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National Firearm Law Seminar, Panel 1

So here we are at the 19th Annual National Firearm Law Seminar 2016. The room this is hosted in just keeps getting bigger and bigger. First I want to congratulate NRA’s Office of General Counsel for finding a USB key for the course materials that has Level 2 retention:

USB Key

I was also surprised to see pretzels served as a breakfast food outside Philly! I’ll cover the highlights from each panel speaker. For people who follow this blog regularly, a lot of what’s discussed at the seminar is old hat, since its targeted at attorneys who may know nothing about firearms law. Most of my readers are more advanced than that, so I’ll make a certain base assumption that you already have the basics.

Panel 1:

First up is Stephen Halbrook speaking about the current state of the Second Amendment. He currently has an article in Cumberland Law Review about the history of how suppressors ended up regulated under the National Firearms Act. You can tell he’s frustrated by the massive resistance of the lower courts toward giving any real protections under the Second Amendment. Specifically he cites the case challenging the San Francisco Safe Storage law, which directly contradicted Heller, but which the lower courts upheld and the Supreme Court denied the appeal.

Next up is Joesph Greenlee, talking about the current state of 2nd Amendment law in each of the 10 federal circuit courts. Nearly every circuit has adopted the “Two Part Test,” where basically the first analysis is whether the Second Amendment is implicated at all. The second test is determining the extend of the burden imposed on the right and then applying the appropriate level of some kind of heightened scrutiny (which of course is always set at a level where the government prevails). The surprising thing is how often the federal circuit courts don’t even follow their own precedent when it comes to the Second Amendment!

Dave Kopel starts his part of the first panel by reminding everything that today is the 30 year anniversary of the Firearms Owners Protection Act becoming law, which Kopel calls “The most significant firearm civil rights reform passed by Congress to date.” Dave’s presentation was mostly around levels of scrutiny, including describing the fact that intermediate scrutiny is actually a pretty tough test. It’s a shame the courts are often trying to pass off rational basis review as intermediate scrutiny, or we might be doing better on the legal front.

 

13 Responses to “National Firearm Law Seminar, Panel 1”

  1. Ian Argent says:

    It’s at the point where a USB key with all the presentations for each attendee is cheaper than printing them all

  2. David Lawson says:

    Did you run into my wife?

    • Bitter says:

      I haven’t seen her, but I admit that I was accidentally running zoning out on decaf this morning for at least the first half. That might be the biggest crime I’ve ever witnessed at an NRA event – not labeling the decaf at a morning event. I’ll keep an eye out.

  3. Given the NRA’s opposition to Open Carry and given the NRA’s support for gun-free school zones (see Peruta v. San Diego lawsuit in 9th circuit), the NRA hosting a Second Amendment panel is kind of like the captain of the Titanic holding a seminar on how to avoid icebergs at sea.

    http://CaliforniaRightToCarry.org

    • Sebastian says:

      You are a delusional kook. Please go away. You are doing far more to harm Second Amendment rights than NRA ever has.

      • And here you had the perfect opportunity to make your case as to why concealed carry is a right under the Second Amendment and all you did was to blow wind.

        • Sebastian says:

          Most carry restrictions are a product of the 20th century, and concealed carry restrictions that predate the 20th century were only specific to certain areas of the country, and didn’t come until years after the founding. The Second Amendment says the right is to bear arms. It didn’t specify whether any method was preferred over the other.

          But I’m well aware of you and your work. You’re so wrapped up in your own theory (a theory that no other people who are experts in this field subscribe to) I’d be wasting my time to try to convince you.

          • There is absolutely nothing in my California Open Carry lawsuit regarding the Second Amendment that was not stated in Heller and McDonald. My “theory” is the same as SCOTUS’ opinions, and all 9 justices were unanimous in Heller that there is no Second Amendment right to concealed carry. You should try reading the decision sometime.

            The concealed carry restrictions, which applied to all of the former English colonies at the time of ratification of the Second Amendment, were enacted by an act of the English Parliament in 1603.

            The Framers of the Second Amendment didn’t have to say that there is no right to concealed carry any more than they had to say that there is no right to human sacrifice under the 1st Amendment. That was understood at the time and only kooks claim otherwise.

            A problem we have is that there are so many uneducated people such as yourself who never bothered to research the law on concealed carry. Instead, you let others who work for the NRA and the other so called gun-rights groups do your thinking for you. Worse, you regurgitate what you hear for other uneducated fools to lap up.

            If you truly want to support the Second Amendment then the best thing you can do is to shut this website down and to stop peddling your snake oil.

            • Sebastian says:

              I admire the tenacity to which you stick to your argument. I insulted you so it’s only fair that you insult me.

