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Sentencing Law and Policy
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Second Amendment, gun enhancements, constitutional doubt and Angelos

By Douglas Berman

I have just read the DC Circuit’s blockbuster opinion in Parker (available here), which holds that the District of Columbia’s gun control laws violate an individual’s Second Amendment rights (first noted here).  As Jeralyn at TalkLeft spotlights here, any fan of individual liberties ought to be a fan of Parker.  And, as Eugene Volokh spotlights here, it will be intriguing to watch how Parker plays out politically in the months ahead.  (I am wondering if any leading Democratic nominee will be smart enough to embrace Parker or if any leading Republican nominee be foolish enough to condemn it.)

Of course, I read Parker with an eye on sentencing issues, particularly wondering what Parker could mean for some sentencing enhancements if courts were to seriously enforce the right of “keeping a handgun in the home” recognized in Parker.  Specifically, in the wake of Parker, defendants facing sentencing enhancements based on having guns in their homes likely can and should raise constitutional objections based on the Second Amendment.  And courts, applying constitutional doubt doctrines, probably should now be more cautious about broad applications of sentencing enhancements based on having guns in the home.

The notable case that came to mind as I thought about these issues is the case of Weldon Angelos (basics here, early commentary here and here).  As I recall, one of 25-year sentence enhancements in the Angelos was premised solely on guns found in Weldon’s home.  If Weldon Angelos had an individual Second Amendment right to keep these guns in his home, isn’t the 25-year sentence enhancement he endured as a result of exercising this right constitutionally suspect?

UPDATE: The folks at The Volokh Conspiracy have taken up this issue and provide a lot of on-point analysis here and here.  I generally share the view that Second Amendment arguments against gun sentence enhancements still face an uphill battle, but that reality should not prevent counsel from raising these issues (and courts from addressing these issues head-on).