There is one arguable exception to this trend. Two judges have struck down a part of the Adam Walsh Child Protection and Safety Act, named after the murdered son of John Walsh, the host of the television show “America’s Most Wanted.” The act says that people accused of child pornography offenses must be prohibited from possessing guns while they await trial.
That provision may well have been unconstitutional as a matter of due process even before Heller, as it seems to impose a punishment before conviction. But two courts have struck down the provision based partly on the fact that a fundamental constitutional right is at stake.
“A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm,” Magistrate Judge James C. Francis IV of the Federal District Court in Manhattan wrote in December. Heller changed that, he said.
“The right to possess a firearm is constitutionally protected,” Judge Francis wrote. “There is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.”
