Prosecutors urge federal judge to reject Mobile man’s constitutional challenge to felon gun ban

By Brendan Kirby

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    MOBILE, Alabama (WALA) — The U.S. Attorney’s Office has responded to a motion to dismiss firearms charges against a convicted felon, rejecting claims by the defendant’s attorney that laws banning gun possession by felons are unconstitutional.

The lawyer for Anthony Lee Jackson relied on a landmark U.S. Supreme Court decision last year striking down a century-old New York State law restricting people from carrying concealed guns. The high court ruled that gun laws are constitutionally suspect unless similar regulations were in place during the founding era.

In his response, Assistant U.S. Attorney Scott Gray, contended the ban on gun possession by convicted felons “fits neatly within the history and tradition of firearm regulations in the United States.”

Gray argued that prior rulings by the U.S. Supreme Court and the 11th U.S. Circuit of Appeals allow restrictions on gun possession by felons. He pointed the 2008 District of Columbia v. Heller decision, which recognized that the Second Amendment guarantees an individual right to gun ownership.

“Heller’s historical analysis reveals that the Second Amendment protects only the law-abiding, not lawbreakers like Jackson,” he wrote.

Mobile police arrested Jackson, 36, of Mobile, in August last year after finding that he had a pair of guns in a car near his home. A federal grand jury indicted him in February based on prior convictions for drug-related offenses and receiving stolen property that made him ineligible to have guns. A grand jury last month added a second gun charge, citing another date where he was alleged to have illegally possessed firearms.

Jackson challenged the original indictment on grounds that police improperly relied on the city’s gunshot-detection system, ShotSpotter. Chief U.S. District Judge Jeffrey Beaverstock rejected that in July.

Then Assistant Federal Defender Colin Fitzpatrick launched the constitutional challenge.

The U.S. Attorney’s Office, in its response coted a trail of legal precedents dating to English common law, which forms the basis of American law. The English Declaration of Rights specifically excluded Catholics, for instance, according to the response.

Gray wrote that there are few early laws disarming felons since the death penalty was such a common penalty, even for offenses like counterfeiting.

“Given the ubiquity of capital punishment, the founding generation had little reason to worry that felons would later access a gun,” he wrote.

Gray cited five examples of gun laws from the early 19th century and the 1700s that did restrict groups considered dangerous or disloyal – including Massachusetts and Pennsylvania statutes from the year of the Declaration of Independence in 1776

“Other early laws reinforce these points,” he wrote. “Numerous jurisdictions disarmed groups that the government deemed to be dangerous or otherwise incapable of possessing firearms. … The United States has identified clear historical comparators to (the current federal statute). This Court should deny Jackson’s motion.”

Gray cited the following examples”

A 1776 law in Massachusetts recommending disarmament of felons, foreigners and others who “refuse to associate to defend by arms the United American Colonies” from the British. A 1776 Pennsylvania law empowering the colonel in command of every militia battalion to seize arms that “are in the hands of non-associators in the most expeditious and effectual manner in his power.” According to the Duke University Center for Firearms Law, that applied to “Felons, Foreigners and Others Deemed Dangerous By the State.” A 1777 Virginia statute excluding from militia service “imported servants” and others refusing to take an oath. According to the Duke center, that applied to “Felons, Foreigners and Others Deemed Dangerous By the State.” A 1763 Pennsylvania law prohibiting citizens form providing guns to American Indians. An 1813 Illinois law prohibiting citizens form providing guns to American Indians. Gray rejected arguments by the defense that early restrictions on guns do not apply to Jackson because he is a loyal American.

“His past felony convictions say otherwise,” he wrote. “Indeed, Jackson’s conduct evinces a high level of disloyalty toward the rule of law. In addition, his offenses are dangerous.”

Gray added that Jackson’s past convictions include drug crimes, which he wrote commonly are associated with guns: “Jackson certainly poses a heightened danger to the public if he is armed.”

If the judge does not dismiss the case, Jackson will have a non-jury trial next week.

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