Second Amendment

Felon in possession ban, concealed weapon

Where a defendant argued that an unlawful firearm possession law was unconstitutional as applied to him, the defendant forfeited his claim by failing to address the issue of whether the Second Amendment protected his conduct in carrying a weapon concealed in a vehicle, and his applied challenge failed under the plain error standard.  Opinion concurring in judgment, Kelly, J.:  “I agree that Adams’ conviction for violating 18 U.S.C. §922(g)(1) should be affirmed.  I write separately because I disagree with how the court analyzes Adams’ Second Amendment challenge.  When presented with similar arguments, our sister circuits have used a sensible, two pronged approached to consider whether application of §922(g)(1) to a particular individual comports with the Constitution’s protection of the right to keep and bear arms.  Instead of following that sound approach, the court focuses on a factual circumstance not before the District Court and not addressed by the parties:  that Adams’ firearm was concealed.  This fact, even if it were supported by the record, would not be relevant to Adams’ conviction because §922(g)(1) applies regardless of the manner in which the firearm is possessed.  It likewise should have no bearing on his ability to argue that his conviction under that section is unconstitutional.”  Judgment is affirmed.

U.S. v. Adams, 16-2529, appealed from the Western District of Missouri, Colloton, J.

Criminal Defense Attorney Lynne Torgerson was not attorney of record in this case.

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