/Halbert_Trial_gun_outline.pdf.
 Wikipedia, http://en.wikipedia.org/wiki/Project_Exile (last visited Dec. 12, 2008).
 18 U.S.C. § 3624(b). Federal prisoners can only earn 54 days per year for good behavior. Id.
 U.S. v. Angelos, 345 F.Supp.2d 1227, 1233 (D.Utah 2004) (citing H.R.Rep. NO. 90-1577 at 1698, 90th Cong., 2d Sess., 7 (1968), 1968 U.S.C.C.A.N. 4410, 4412).
 114 Cong. Rec. 22, 231-48 (1968) (Statement of Rep. Poff).
 Angela LaBuda Collins, Note, The Latest Amendment to 18 U.S.C. § 924(c): Congressional Reaction to the Supreme Court’s Interpretation of the Statute, 48 Cath. U. L. Rev. 1319 (1999).
 Thomas A. Clare, Note, Smith v. United States and the Modern Interpretation of 18 U.S.C. § 924(c): A Proposal to Amend the Federal Armed Offender Statute, 69 Notre Dame L. Rev. 815, 823 (1994).
 Clare, supra note 39, at 824.
 18 U.S.C. § 924(c)(1)(D)(ii).
 Clare, supra note 39, at 826.
 Id. at 825-26.
 U.S. v. Stewart, 779 F.2d 538, 539 (9th Cir. 1985)).
 Clare, supra note 39, at 827 (citing Smith v. U.S., 508 U.S. 223 (1993); U.S. v. Garrett, 903 F.2d 1105, 1111 (7th Cir.), cert. denied, 498 U.S. 905 (1990) and others).
 U.S. v. Evans, 995 F.2d 891 (D.C.Cir. 1989), cert. denied, 494 U.S. 1019 (1990).
 Clare, supra note 39, at 828.
 Smith v. U.S., 508 U.S. 223, 246-47 (1993) (Scalia, J., dissenting) (internal citations and quotes omitted).
 Smith v. U. S., 508 U.S. 223 (1993).
 Id. at 226-27. (quoting § 924(c)(1) “[I]f the firearm is a machinegun, or is equipped with a firearm silence,” the sentence is “thirty years.”)
 Id. at 242 (Scalia, J., dissenting).
 Id. at 232.
 Even the dissent does not take the example to this extreme and agrees that while scratching an itch would be “use,” it would not be “during and in relation to” the crime. But the dissent does think that if a robber used a gun handle to break a window, he now could be held to violate § 924(c) under the majority’s reasoning. Id. at 243 n.2 (Scalia, J., dissenting).
 Id. at 237.
 Id. at 238 (citing U.S. v. Stewart, 779 F.2d 538, 539 (9th Cir. 1985)).
 Id. at 238 (citing Stewart, 779 F.2d at 540) (emphasis added).
 Id. at 239 (quoting U.S. v. Harris, 959 F.2d. 246, 262 (per curiam)).
 893 F.2d 1404 (D.C. 1990) (per curium), cert. denied, 498 U.S. 893 (1990).
 Id. at *2.
 Clare, supra note 39, at 838. (citing U.S. v. Pace, 10 F.3d 1106, 117 (5th Cir. 1993)).
 U.S. v. Acosta-Cazares, 878 F.2d 945, 951-52 (6th Cir. 1989), cert. denied, 493 U.S. 899 (1989).
 Michael J. Riordan, Using a Firearm During and in Relation to a Drug Trafficking Crime: Defining the Elements of the Mandatory Sentencing Provision of 18 U.S.C. § 924(c)(1), 30 Duq. L. Rev. 39 (1991) (citing U.S. v. Wilson, 884 F.2d 174, 177 (5th Cir. 1989)).
 Clare, supra note 39, at 838.
 Id. at 844.
 U.S. v. Torres-Medina, 935 F.2d 1047, 1048 (9th Cir. 1991).
 Clare, supra note 39, at 845.
 Torres-Medina, 935 F.2d at 1050 (citing U.S. v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)).
 Torres-Medina, 935 F.2d at 1050 (emphasis added).
 Id. at 1049 (emphasis added).
 Eugene Volokh, Volokh Conspiracy, available at http://volokh.com/posts/1215651727.shtml.
 683 P.2d 571, 594 (Wash. 1984).
 Id. at 595.
 Id. The court cites numerous cases to support this proposition: “United States v. Jackson (capital punishment provision of Federal Kidnapping Act unconstitutionally chilled Fifth Amendment right not to plead guilty and Sixth Amendment right to demand jury trial); State v. Frampton (previous Washington death penalty statute needlessly chilled defendant’s right to plead not guilty and demand a jury trial); Griffin v. California (drawing adverse inference from defendant’s failure to testify unconstitutionally infringed on defendant’s Fifth Amendment rights)[; and]…State v. Mace (defendant’s post-arrest silence cannot be viewed as evidence of guilt).” Id. (internal citations omitted).
