Part VC.
Fifth Amendment
. . . . . Emerson also contends that 18 U.S.C. § 922(g)(8) violates his Fifth Amendment due process rights. He argues that the perfunctory, generic temporary orders issued in his divorce proceedings expose him to federal criminal liability for engaging in otherwise lawful conduct.
. . . . . Firearm possession is a valuable liberty interest imbedded in the Second Amendment to the United States Constitution. "[T]here is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples v. United States, 511 U.S. 600, 610 (1994). Thus, Emerson has a protected liberty interest in firearm possession under the Fifth Amendment.
. . . . . "It is wrong to convict a person of a crime if he had no reason to believe that the act for which he was convicted was a crime, or even that it was wrongful. This is one of the bedrock principles of American law. It lies at the heart of any civilized system of law." United States v. Wilson, 159 F.3d 280, 293 (7th Cir. 1998) (Posner, C.J., dissenting). It offends both substantive and procedural due process for Emerson to be convicted of a crime he did not know existed. Because 18 U.S.C. § 922(g)(8) is such an obscure criminal provision, it is unfair to hold him accountable for his otherwise lawful actions.
. . . . . The conduct this statute criminalizes is malum prohibitum, not malum in se. In other words, there was nothing inherently evil about Emerson possessing a firearm while being under a domestic restraining order. His conduct was unlawful merely because the statute mandated that it be. Wilson, 159 F.3d at 294 (Posner, C.J., dissenting). Section 922(g)(8) is one of the most obscure of criminal provisions. Here, Emerson owned a firearm, and knew or should have known that if, for example, he was convicted of a felony, he would have to relinquish ownership of his firearm. If by chance he did not know this, the sentencing judge or the probation officer would have informed him of the law. Nevertheless, when Emerson was made subject to the restraining order telling him to not harass his wife, Emerson could not have known of the requirement to relinquish his gun unless the presiding judge issuing the order told him. In this case, the state district judge did not tell Emerson, and apparently at the time of issuing the order, the judge was equally unaware of the law. Emerson's attorney did not tell him either, because Emerson did not have a lawyer. The fact that the restraining order contained no reference to guns may have led Emerson to believe that since he complied with the order, he could carry on as before. Id. at 294-95.
. . . . . Chief Judge Posner of the Seventh Circuit aptly explains the dilemma between the maxim "ignorance of the law is no excuse" and the inherent unreasonableness of criminal prosecutions involving obscure violations of law:
We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn't mean being able to go to a local law library and read Title 18. It would be preposterous to suppose that someone from [the defendant's] milieu is able to take advantage of such an opportunity. If none of the conditions that make it reasonable to dispense with proof of knowledge of the law is present, then to intone "ignorance of the law is no defense" is to condone a violation of fundamental principles for the sake of a modest economy in the administration of criminal justice.
Id. at 295.
. . . . . Section 922(g)(8) is also one of those "highly technical statutes that present . . . the danger of ensnaring individuals engaged in apparently innocent conduct", of which the Supreme Court spoke in Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939, 1946-47, 141 L.Ed.2d 197 (1998). Emerson's case differs from Bryan because the statute in this case is easy to understand, but it is hard to discover, which in the end compels the same result as demonstrated by Lambert v. California, 355 U.S. 225 (1957).
. . . . . In Lambert, a Los Angeles ordinance made it a crime for a convicted felon to remain in the city for more than five days without registering. Mrs. Lambert, a felon, failed to register. The Supreme Court held that the ordinance violated due process when applied to a person who had no notice of a duty to report. Id. at 229. The Court found that, while a legislative body may eliminate the mens rea from the elements of an offense, the constitutional requirement of due process of law places limits on this practice. Id. at 228. "[T]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Staples, 511 U.S. at 605 (citing United States v. Unites States Gypsum Co., 438 U.S. 422, 436-37 (1978)). However, eliminating the mens rea requirement is such a fundamental departure from longstanding principles of criminal law that courts have demanded an indication of legislative intent to do so. Staples, 511 U.S. at 606. Due process requires some adequate, meaningful form of a fair warning or notice to a respondent to a protective order that he will be committing a crime if he possesses a firearm.
