Appeals Court Rules: ‘2nd Amendment is Not a Property-like Right to a Specific Firearm’

Last week, a three-judge panel from the 5th U.S. Circuit Court of Appeals dismissed a lawsuit that argued police in New Orleans violated the Second Amendment rights of a man by refusing to return to him a seized firearm the officers took from him in 2008. 

Errol Houston Jr. was arrested for drug and firearm-related charges in 2008.  As a result of the arrest, which stemmed from a traffic stop, the police confiscated his pistol.  However, those charges were later dropped.

Once Houston’s name was cleared, he attempted to get his registered gun back from the authorities.  They refused to return the gun.  So, with the help of the American Civil Liberties Union of Louisiana, Houston sued the Orleans Parish district attorney’s office.

district-jdugeIn 2010, Houston’s case went before U.S. District Judge Jay Zainey, who dismissed the claims on the grounds that Houston “failed to allege sufficient facts to show how authorities violated his right to bear arms by retaining his pistol.”

Houston and his counsel appealed the decision to the 5th U.S. Circuit Court of Appeals. 

Last Wednesday, in a majority opinion (2-1), a three-judge panel upheld the previous ruling by Judge Zainey, arguing that just as some regulation of speech –e.g., of obscenity and defamation–is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second.

In other words, “The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense,” Judge Rhesa Hawkins Barksdale wrote.

The ruling went on to say that because Houston has not alleged defendants prevented his “retaining or acquiring other firearms,” he has not, therefore, been deprived of his Second Amendment right to keep and bear arms.

One judge on the panel, Judge Jennifer Walker Elrod, rejected that the Second Amendment doesn’t apply to specific firearms. 

“In carving out such an exception from the Second Amendment, today’s majority impermissibly treats the Amendment as a ‘second-class right,’” Judge Elrod wrote in her dissenting opinion. 

5th-circuit “It is particularly unfortunate for our circuit to endorse the atextual, ahistorical rule that the Second Amendment does not protect particular firearms,” she added.

The ACLU of Louisiana applauded Judge Elrod’s dissent, and is now considering asking the entire 5th Circuit to review the case. 

“Sure, (Houston) could go buy another firearm, but he shouldn’t have to because he already owns one,” Marjorie Esman, executive director of the ACLU of Louisiana, told the Associated Press.

In the lawsuit, Houston also claimed that the District Attorney’s office had a policy of keeping firearms following arrests regardless of whether charges are filed. 

In 2009, the current District Attorney Leon Cannizzaro said in an interview, according to the AP, that the office decides on a “case by case basis” whether to keep or return seized firearms. 

“There is no policy that we will not return weapons,” he said in the interview.

Picture Courtesy of AP

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