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After firearms ruling, felons challenge ban

Supporters of gun rights gathered in June after the Supreme Court ruled that citizens can keep guns for self defense. Supporters of gun rights gathered in June after the Supreme Court ruled that citizens can keep guns for self defense. (JOSE LUIS MAGANA/ASSOCIATED PRESS)
Email|Print|Single Page| Text size + By Mark Sherman
Associated Press / July 20, 2008

WASHINGTON - Twice convicted of felonies, James Francis Barton Jr. faces charges of violating a federal law barring felons from owning guns after police found seven pistols, three shotguns, and five rifles at his home south of Pittsburgh.

As a defense, Barton and several other defendants in federal gun cases argue that last month's Supreme Court ruling allows them to keep loaded handguns at home for self-defense.

"Felons, such as Barton, have the need and the right to protect themselves and their families by keeping firearms in their home," said David Chontos, Barton's court-appointed lawyer.

Chontos and other criminal defense lawyers say the high court's decision means federal laws designed to keep guns out of the hands of people convicted of felonies and crimes of domestic violence are unconstitutional as long as the weapons are needed for self-defense.

So far, federal judges uniformly have agreed that these restrictions are unchanged by the Supreme Court's landmark interpretation of the Second Amendment.

"The line I'm proposing, at the home, is entirely consistent" with the Supreme Court ruling, said Chontos, a lawyer in Turtle Creek, Pa. A court hearing on the issue is scheduled for late July.

The legal attacks by Chontos and other criminal defense lawyers are separate from civil lawsuits by the National Rifle Association and others challenging handgun bans in Chicago and its suburbs as well as a total ban on guns in public housing units in San Francisco.

People on both sides of the gun control issue say they expect numerous attacks against local, state, and federal laws based on the high court's 5-to-4 ruling that struck down the District of Columbia's ban on handguns. The opinion by Justice Antonin Scalia also suggested, however, that many gun control measures could remain in place.

Denis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence, said Scalia was essentially reassuring people that the laws keeping guns from felons and people with mental illness and out of government buildings and schools would withstand challenges. But Henigan said he is not surprised by felons pressing for gun-ownership rights.

"The court has cast us into uncharted waters here. There is no question about that," Henigan said.

"There is now uncertainty where there was none before," he said. "Gun laws were routinely upheld and they were considered policy issues to be decided by legislatures."

At the Justice Department, spokesman Erik Ablin said the agency's lawyers "will continue to defend vigorously the constitutionality, under the Second Amendment, of all federal firearms laws and will respond to particular challenges in court."

Cities' outright bans on handguns probably are the most vulnerable laws following the Supreme Court ruling. Many lawyers and Second Amendment experts believe that restrictions on gun ownership in public housing also will be difficult to defend.

The question for courts will be whether the government has more power when it acts as a landlord, as it does in public housing, than in general.

"I think there's a very substantial chance that these kinds of ordinances will be struck down because they are aimed at people who have shown no reason to be viewed as untrustworthy," said Eugene Volokh, a law professor at the University of California, Los Angeles, who has written about gun rights.

Mayor Gavin Newsom of San Francisco has said the city will defend the policy as good for public safety. "Is there anyone out there who really believes that we need more guns in public housing?" Newsom said when the suit was filed a day after the Supreme Court's ruling.

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