              I have read the Heller decision mentioned, and yes, it does mention concealed weapons. But it does not say a thing about only open carry being protected. Heller leaves open the door for the manner in which someone carries a firearm to be regulated, but it does not foreclose concealed carry if that is the only option the state leaves open. The state has to allow some manner of carry, and a good case can be made that allowing open carry is sufficient even if concealed carry is outlawed, but a good case can also be made that the state has to justify the restrictions on legitimate grounds.

              I’m curious what 1603 English Law you are speaking of is.

              • You have taken the position that if states ban Open Carry then concealed carry must be allowed and yet you cite no case or other historical authority in support of your proposition.

                The Heller decision cited the Reid decision regarding the destruction of the right to bear arms and the Reid decision considered the hypothetical case of Open Carry being banned in favor of concealed carry and concluded that would still result in the destruction of the right to bear arms.

                The 1603 English law, which placed severe restrictions on the use of concealed weapons (death), even if the killing was unintentional, or fell within one of the former common law defenses, such as drunkenness, is the Statute of Stabbing (1 Jac 1 c 8 – English citation – Repealed 1825) enacted because:

                “The [statute] was enacted at a critical period, and intended to remedy an immediate evil. It is said to have been directed at a number of persons, who adopted a method of deadly revenge by wearing short daggers under their clothes, which they prepared to use on slight provocations, and those frequently sought for by themselves. Its particular object is thus stated in the preamble [of the statute], which may serve to direct us to its construction [intent of the statute]; “To the end, that stabbing and killing men on the sudden done and committed by many inhumane and wicked persons, in the time of their rage, drunkenness, hidden displeasure, or other passion of mind, may henceforth be restrained through fear of due punishment [death penalty] to be inflicted on such cruel and bloody malefactors, who heretofore have been emboldened by the benefit of clergy [lesser punishment],” after which it proceeds to enact, “that every person who shall stab or thrust any person that hath not then any weapon drawn, or that hath not then any weapon drawn, or that hath not then first stricken the party which shall so stab or thrust, so that the person so stabbed or thrust shall therefore die within the space of six months then next following, although it cannot be proved that the same was done of malice aforethought, yet the party so offending shall be excluded from the benefit of clergy and suffer death as in the case of willful murder.”

                I’ve posted a number of historical legal texts at my website which should be read as a starting point for anyone who is serious about understanding the origins of the right to bear arms for the purpose of self-defense here -> http://blog.californiarighttocarry.org/?page_id=4204

                I also recommend that folks read all of the 19th century American cases hosted by GunCite.com, links can be found at my website here -> http://blog.californiarighttocarry.org/?page_id=201

                It would also be helpful if similarly interested folks would also study the law. It isn’t very expensive to buy law school textbooks at Amazon if one chooses an older edition. Simply go to your law school of choice, see what textbooks are required there and then go to Amazon.com.

                I did, and guess what? Although case law has changed since I studied law in college 35+ years ago, the basics haven’t changed.

  4. As David Kopel was a panelist, what does he have to say about concealed carry in his latest law review article?

    “”Heller and McDonald both stated that certain “longstanding” gun controls are “presumptively lawful.” These were laws barring guns for felons and the mentally ill; prohibiting concealed carry…”

    Justice Scalia should have added that people who think there is a Second Amendment right to concealed carry after reading his opinion are mentally ill as well.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2767979

    • Sebastian says:

      I’m pretty sure if you talk to Dave, he’ll buy into the notion that the manner of carry can be regulated, but that the state has to allow some form of carry for the purposes of self-defense, which can be open-carry or concealed carry, depending on whether the state can rest the manner restriction on legitimate government interests. I don’t think too many would argue the state could demand firearms be carried in holsters, or regulate holsters for certain safety features (such as covering the trigger guard). But almost no one believes open carry is the only valid, constitutional option.

      • Courts do not, and cannot, care what individuals “believe.” The courts are bound by binding, prior precedents and not a single of the concealed carry lawsuits brought by any of the so called gun-rights groups has ever provided a single legal citation or other historical authority which supports their claim that Open Carry can be banned in favor of concealed carry.

        For their concealed carry lawsuits to be successful, they will have to convince a Federal appellate court (or state high court) that when Baldwin, Heller and McDonald said that there is no right to carry concealed under the Second Amendment, what they really meant was that Open Carry can be banned in favor of concealed carry.

        The 9th Circuit Court of Appeals and the Florida Supreme Court are their last two chances. Every other Federal Court and every state court which has had a concealed carry challenge brought before it has lost.

        A decision which holds that states can ban Open Carry in favor of concealed carry will conflict with every other Federal circuit and state high court to consider the question.

        So tell us. Which five US Supreme Court justices are going to hold that there is a right under the Second Amendment to carry weapons concealed in public?

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