As judges sending defendants to jail for violating unconstitutional laws …

by Larry Pratt

Only in America! Imagine you are charged with violating an obscure federal criminal statute that you believe unconstitutional — beyond the power of the Congress to enact under the Tenth Amendment. Most Americans would think you could challenge the constitutionality of that law — right? Not so fast. The U.S. Court of Appeals for the Third Circuit determined that you have no right to challenge the constitutionality of the law under which you were charged on the ground that Congress exceeded its authority. Sound Kafkaesque?

To protect the rights of gun owners who could be charged with crimes, GOA & GOF filed an amicus curiae brief in the U.S. Supreme Court in the case of Carol Ann Bond v. United States -- and helped achieve a victory in September which has huge implications for gun rights. Here’s what the case is about.

Mrs. Carol Ann Bond learned that her next door neighbor was pregnant. Then she learned that her own husband was the father of the neighbor’s child. In an attempt to injure the woman, Bond stole chemicals from the laboratory where she worked, and laced the woman’s car door and mailbox handle. The neighbor was able to detect and mostly avoid the chemicals, but reported the matter to the police, who did nothing. The neighbor then told her postal carrier. Postal inspectors videotaped Bond placing the chemicals. However, rather than turning the case over to local authorities to pursue an assault charge, the Postal Service arrested Bond, and quite literally “made a federal case out of it.”

Gun Owners of America and Gun Owners Foundation don’t usually spend time writing briefs to help housewives get away with trying to kill their husband’s mistress, but the principle involved is bigger than this case.

Eventually, Bond was convicted in a federal district court of violating a federal statute, 18 U.S.C. 229(a), passed by Congress in order to implement this country’s obligations under the Chemical Weapons Convention of 1993. This statute provides broadly that “it shall be unlawful for any person knowingly ... to ... acquire [and] use ...any chemical weapon....” The U.S. Attorney applied the law as if a treaty, which was designed to halt the international spread of chemical weapons by nation-states, was applicable to Pennsylvania housewives.

At trial, Bond claimed that her assault on her neighbor was a state matter, outside the power of Congress to criminalize, even under the Supreme Court’s sweeping treaty and interstate commerce decisions. However, the trial court rejected her claim, believing that the Constitution’s “necessary and proper” clause authorized such a statute. That’s bad enough, but it gets even worse.

On appeal, the Third Circuit never got around to addressing the merits of Bond’s claim. Instead, the appeals court decided that Bond had no legal standing to challenge her conviction. The Court believed that, while defendants generally can challenge the constitutionality of criminal statutes, a Tenth Amendment challenge can only be brought by one of the 50 states. Thus, the appeals court concluded, Bond would need the State of Pennsylvania to join her in challenging the federal law.

Why does this matter to gun owners? Well, consider the amicus brief GOA and GOF filed on behalf of the Montana Shooting Sports Foundation in a case now pending in the U.S. Court of Appeals for the Ninth Circuit. In it, we argued that federal gun laws do not apply to wholly intrastate transactions in firearms, and that any laws regulating such transactions would violate the Tenth Amendment. If a firearm is made, shipped, sold, and used entirely within Montana, then there is no “interstate commerce” for Congress to regulate.

But under the Third Circuit’s rule in the Bond case, Congress would be free to unconstitutionally regulate wholly intrastate firearms. Thus, prosecutors would be free to charge gun owners with unconstitutional crimes, and the federal courts (at least in the Third Circuit) would put the icing on the cake by claiming those gun owners had no standing to challenge their convictions.

If a housewife can’t challenge her conviction as a proliferator of chemical weapons, then perhaps owners of intrastate firearms can’t challenge the federal laws that have sent them to prison. Such a precedent cannot be allowed to stand.

What makes this case especially interesting procedurally is that after the Third Circuit issued its opinion, the federal government changed its position, and agreed with Bond that she does have standing. So the federal government joined in asking that the Third Circuit be reversed. As a result, the Supreme Court took the extraordinary step of appointing a law professor to defend the Third Circuit’s decision, since the government no longer supported it.

That is not the only issue at stake in this case, though. While the government and Bond both agreed that Bond has standing, neither believe that all criminal defendants have standing. Both the government and Bond’s lawyer believe that Courts should have the flexibility to refuse to consider whether criminal laws are unconstitutional based on policy reasons. The GOA/GOF amicus brief rejects this notion.

For a person to have standing, federal courts apply a three part test — injury (whether the injury is real), causation (whether the injury was caused by the challenged action), and redressibility (whether the Court can fix the problem). But it’s never that simple. In past decades, federal courts have created what are called “prudential considerations” to avoid hearing cases that they don’t want to decide. Courts have dismissed cases if they might lead to an increase in federal litigation, and where lots of people share the same injury. These judicially-created doctrines have allowed courts to pick and choose which cases they want to hear, often resulting in meaningless distinctions being drawn between nearly-identical cases.

Our brief explains that even federal judges are bound by the Constitution. Article III, Section 2 states that the judicial power “shall extend” to “all cases arising under the Constitution.” And once the requirements are met, courts have a duty — not just an opportunity — to hear a case. As the Supreme Court said in 1821, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Simply, if the framers had wanted to qualify that language with “prudential considerations,” they could have done so.

Finally, the GOA/GOF’s amicus brief discusses the rampant increase in the number of federal crimes in recent years. Recent studies have estimated the number of federal statutes with criminal penalties associated with them to be over 4,000, with the exact number indeterminable. Books such as Craig Roberts’ The Tyranny of Good Intentions highlight this vast “federal overreaching.” Congress has lost sight of the founders’ vision of a federal government with limited, enumerated powers, which left most government business to states under their traditional police powers. The Constitution gives Congress the explicit authority to criminalize certain actions — treason, counterfeiting, and piracy — and not much more. It is clear that the federal government was never given the general “police powers” that Congress now presumes itself to have.

Fortunately, the Supreme Court struck down the Third Circuit’s opinion, permitting Bond to challenge her conviction. The court held that the principle of federalism, as protected by the Tenth Amendment, is designed not simply to protect the states from federal encroachment; rather, the whole point of protecting the states is to thereby protect the liberty of citizens from an overreaching federal government.

Thus, the Court determined that, when Bond challenged the federal law under the Tenth Amendment, she was not asserting the Pennsylvania’s rights, but rather her own. Unfortunately, Justice Kennedy indicated that courts still could “prudentially” refuse to consider a criminal laws’ unconstitutionality.

However in an excellent concurring opinion, from an unusual source, Justice Ruth Bader Ginsburg made the encouraging statement that “a court has no ‘prudential’ license to decline to consider whether the statute under which [Bond] has been charged lacks constitutional application to her conduct.” Rather, Justice Ginsburg said, a court “must entertain the objection,” and that Bond’s challenge “must be considered and decided on the merits.” Justice Ginsburg understands that if a court can simply invoke “prudential considerations” to refuse to hear a challenge to a criminal law, the defendant would have been convicted without due process of law, which includes the right to challenge the validity of the law.

In truth, the best way to restore federalism in America is to eliminate most of the federal criminal code, which is now used to make individuals fearful of the federal government, and to restore the federal government to its role as the servant, not the master.