Case Summary : United States v. Arzberger, 592 F.Supp.2d 590 (S.D.N.Y.) (Dec. 31, 2008)

Summary: United States v. Arzberger, 592 F.Supp.2d 590 (S.D.N.Y.) (Dec. 31, 2008). In a prosecution for possessing and receiving child pornography, the U.S. Government moved to modify the defendant's bail by adding conditions required by the Adam Walsh Amendments to the Bail Reform Act (18 U.S.C. § 3142). One of these conditions was a prohibition of possession of firearms. Upon defense objection, the District Court utilized the traditional two-step due process analysis found in Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989), as well as the balancing test enumerated in Mathews v. Eldridge, 424 U.S. 319 (1976). The Court declined to impose the firearms prohibition as a condition of bail, holding that the Second Amendment establishes a constitutionally protected liberty interest. This “private” interest was of such “paramount” importance that to require its’ surrender without an opportunity to contest the reasonableness of such surrender was unconstitutional.

Practice Note: This case presents an interesting application of Second Amendment principles to Eighth Amendment considerations. More importantly, itrecognizes that the Second Amendment creates a protectable liberty interest in the right to possess firearms.