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The Case of the Gun That Wasn’t Used

by CHRISTOPHER BRAUCHLI

Although the NRA seems to be fairly capable of looking out for its own interests, from time to time it seems to overlook a stone in the legislative landscape (filled with constitutionally protected guns) that needs to be overturned.  This stone is one it has never focused on, yet it is a stone underneath which lurks a pernicious, but until now unseen, assault on the gun and its right to be carried about by the citizenry.  It is surprising the NRA has not noticed.

It came to my attention because of the case of Alleyne v. United States that was argued in the U.S. Supreme Court on January 14, 2013.  The facts of that case are unimportant for our purposes except insofar as they pertain to the presence of a gun in the criminal enterprise that is the subject of the appeal.

Mr. Alleyne was convicted by a jury of the crime of robbery but was acquitted of the charge of brandishing a gun during a robbery.  Had he been convicted of that offense the length of his sentence would have automatically been increased by seven years.  (Although acquitted of that charge the judge found that Mr. Alleyne reasonably foresaw that his friend, accomplice and co-robber, would brandish a gun and, since a gun was involved, the judge nonetheless increased Mr. Alleyne’s sentence by seven years even though Mr. Alleyne had no gun in his possession.) That case drew my attention to one of the characteristics of criminal law that is found in the criminal statutes in every one of the fifty United States.  The New York Penal Code Section 140.17 is a good example of that.

Section 140.17 says that a citizen who is exercising his/her constitutional right to carry a gun and decides to commit the crime of trespass (that does not require the use of a gun) will nonetheless, if caught, face much more severe punishment if convicted because of the fact that the citizen was carrying the gun even though the gun was not part of the criminal activity. Section 140.17 says a person is guilty of criminal trespass in the first degree when the person “knowingly enters or remains unlawfully in a building” and while there has the gun he always carries with him for protection (my words-not the statute’s).  The citizen is guilty of criminal trespass, a class D felony that is much more serious than the crime of which the trespasser would have been convicted had the gun been left at home.  Another example is found in the Colorado statutes.

The Colorado criminal law provides that a person is guilty of second degree burglary if the burglar acts without having possession of the gun that the citizen is entitled to carry for self protection,  but it becomes first degree burglary if it is on the citizen’s person even though it is not part of the burglary and is not used in the commission of the crime.

What the foregoing laws and thousands like them demonstrate is that legislators have decided to impinge on the right of the run of the mill criminal to take a weapon when engaging in criminal activity even though the gun plays no role in the crime being committed.  Because of these laws, every citizen engaged in criminal activity is forced to forego his/her constitutionally protected right to be accompanied by a gun. The chilling effect of such laws on the Second Amendment is obvious. There is no reason that a citizen who does not use a gun when committing a crime should face increased punishment simply because the citizen was exercising his Second Amendment right while committing the crime.

On July 1, 2011 the citizens of Virginia once again enjoyed the benefits of the NRA successful efforts to persuade that state’s legislature to repeal a law that had been in effect since 1993.  The repealed law provided that Virginia citizens could only buy one gun a month.  Thanks to the NRA’s efforts, Virginia citizens can now buy as many guns each month as will give them the security the Second Amendment was intended to provide. That victory behind it, the NRA will now have to spend its time protecting the cherished assault weapon that is found in so many homes around the country, a weapon whose presence among us is threatened by an activist president and a docile Congress.

Once the presence of the assault gun is assured, however, the NRA should begin a campaign to reform all the criminal laws in the country to make sure that when a criminal commits a crime that does not involve the use of a gun, neither the judge nor the jury may increase the penalty imposed upon a citizen who commits a crime  just because a gun was found in the criminal’s possession at the time the crime was committed.  Criminals around the country will be grateful for the NRA’s continuing efforts to make life easier for them.

Christopher Brauchli is an attorney based in Boulder, Colorado. He can be reached at: brauchli.56@post.harvard.edu.

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