Metropolitan News-Enterprise


Thursday, November 21, 2013


Page 3


C.A. Upholds Laws Prohibiting Felons From Possessing Firearms


By JUSTIN LEVINE, Staff Writer


The Second Amendment does not prohibit laws that prevent convicted felons from keeping firearms or ammunition in their homes for self-protection, the Third District Court of Appeal ruled yesterday.

The court, in an unpublished opinion, affirmed Nickolas John Andrade’s conviction and 16-month prison sentence for possession of a firearm by a felon, possession of ammunition by a felon, and receiving stolen property. He had been previously convicted on federal charges of manufacturing methamphetamine, according to court records.

Justice Andrea Hoch, writing for the Court of Appeal, explained that Andrade drew the attention of police by routinely engaging in the buying and selling of stolen property. When officers arrived on his doorstep, Andrade admitted to them that he was a felon and had a rifle and handgun in his home.

He told them where the guns were located and allowed an officer to enter his house to retrieve them. A .22-caliber rifle was found with a loaded magazine, while .44-caliber handgun was found unloaded with five rounds nearby.

Hoch rejected the argument that Andrade had a constitutional right to possess the weapons. Citing supporting cases from the Third and Eleventh circuits, she wrote that “while the Second Amendment protects the right of law-abiding citizens to possess firearms for lawful purposes, and particularly self-defense within one’s home, ‘a felony conviction disqualifies an individual from asserting that interest…This is so, even if a felon arguably possesses just as strong an interest in defending himself [or herself] and his [or her] home as any law-abiding individual.’”

Andrade argued that he and his wife obtained the firearms for self-defense after he had been pistol-whipped by thieves who ransacked his house and threatened both of them.

He testified at his trial that the guns were necessary to protect his family, stating:

“I know I can put a .44 round through the front door, and once they hear that thing go off, it’s not no little pop gun. You and I, everybody I know, would be very fearful hearing a large powerful weapon go off. And it’s my belief that would be enough to send these people flying from my front door if they decided to try to do something in there. And if they continued, God bless it, I would have to blast away at them. Simple as that. I give them a chance. If [they’re] not going to let it go, still going to come after me, I have my wife to protect. That’s my interest. This is a beautiful young woman. It would kill me to have something happen to that gal. Just kill me. I couldn’t handle it...I’m not going to bury that woman. Hell no. I’ll die first. I’ll die blasting away at them with that .44.”

Hoch said that even if the court assumed that Andrade possessed the firearms strictly for purposes of self-defense, his “status as a convicted felon” disqualified him from asserting protections under the Second Amendment.

“This is so, even if a felon arguably possesses just as strong an interest in defending himself [or herself] and his [or her] home as any law-abiding individual,” said Hoch, quoting the case of United States v. Marzzarella (3d Cir. 2010) 614 F.3d 85.

The justice said that even if Andrade’s status as a convicted felon was not enough to withstand a facial challenge under the Second Amendment, his case would still fail “as applied” to the facts of his conviction.

“Aside from defendant’s felony conviction,” Hoch wrote, “the evidence reveals he was engaged in ongoing criminal activity at the time the firearms and ammunition were found in his home. And while defendant undoubtedly intended to use the firearms to defend himself and his wife from intruders, the need for such defense was created in no small part by the fact defendant bought and sold stolen property out of his house. Thus, even if defendant’s status as a convicted felon did not, by itself, remove him from the category of law-abiding responsible citizens protected by the Second Amendment, his ongoing criminal behavior certainly does.”

The case is People v. Andrade, C069679.


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