. . . . . Because § 922(g)(8) is an obscure, highly technical statute with no mens rea requirement, it violates Emerson's Fifth Amendment due process rights to be subject to prosecution without proof of knowledge that he was violating the statute. Accordingly, Emerson's Motion to Dismiss the indictment as violative of the Fifth Amendment is granted.
D.
Tenth Amendment
. . . . . Emerson's last argument claims that 18 U.S.C. § 922(g)(8) violates the Tenth Amendment. The Tenth Amendment provides that:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. CONST. Amend. X.
. . . . . In New York v. United States, 505 U.S. 144 (1992), the Court noted that Tenth Amendment issues can be resolved in one of two ways. The court can first inquire whether an Act of Congress is authorized by one of the powers of Article I of the Constitution. Id. at 155 (citing, e.g., Perez v. United States, 402 U.S. 146 (1971); McCulloch v. Maryland, 4 Wheat 316 (1819)). In other cases the court determines whether the Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment. Id. (citing Garcia v. San Antonio Metro. Transit Auth.., 469 U.S. 528 (1985); Lane County v. Oregon, 7 Wall. 71 (1869)).
. . . . . "If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress." New York, 505 U.S. at 156 (citations omitted).
. . . . . Because the Fifth Circuit has held that Congress acted pursuant to its enumerated Commerce Clause power under Article I, Congress therefore enacted 18 U.S.C. § 922 (g)(8) pursuant to a valid grant of power in conformity with the Tenth Amendment. United States v. Pierson, 139 F.3d 501 (5th Cir. 1998). As mentioned previously, the court in Pierson held that by creating a nexus between illegal firearm possession and interstate commerce, Congress exercised its delegated power under the Commerce Clause to reach a "discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Id. at 503. Therefore, under the first line of inquiry set forth in New York, the statute is constitutional under the Tenth Amendment.
. . . . . The Court now turns to the second line of inquiry, whether the "Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment." New York, 505 U.S. at 155. In New York, the Court held that the Low-Level Radioactive Waste Policy Amendments Act of 1985 unconstitutionally "commandeer[ed] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Id. at 176 (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 288 (1981)).
. . . . . In 1997, the Court refined this analysis by holding in Printz v. United States that Congress may act pursuant to its Commerce Clause powers and still violate principles of state sovereignty under the Tenth Amendment. 521 U.S. 898, 933 (1997). In Printz, the Brady Act commandeered state law enforcement officers to perform background checks on prospective handgun owners. The Court held unconstitutional this asserted power of the Federal Government "to impress into its service --- and at no cost to itself --- the police officers of the 50 states." Id. at 922.
. . . . . By passing 18 U.S.C. § 922(g)(8), however, Congress did not violate the Tenth Amendment the way it did in New York and Printz, because here the federal government is not requiring state legislatures to pass specific laws, nor is it "commandeering" state governments into federal government service. Emerson argues, however, that § 922(g)(8) interferes with the ability of state judges to carry out their stateís domestic relations laws, thus impermissibly regulating an area reserved for the states. It is true the Supreme Court has noted that family law is traditionally an area of state concern. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979). And while it is arguable that § 922(g)(8) may offend general Tenth Amendment principles of Federalism, because Congress was acting through an enumerated power in drafting the law, and The law does not command state activity in support of it, this statute does not clearly violate the Tenth Amendment under the Supreme Courtís holdings in New York and Printz. Accordingly, Emersonís Tenth Amendment challenge to the statute fails.
III.
CONCLUSION
. . . . . Because 18 U.S.C. § 922(g)(8) violates the Second and Fifth Amendments to the United States Constitution the court GRANTS Emersonís Motion to Dismiss the Indictment. A judgement shall be entered in conformity with this opinion.
SO ORDERED.
Dated March 30, 1999.
[signed]
SAM R. CUMMINGS
UNITED STATES DISTRICT JUDGE |
