Lifetime Firearm Ban Less Severe Than Driver's License Suspension

There's an interesting case in the 8th Circuit regarding the right to a trial by jury as protected by the Sixth Amendment for domestic assault.  What particularly piqued my interest was not the DUI charge, but rather a comparison that was made by the court when making a reference to existing Sixth Amendment case law.

In United States v. Jardee, the defendant was charged with assault and battery under 18 USC 113(a)(4).  That crime carries a maximum six months of imprisonment and/or $5,000 fine, which makes it a Class B Misdemeanor and a petty offense under federal statutory law.

Previously,  the Supreme Court has ruled that a Sixth Amendment jury trial only applies to serious and not petty offenses (Lewis v. United States, 1996; Duncan v. Louisiana, 1968).  Initially, the determination of whether a Sixth Amendment jury trial was applicable relied upon if it has been historically applicable under common law.  However, more recently the courts have relied upon the penalties for a particular crime as a framework for determining the applicability of a jury trial.

The defense claims that the additional unlisted penalty of a lifetime prohibition on firearm possession — 18 USC 922(g)(9), affirmed by United States v. Hayes (2009) — must also be considered in this determination because a conviction would subject the defendant to this part of federal law.  The argument is that if this additional penalty is considered, then the penalty becomes severe enough that Jardee is entitled to a jury trial under the Sixth Amendment.

There are conflicting precedents in this particular case.  United States v. Chavez (11th Circuit 2000) and United States v. Combs (D. Neb. 2005) both agree that the penalty under 18 USC 922(g)(9) does not impose a significant enough penalty to invoke a Sixth Amendment jury trial.  However, United States v. Smith (N.D. Okla. 2001) found the opposite.  But what the 8th Circuit is basing their opinion on is how Smith relied substantially on Richter v. Fairbanks (8th Circuit 1990).

In Richter, the 8th Circuit held that while the six month maximum imprisonment for the defendant's third DUI only qualified the charge as a petty offense, the additional 15 year suspension of all driving privileges was significant enough to qualify the charge as a serious offense where a Sixth Amendment jury trial should have been conducted.

Now here's where it gets interesting.  The 8th Circuit states that while the Supreme Court has previously instructed that courts look at the state legislatures for determining the seriousness of a crime, it was alright in Richter to reclassify otherwise.  However, it goes on to say that because the "legislature" the enacted the firearms prohibition penalty with respect to domestic violence is Congress rather than a state legislature this particular case does not fit into the Supreme Court's framework for determining whether a crime is petty or serious.

The 8th Circuit states that a strict reading of Chavez, Combs, Smith, and Richter would suggest that a lifetime loss of the right to keep and bear arms "is simply a collateral consequence and does not affect whether the offenses are 'serious' for purposes of the Sixth Amendment."

In the next paragraph, they go on to say that "while there is no question that a lifetime prohibition against possessing weapons is a substantial infringement upon one's rights (District of Columbia v. Heller, 2008), it is not of the same order of magnitude as the severe deprivation of liberty that results from six months’ incarceration..."  However, a temporary suspension of driving privileges apparently does.

This could go on to be a rather interesting case for the application of a Sixth Amendment jury trial to an offense that bears the loss of one's right to keep and bear arms.  Of course, Footnote 1 in Jardee (attached below) should bring a little humor in how a federal court misquoted the Constitution in a case involving Constitutional law.