 Id. at 596 n.9. (citing State v. Krantz, 164 P.2d 453 (Wash. 1945), which upheld a statute that forbade violent convicts to possess pistols).
 Rupe, 683 P.2d at 596.
 Id. at 597.
 State v. Neff, 181 P.3d 819 (Wash. 2008) (en banc).
 Washington’s constitution provides, “The right of the individual citizen to beararms in defense of himself, or the state, shall not be impaired,but nothing in this section shall be construed as authorizingindividuals or corporations to organize, maintain or employ anarmed body of men.” Wash. Const. art. I, § 24.
 State v. Valdobinos, 122 Wash.2d 270, 282 (1993).
 Neff, 181 P.3d at 824 (citing State v. Schelin, 55 P.3d 632 (2002); State v. Valdobinos, 858 P.2d 199 (1993)).
 Neff, 181 P.3d at 824.
 Id. (citing State v. O’Neal, 150 P.3d Wash.2d 1121 (2007)).
 State v. Valdobinos, 858 P.2d 199 (1993).
 Neff, 181 P.3d at 824
 Id. (internal quotations and citations omitted).
 Id. at 825.
 Id. at 829 (Sanders, J., concurring in part and dissenting in part)
 Id. at 830 n.2.
 Id. at 830 n.3.
 Id. at 830.
 Id. at 831.
 Even Congress recognized the difference between brandishing, discharging, and merely possessing a firearm. While mere possession has a mandatory minimum of five years, brandishing carries a mandatory seven-year minimum, and discharging a gun carries a mandatory ten-year minimum. 18 U.S.C. § 924(c)(1)(A)(i)-(iii). Oddly, under § 924(c), a person faces 30 years for two counts of merely possessing a gun in furtherance of a crime, but face only 10 years if he actually discharged the gun.
 D.C. v. Heller, 128 S.Ct. 2783 (2008).
 Winkler, supra note 20, at 686.
 Heller compares the Second Amendment with the First numerous times. See Part VI.
 Winkler, supra note 20, at 707 (quoting the First and Second Amendments).
 U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”)
 U.S. Const Const. amend. II (“A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”).
 Winkler, supra note 20, at 696.
 U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”) (emphasis added).
 Erwin Chemerinksy, Constitutional Law: Principles and Policies 540 (3d ed. 2006) (emphasis added).
 See generally Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L J. 309 (1991);
 The Sentencing Project, Do More Prisoners Equal Less Crime? A Response to George Will, available at http://www.sentencingproject.org/Admin/Documents/publications/will_overall%20response.pdf.
 Testimony of Ryan S. King before the Standing Committee on Justice and Human Rights, House of Commons, December 6, 2006, Ottawa, Ontario.
 For example, content-neutral restrictions on speech—such as time, place, and manner laws—trigger intermediate scrutiny as does commercial speech.
 Winkler, supra note 20, at 689.
 Chemerinsky, supra note 109, at 541-42.
 Id. at 542.
 U.S. Const. amend. 21 (repealing the 18th Amendment which prohibited the “manufacture, sale, or transportation of intoxicating liquors within…the United States”).
 See generally John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005).
 The Sentencing Project, supra note 111 (emphasis in the original).
 Kennedy v. Louisiana, 128 S.Ct. 2641 (2008).
 Stanley v. Georgia, 394 U.S. 557 (1969).
 Frisby v. Schultz, 487 U.S. 474 (1988).
 Summary Judgment Motion of Petitioner-Appellant, Angelos v. U.S., page 8. (emphasis in the original).
 D.C. v. Heller, 128 S.Ct. 2783, 2821-22 (2008).
 Id. at 2817-18 (internal citation omitted).
 Id. at 2786.
 Id. at 2790-91.
 Id. at 2791-92 (internal citations omitted).
 Id. at 2799 (emphasis in original) (internal citations omitted).
 Id. at 2797 (emphasis in original).
 Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993).
 Testimony of Ryan S. King before the Standing Committee on Justice and Human Rights, House of Commons, Dec. 6, 2006, Ottawa, Ontario.
 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).
 Heller, 128 S.Ct. at 2822 (emphasis added).
 “An estimated 5.3 million individuals are unable to vote because of laws that deny this fundamental right to participate in the democratic process to those with felony convictions. These restrictions fall disproportionately on African Americans, with 13% of black males currently unable to vote.” The Sentencing Project, supra note 111.
