On July 3, 2014, our firm filed an amicus brief in the U.S. Supreme Court in the case Johnson v. U.S., No. 13-7120. Cases before the U.S. Supreme Court are rarely argued twice – but this is such a case. Briefed last summer, argued in November 2014, and then argued again in April 2015, Johnson v. U.S. is scheduled to be decided in the next few weeks.
It is not rare that our briefs before the U.S. Supreme Court are attacked by left-wing publications, and this is another such case. In fact, Mother Jones attacks our brief because the petitioner is “a white supremacist with a lengthy rap sheet….” Perhaps this is why ours was the only amicus brief challenging Johnson’s conviction. But cases with unsavory facts and unattractive litigants often result in bad law, particularly in the area of firearms law. We have never shied away from filing briefs in such cases. Interestingly, the Mother Jones article also observes that our brief “makes arguments … that echo liberal positions opposing the harshness of mandatory minimum sentencing and the excessive power it grants prosecutors.” It also states “a Johnson victory might also give civil libertarians reason to cheer a check on prosecutorial power.”
The petitioner, Johnson, had been convicted of being a felon in possession of a firearm. Ordinarily, the trial judge would have had discretion to sentence Johnson up to 10 years in prison. However, the judge determined that Johnson met the definition of an “armed career criminal” under federal law, thus subjecting him to a mandatory minimum sentence of 15 years.
An “armed career criminal” is a person who, among other things, has previously been convicted of three or more “violent felonies.” One of Johnson’s past felonies was nothing more than simple “possession” of a short-barreled shotgun – which the Eighth Circuit ruled to be a violent felony.
Our amicus brief argued first that, as a threshold matter, possession of a short-barreled shotgun does not constitute proof of “conduct” (which is required under the statute defining “violent felony”). The shotgun at issue had simply been found in the car in which Johnson was a passenger. “Possession” of a shotgun can involve either “actual possession” – such as holding the shotgun – or, as in Johnson’s case, “constructive possession” – which requires only knowledge of the whereabouts of the shotgun plus the ability to control it.
Johnson’s constructive possession did not constitute any “act” or physical contact with the shotgun; and, thus, he did not engage in any “conduct” according to that word’s ordinary usage. Every other crime that has been found to fit under the statute in question has involved clear conduct on the part of the defendant, such as attempted burglary, escape, vehicle flight, etc.
Indeed, the statute expressly states that unlawful “use” of explosives is a violent felony – implying that mere possession of explosives (even though intrinsically dangerous) is not. How, then, can mere possession of a short barreled shotgun (which is not intrinsically dangerous) be included? Indeed, a shotgun by itself is a danger to no one. An illegal shotgun with no federal paperwork is no more intrinsically dangerous than a legal shotgun with federal paperwork.
Next, our brief challenged the Eighth Circuit’s statement that short-barreled shotguns serve no purpose whatsoever “except for violent and criminal purposes.” Congress has made it legal for Americans to jump through some hoops and own short-barreled shotguns – which it clearly would not have done if short-barreled shotguns are only used for violent crimes. Indeed, short-barreled shotguns are widely used by law-abiding citizens, along with both the police and the military.
Thus, our brief argued that short-barreled shotguns serve many lawful and legitimate purposes, including being particularly suited for self-defense in the home. The shotgun is second only to the handgun as a top choice for home defense. A shotgun with a shorter barrel makes it more maneuverable in confined spaces within the home. This makes the shotgun more efficient and reduces the chance that the barrel will be grabbed and redirected by an assailant. A shorter barrel also reduces the forward weight of a shotgun, making it much easier to use by all persons, but especially those of smaller stature and strength.
No wonder even Joe Biden has urged women to buy a double-barreled, 12-gauge shotgun.
Following oral argument on November 5, 2014, the Supreme Court ordered supplemental briefing on the issue of whether the residual clause of the Armed Career Criminal Act is unconstitutionally vague. The parties filed supplemental briefs, and the case was re-argued on April 20, 2015. A decision by the Court is expected in the coming weeks.
Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Conservative Legal Defense and Education Fund, and Policy Analysis Center.
Copyright © 2015 William J. Olson, P.C. All rights reserved.
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This post originally appeared on Western Journalism – Equipping You With The Truth