Currently Browsing: 2nd Amendment
Nov 25, 2013
Dave Hardy looks at the history books and finds the term well-regulated being used in contexts where it unambiguously means well-functioning, orderly, and organized. One of the big turds that Dick Metcalfe stepped on, was to parrot the other side’s distortion that “well-regulated” meant ”tightly controlled and subject to much regulation.” Research on this matter has clearly shown that it was not understood that way at the time the Bill of Rights was ratified. It goes back to the analogy, almost a tired one at this point:
“A well-educated electorate, being necessary to the security of a free state, the right of the people to print and read publications shall not be infringed.”
But our opponents don’t want to accept the plain English, even now, long past the point where well-regulated could possibly be interpreted as a tactic endorsement for controls by anyone who actually has honestly done the research.
Growing up, I never had any ideas that the Second Amendment meant anything other than what it plainly says, because I can read. I didn’t find out the words were a controversy until I was an adult, and the audacity of those on the other side, to subvert the plain language, is part of the reason I got into activism. I went through most of the Clinton years not understanding how the Assault Weapons Ban was even remotely constitutional, and wondering why nothing was done about it. When I found out, I became angry.
Nov 23, 2013
The law review article by Clayton Cramer, Joe Olson, and Dave Kopel, arguing that knives are just as much deserving of Second Amendment protection as firearms, has just hit the printers. I’d also throw chemical defensive sprays, tasers, and electric stun guns into that mix eventually as well, but one step at a time. Knives are probably among the oldest arms human beings recognize, and currently have far less legal protection than firearms. I can carry a Glock 19 into the City of Philadelphia and there’s nothing the corrupt politicians can do about it. But they absolutely could pinch for for carrying a 3 inch folding knife. Firearms regulation enjoy statewide preemption. Knives and other weapons? Not so much.
Nov 17, 2013
Several people have drawn my attention to this Texas A&M professor opining that it’s time to repeal the Second Amendment. These folks have never really engendered the same visceral outrage in me that others who advocate against the Second Amendment do. They at least acknowledge the proper mechanism for having this debate, and understand that the Constitution and Bill of Rights is a meaningful restraint. I get much more annoyed with people who want to treat the Constitution and Bill of Rights like a buffet line, taking from it the parts they find appealing, while leaving the parts they don’t.
Nov 4, 2013
Unlike many states, Pennsylvania gun owners actually have a method to send a direct message to the judicial branch about their views on how judges might be doing at either upholding or uprooting our rights to keep and bear arms.
Pennsylvania does a range of judicial elections – outright partisan competitive elections at some levels and during some years, and then retention elections (simple, is this person doing a good enough job to remain on the bench vote) for some levels of the court. There are perks and drawbacks to such a system, but it is our system. That means we gun owners should participate.
Tomorrow is Election Day, and the only offices on the ballot are local, county, and judicial. It means that turnout will be ridiculously low. Gun owners need to be concerned since we just had an elected judge make a completely new interpretation of our concealed carry laws that made any Pennsylvania resident carrying on an out-of-state license a criminal.
In fact, two Supreme Court justices are up for a retention vote tomorrow. One of them, Chief Justice Ron Castille, wrote the opinion that has opened the door to redefine Pennsylvania’s self-defense standard from one which requires the state to disprove a claim of self-defense beyond a reasonable doubt, to one where the defendant has to prove self-defense by a preponderance of the evidence. This would essentially shift the burden from the state to the defendant. If gun owners think this is a bad idea, then vote against retention.
Gun owners aren’t the only interest group that should be looking more to the courts as voters. A Tea Party group is also encouraging voters to vote against retention of both justices up tomorrow. Whatever you think about their views on whatever it is that’s irking them is irrelevant, what it presents is an opportunity to see that Castille is especially weak.
This isn’t the only time in recent months that gun owners have needed to wake up to judicial elections. In Erie, there’s a low level judge who just blatantly ignored the state’s preemption law. This is a situation that can easily be solved at the ballot box, and the message will spread to other judges.
Unfortunately, of all the bad rulings issued for gun owners lately, Chief Justice Castille is the only one facing an immediate election. However, he can be sent home. We should take the opportunity to help him enjoy his retirement a little earlier than he expected. (He actually faces mandatory retirement next year, so it’s pretty pointless to keep him on the court. Unfortunately, he is fighting that mandatory retirement. Though he can’t fight a voter-mandated retirement.)
Oct 24, 2013
I’ve always thought Writ of Mandamus sounded vaguely like the title of a Wagnerian Opera, but it’s essentially an order from a superior court to an inferior court to do something. The case is Palmer v. DC, and it’s a carry case.
[A] case challenging the carry licensing in the District of Columbia. Though DC may license the manner of carry, DC must allow law abiding residents to carry a handgun in public for self defense.