 “[T]he right to vote…[shall not be] denied to any of the male inhabitants…except for participation in rebellion, or other crime.” U.S. Const. amend. XIV, § 2 (emphasis added). Felons arguably have a greater interest in the law than the average citizen and should therefore have a say in who makes these laws. This was the primary justification for giving 18-year-olds the right to vote when they were being drafted to fight and die in Vietnam. Similarly, a criminal may have a greater need to exercise his Second Amendment rights than the average citizen.
 U.S. v. Verdugo-Urquidez 494 U.S. 259, 265 (1990) (Of course, Rehnquist was using this logic to show that Mexicans in Mexico are not “people” for Fourth Amendment purposes).
 Heller, 128 S.Ct. at 2791.
 Id. at 2790-91.
 Geoffrey Fattah, Former Federal Judge is Striving for Balance, Deseret Morning News, Nov. 23, 2007.
 538 U.S. 63, 64 (2003).
 501 U.S. 957 (1991).
 U.S. v. Angelos, 345 F.Supp.2d 1227, 1230 (D. Utah 2004).
 In Harmelin itself, the Court held that the imposition of a life sentence without the possibility of parole for the possession of 650 grams of cocaine was constitutional as did Kennedy using his own proportionality analysis.
 Memorandum in Support of Motion for Partial Summary Judgment to Vacate Portion of Sentence Pursuant to 28 U.S.C. § 2255 of Petitioner-Appellant, U.S. v. Angelos. When Angelos originally appealed his sentence to the Tenth Circuit, an amicus brief was filed that included “former federal judges, United States Attorneys General, and high-ranking United States Department of Justice officials, contend[ing] the district court erred in concluding that the fifty-five year sentence mandated in his case by § 924(c) did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.” U.S. v. Angelos, 433 F.3d 738, 750 (10th Cir. 2006).
 Id. at 753.
 Id. at 750 (citing Ewing v. California, 538 U.S. 11, 20 (2003), which in turn quoted Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (internal citations and quotation marks omitted).
 Id. at 750.
 Weems v. United States, 217 U.S. 349, 367 (1910).
 Solem v. Helm, 463 U.S. 277 (1983).
 370 U.S. 660, 667 (1962).
 Angelos, 433 F.3d at 751 (quoting Smith v. U. S., 508 U.S. 223, 240 (1993) which in turn quoted Muscarello v. U.S., 524 U.S. 125, 126 (1911)).
 Angelos, 433 F.3d at 751 (citing Ewing v. California, 538 U.S. 11, 24-28 (2003); Harmelin v. Michigan, 501 U.S. 957, 998-99 (1991).
 Response in Opposition to Government’s Motion to Strike Angelos’s Motion for Partial Summary Judgment., Angelos v. U.S.
 Oddly, the Kennedy Court stated that some nonmurderer defendants may still be eligible for the death penalty, so long as the crimes are against the State, including “treason, espionage, terrorism,” and, oddly, “drug kingpin activity.” Kennedy v. Louisiana, 128 S.Ct. 2641, 2659 (2008). Even though Angelos’s underlying crime involved drugs, he was hardly a drug kingpin.
 U.S. v. Angelos, 345 F.Supp.2d 1227, 1239 (D. Utah 2004).
 Kennedy v. Louisiana, 128 S.Ct. 2641, 2676 (2008) (Alito, J., dissenting).
 Trop v. Dulles, 356 U.S. 86, 101 (1958) (holding that taking away an American’s citizenship violated the Eighth Amendment).
 Kennedy, 128 S.Ct. at 2650.
 Id. (citing and quoting Enmund v. Florida, 458 U.S. 782 (1982)).
 Atkins v. Virginia, 536 U.S. 304, 315-16 (2002).
 Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191 (2006), available at http://www.trolp.org/main_pgs/issues/v11n1/Volokh.pdf.
 Winkler, supra note 20, at 702-03. However, a couple of the constitution revisions favor more firearm regulation. For example, in 1990, Florida added some very specific, non-constitution-sounding language to its provision, requiring “a mandatory period of three days, excluding weekends and holidays, between the purchase and delivery at retail of any handgun.” Fla. Const. art. I, § 8).
 Winkler, supra note 20, at 702-03.
 Determining the evolving standards regarding the right to bear arms depends on how generally that right is defined. If defined as the general right to bear arms in self-defense, the right is expanding; however, if the right is defined more narrowly as the right of those who engage in crimes to defend themselves, the standards may be evolving in the opposite direction.
 David B. Kopel, Clayton E. Cramer & Scott G. Hattrup, A Tale of Three Cities: The Right to Bear Arms in State Supreme Courts, 68 Temp. L. Rev. 1177, 1178 (1994).
 Id. at 1178 n.2. (citing numerous articles supporting this provision and considerably less rejecting the individual rights theory).
 Kennedy, 128 S.Ct. at 2650.
 Id. at 2658 (internal citations and quotes omitted).