Tuesday, February 09, 2010

U.S. v. Vongxay, No. 09-10072 (2-9-10). Defendant was convicted of being a felon in possession of a firearm in violation of 922(g)(1). He argued that Heller, 128 S. Ct 2783 (2008) invalidates prohibitions against his constitutional right to bear arms. The 9th finds that his arguments misfire as nothing in Heller casts doubt upon the constitutionality of 922(g)(1). The panel (M. Smith joined by Bright and Hawkins) went through Heller, and found that it recognized that the Second Amendment could be limited, and that nothing in the opinion was to be taken to cast doubt on prohibitions against felons in possession. The 9th's precedents on this matter also continue to hold sway. The 9th joins the other courts that have considered this issue. As for the search claim, the 9th affirms the district court's finding that the defendant, by raising his hands, had consented to the search that led to a gun being found in his waistband.


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