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Federal judge says Boston man's conviction for illegal gun possession not a violation of the Second Amendment

A federal judge today rejected a Boston man's argument that the Second Amendment lets him walk around with a gun if he feels like it and upheld his three-year jail sentence for unlawful possession of a firearm and possession of a firearm with an obliterated serial number.

US District Court Judge Allison Burroughs also rejected Edson Silva's argument that prosecutors failed to prove he did not actually have a license, which he had claimed violated his rights to a fair trial.

According to summaries of the facts of the case by Burroughs and by Silva's attorney, Rosemary Scapicchio, Silva and another man were walking down Harrow Street around 2:15 a.m.on Jan. 17, 2009. Police and Silva differed over what happened next - police recovered a gun and reported Silva taunting them they had no proof it was his; Silva's attorney said two cops decided simply to go after a couple of black men walking down the street minding their own business - but police charged Silva for possession of the gun and he was convicted on gun charges at a trial in Boston Municipal Court and sentenced to three years in jail and probation after that.

The Massachusetts Appeals Court upheld his gun convictions and the Supreme Judicial Court declined to hear his case. He then filed a request to have a federal judge reexamine the case on several grounds, including the Supreme Court's 2008 Heller decision, which overturned Washington, DC's ban on gun ownership and said Americans have the right as individuals to own guns. In her memorandum to Burroughs on why she should re-examine Silva's conviction and detention, Scapicchio wrote:

Under the 2nd Amendment, individuals are guaranteed the right to possess and carry weapons in case of confrontation; this right cannot be infringed upon by the federal or state government.

But Burroughs said Scapicchio seriously overreached with that argument. The Heller decision, Burroughs wrote, outlawed total bans on gun ownership, but did not say that states could no longer put any restrictions on gun ownership. She noted that in a follow-up case, the Supreme Court wrote:

Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

And so, Burroughs wrote:

[T]the Supreme Court did not recognize a general, unlimited right to carry a firearm outside the home in either case.

She added that, in New England specifically, the US Court of Appeals for the First Circuit ruled in 2017 that Massachusetts cities and towns can regulate gun ownership.

Burroughs also rejected Scapicchio's arguments about the issue of proving whether or not Silva actually had a gun license. Scapicchio argued prosecutors failed to prove he did not have one, which forced him to prove he did have one - in violation of his due-process rights. But Burroughs said Massachusetts law and court rulings leave it up to the defendant to make part of his defense that he had a license and that, in any case, the law at both levels requires a jury to find a defendant guilty beyond a reasonable doubt on the core crimes with which he was charged.

Because licensure was a factual element of Silva’s affirmative defense and not an element of the crime charged, Silva’s lack of a license did not need to be proven beyond a reasonable doubt by the prosecution in order to support the conviction.

Burroughs also rejected an argument that the Massachusetts Appeals Court did not adequately consider numerous constitutional issues Silva raised in his appeal, through a footnote in its decision that it didn't overlook them, it's just that

We find nothing in them that requires discussion.

Burroughs noted the court devoted considerable space detailing why it was rejecting three of Silva's arguments and that Silva failed to show the footnote means the court didn't consider the rest; that, in fact, sometimes judges can consider an issue and simply not find them worthy of discussion.

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PDF icon Judge's ruling172.04 KB
PDF icon Scapicchio's argument to free Silva414.17 KB