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"Heller is hollow"


"Heller is hollow"

("Heller is hollowā€¯; from Writ of Certiorari, USSC)


ISSUE I.   Does Florida's "10-20-Life" law, requiring a 20 year mandatory minimum prison sentence for any discharge of a firearm during an aggravated assault (even, as here, for a warning shot from a legal revolver fired in self-defense of one's home), violate Heller's core conclusion that the Second Amendment "surely elevates above all other interests the right of law abiding responsible citizens to use arms in defense of hearth and home"? (District of Columbia v. Heller.___S.Ct.___, 25-B Fla. L. Weekly Fed #-497 (June 26, 2008)

      Florida's "10-20-Life" law, section 775.087 Fla.,Stat., requires a 10-year mandatory minimum prison sentence for possession and use of a firearm, and a 20-year mandatory minimum sentence, as here, for any discharge of a firearm during the commission of certain felonies, including the aggravated assault charged here. Since any use of a firearm, even in self- defense, will always be, at least, by definition, an aggravated assault (a threat, with a deadly weapon), any citizen in Florida who uses a legal firearm in self-defense will face the harsh mandatory sentence of "10-20-Life", regardless of his background or circumstances. Since self- defense is an affirmative defense, the defendant must first admit to the aggravated assault, of displaying a firearm, or discharging a firearm, here firing a warning shot to warn off what was believed to be home invaders.

      The right to "keep and bear" a firearm in Heller is meaningless without a right to use firearms in self-defense, without a fear of harsh mandatory prison terms. If a defendant in Florida uses any deadly weapon other than a firearm in self-defense he will not be subject to 10-20-Life, but (for assault) only to a 5-year maximum sentence. Florida's 10-20-Life law has created two types of aggravated assaults, an aggravated assault with any deadly weapon other than a firearm (punishable by up to a 5-year sentence), and an aggravated assault with a firearm (punishable by 10, or 20 years, or life).

      Florida's 10-20-Life law thus criminalizes and harshly punishes the very weapon said by Heller to be protected by the Second Amendment of the United States Constitution. If allowed to stand, laws like 10-20-Life can be enacted in Washington D.C., for example, and will result in law-abiding citizens, with legally owned firearms, afraid to ever actually use that firearm in self- defense. To avoid the harsh mandatory penalties of 10-20-Life, any rational citizen, in a split- second decision when his life is at stake, must avoid using his legal firearm, and instead reach for a spear or sword, ax or crossbow; any deadly weapon except a firearm.

      If Heller is to have any meaning, it must begin with a rule that the use of a firearm in self-defense cannot be more severely punished than the use of any other deadly weapon.