Lowery v. US - Cert Petition

[Al Norris]

A law that the defendant was convicted of, was valid at the time of the arrest and subsequent conviction. In Lowery v. U.S., petition for certiorari, the SCOTUS has requested a response.

The D.C. Circuit decision.

On appeal, the rules had changed. Heller ensued and the 2A became a valid claim. After orals and before the decision, the rules changed again. McDonald was decided.

Here, the prosecution did prove that Mr. Lowery did not have a registered firearm (in 2006). Nor did Lowery attempt to use a 2A argument that would have preserved that argument in appeals. So the court reasoned that since he did not have a registered handgun and he did not preserve his 2A argument, they did not need to remand as they did in another case (Plummer).

The prosecution did, however inadvertently, prove that Lowery was not a disqualified person. This was pointed out by the dissent who argued that since Lowery was not a disqualified person, the case should have been remanded for further consideration, like the court did with Plummer.

In essence, the Circuit majority used a technical ruse to not have to look at an innocent mans conviction.

Here is the question being asked in the petition:

Whether the “right to keep and bear arms” protected by the Second Amendment of the United States Constitution as enunciated in District of Columbia v. Heller, 554 U.S. _____, 128 S..Ct. 2783, 171 L.Ed. 637 (2008) applies retroactively to a person who possessed a handgun in his own home without a registration certificate that was not obtainable at that time by ordinary, law-abiding citizens; and had not asserted his Second Amendment right at a trial held prior to Heller.

This is the third criminal case to ask for cert, wherein the "criminals" were convicted solely by malum prohibitum law. This also makes the third criminal case that may define the scope of the second amendment right to keep and bear arms.

As in the other two cases, someone at the Court is interested enough to "request" a reply by the respondents.

This just reinforces my opinion that we will hear a 2A case this session. This is not coincidence.

[Aguila Blanca]

Considering that the 2nd Amendment was written and adopted over 200 years ago, one would certainly hope the Court would find that it applied "retroactively" to an arrest and prosecution within the last decade. It ain't like it's a NEW law, after all ...

[NatoRepublic]

Order for extending time for response was granted by SCOTUS, response is now due Nov. 12.

Nothing unusual or surprising, just an update on it.

[Al Norris]

Thanks for that, NR.