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August 2018

SCOTUS and the 2nd Amendment – A Primer

By | The Blanch Blog LA | No Comments

Between all the news on gun violence, the shooting in Toronto, and Supreme Court nominee Brett Kavanaugh’s purported opinion on guns and the 2nd amendment, a primer on the Supreme Court and gun rights might be useful.

Generally speaking, there is very little case law from the Supreme Court concerning the second amendment and gun laws. But within the latter part of the 20th century, litigation concerning whether the right to bear arms was an individual right or the right for militia members became more frequent. In 1991, Former Chief Justice Warren Burger famously referred to the Second Amendment of “one of the greatest pieces of fraud… on the American public by special interest groups” in his lifetime.

In 2008, the 2nd Amendment was clarified by the Court’s holding in District of Columbia v. Heller, when it announced that there is an individual right to have a gun in someone’s house for their own defense. This holding was re-affirmed and applied to the states and the federal government in a subsequent case. But, there are limitations to the right (just as there are limitations to the other rights, particularly the First Amendment). The Heller court made it clear that the 2nd Amendment does not bar the government from being able to regulate firearms, and provided examples: the government can limit access to felons or the mentally ill, or in certain places like government buildings. There can also be terms and conditions or other qualifications on the commercial acquisition of guns.

Yet, since Heller, the Court appears reluctant to hear any more 2nd amendment cases. The Court has refused to hear a California case on its waiting-period and a challenge to a ban on concealed-carry weapons outside of the home. It’s also refused to hear cases regarding bans on assault weapons or individuals accused of domestic violence. Lately, though, the Justices did hear a case concerning the straw purchase of someone with a record of domestic violence in a 5-to-4 decision. The Court held that they cannot get a third party to purchase a gun on their behalf.

There are some theories as to why the Court has been so historically reluctant to address the issue of gun rights further. Perhaps they believe that their holding was sufficiently clear in Heller, and there is no need to wade into the bog further. Or, perhaps they believe that some issues should be clarified, but they are not sure they would get the votes to deliver justice. The Court requires four votes to hear cases, and in the past, it has apparently lacked the numbers to grant a review, often because of Kennedy’s unsure vote. Or (most likely) perhaps it is because the Justices themselves have continuously evolving opinions on the matter, and are hesitant to turn that vacillation into precedent.

Regardless, it is clear that the newest nominee has pretty strong feelings on the Second Amendment’s position in the Constitution. He reportedly believes that there is very little room for any gun control that would be constitutional. In one opinion, he likened a ban or regulation on a type of firearms as equivalent to a ban on a category of speech. It appears that in the future, Kavanaugh would be a vote in favor of hearing a challenge to a firearms regulation, which could have a significant impact on the state of gun laws in the United States in the next few decades.

Opioid Criminal Defendants

By | The Blanch Blog LA | No Comments

The opioid crisis across the country is something that all levels of government – from city mayors up to the White House – have been grappling with for the past year. Fatal overdoses have overwhelmed municipal resources, and now there are fingers pointing at the powerful pharmaceutical drug lobby. Yet the crisis continues to evolve, with more people getting swept up in its negative side effects – bystanders to fatal overdoses getting criminally charged.

In one case out of Philadelphia, two neighbors were addicted to the same drug – heroin. One night, J.M., the neighbor, asked Alexandria Santa Barbara to get him some heroin and handed her $10.00. She got the heroine for him, but it was laced with Fentanyl, a powerful and deadly synthetic drug. Whether or not she knew it, her neighbor would die from this ‘hit’ of heroin. She is now in jail, waiting for her trial on third-degree murder charges.

Delaware County prosecutors have brought the charges of drug delivery resulting in death, a first-degree felony. If convicted, Ms. Santa Barbara faces between 20 and 40 years in prison. She is not the only who has been charged with this third-degree murder crime. In 2013, the number of people charged with this murder from an accidental overdose was 15. In 2017, that number stood at 205. This is a microcosm of reality across the nation. Twenty states have drug-induced murder laws which criminalize when someone helps another get drugs which result in their death. Another 13 states have either created or strengthened their drug-induced homicide regimes.

Most of the existing laws are a vestige of the fight against the crack epidemic in the 1980s. Prosecutors are relying on them more frequently to deter opioid users and sellers – a crisis which has taken over 63,000 Americans in 2016. Of course, the action has staunch critics. Those who are against the use of this law balk at the stretched definition of ‘dealer,’ citing that the person getting charged is usually someone who frequently shared their stash with the victim, and if things had happened differently, the other person could have died instead.

What makes these cases even more unusual is that sometimes, these defendants tried to save the person or called 911 for help. Usually, Good Samaritan laws mean that if someone administers aid, they receive immunity from prosecution. But, drug-induced homicide is an exception to this principle. Critics point to this as having a chilling effect, meaning that someone could die unnecessarily because the supplier was too scared to call for help. They also point to the fact that there is little to no evidence that enforcing these kinds of laws serve as any sort of effective deterrent.

Prosecutors and law enforcement remain sold on it, believing that the threat of serious jail time would scare casual buyers from exchanging money for drugs. The prosecution is always somewhat easier because the state does not have to prove intent. They just have to show that the drugs given to the victim were lethal and caused their death. This makes it even more challenging for criminal defense lawyers to show that their clients were not responsible for the death of an addict.