According to the SAF press release:
“We realize this is a difficult step to take,” said SAF Executive Vice President Alan Gottlieb, “but this case has been languishing for 1,475 days, and counting since it was ready for decision. In our case in Moore v. Madigan, challenging the carry ban in Illinois, the trial court took 172 days to rule, and the Seventh Circuit Court of Appeals took 202 days to issue its ruling on the appeal. We have been waiting well over four years for a decision in the Palmer case, which was filed in August 2009, and waiting four more is not an option.”
This would work toward getting us back to a situation where there is a prohibition on carry before the Court, similar to the situation in the 7th circuit, which resulted in a victory. It’s possible that the court doesn’t want to deal with may-issue v. shall-issue, but would rather have a case that involves prohibition. There was an opportunity for that with Illinois’ total prohibition, but the win in Shepherd/Moore at the Circuit Court of Appeals, and Illinois subsequent capitulation, took that off the table for reaching the Supreme Court.
Oct 22, 2013
The decision is here. It’s important to note that this is a California state court and not federal court, but since the McDonald decision, the Second Amendment is applicable to the states and state courts are bound to consider it. Well, consider it the California Appeals court did, and decided the right was essentially meaningless, and because an AK-47 is at least as dangerous as a short barreled shotgun, it could be banned, since Heller agreed short barreled shotguns could be banned. Dave Hardy notes:
The inclination of the court is obvious. The situation probably indicates how essential it is to “develop a record” at the trial level. What proportion of firearms are “assault weapons”? One of the answers is that over 20% of current rifle production is by manufacturers who make nothing but AR-platform rifles.
Trial courts are finders of fact, so having trial evidence that these are, in fact, weapons in common use and not unusual (I’d note that Heller says dangerous and unusual, not dangerous or unusual), could help on appeal. I also don’t think one can single out a single model of firearm. I could find plenty of handguns by model or description that are unusual, but few would argue ought to be banned because they fit inside a broader type of gun that’s common. I think you have to consider firearms by functional class, in other words, can you ban or restrict semi-automatic rifles? Bolt action rifles? Lever action? Machine guns? Not by singling out a single model by name, or some obscure feature that doesn’t have any real bearing on how people normally classify firearms.
But then again, I don’t really think the courts give a crap, to be honest. I’ve gotten little indication that most state and lower federal courts, and even most federal circuit court show much interest in seriously evaluating the current state of the law, and making an honest attempt to construct a meaningful right.
Oct 17, 2013
Emily Miller talks to Alan Gura about the rejection of Wollard v. Gallagher, who notes there are still a number of cases in the hopper. I’d note that any speculation about why the Court keeps rejecting certiorari for carry cases is just that: speculation. There are a list of reasons a mile long why the Court may not want to grant cert. We’ve speculated on the whys, but reality is we don’t really know. Maybe the Court doesn’t want a carry case. Maybe they want to see how all the circuit courts play out. Maybe the giant spinning wheel of fortune they use to pick cases for the term just hasn’t landed on a carry case yet.* Maybe they don’t have 5 votes to win carry because someone got soft in the mean time. We don’t really know.
* OK, they probably don’t select cases that way.
Oct 15, 2013
The Supreme Court has, once again, opted not to weigh in on the issue of carry in regards to the Second Amendment. It would seem like they really don’t want to go there at this point, or perhaps they don’t have the votes in our favor. From SCOTUSBlog:
The Court also granted review of a second case: on the legality under federal law of the owner of a gun selling it to someone else, if the new owner can have a gun legally. That case is Abramski v. United States (12-1493). However, the Court followed its recent pattern of refusing to hear constitutional challenges to gun control laws under the Second Amendment, turning aside a Maryland case seeking to expand the personal right to have a gun beyond the home (Woollard v. Gallagher, 13-42).
The fact that the Supreme Court is completely unwilling to protect your right to actually bear the arms instead of just keeping them should motivate gun owners to get involved in the political fights. It is absolutely clear that you cannot count on the courts, and elections have consequences.
Oct 7, 2013
Justice Ginsberg still believes in the militia theory of the Second Amendment, but I think it’s good she doesn’t feel any pressure to retire while Barack Obama is President. She believes the next President will be a Democrat anyway. It’s a gamble for the Heller dissent. If Ginsburg retired during Obama’s Administration, there’d be a strong likelihood she’d be replaced by another justice who would like to overturn the Heller decision and redact the Second Amendment right out of the Bill of Rights.
But I don’t really blame Justice Ginsburg for wanting to hang on. For one thing, she might be right about a Democrat winning in 2016. Conventional wisdom for Democrats in DC is that the Republicans are finished, and they need not worry about losing the White House again. I think that’s wildly optimistic on their part, but it’s a common belief. The other reason I don’t blame her is I’m not sure I’d want to retire either. What would you do all day? I’d find things to amuse myself, sure, but I’d imagine Justice Ginsburg’s work is far more interesting than anything one would typically find for amusement in retirement.
Oct 1, 2013
Judge Catherine Blake, a Clinton appointee, has denied a request for a preliminary injunction, allowing Maryland’s new gun control laws to go into place. This is not terribly surprising. The lower courts have generally been unwilling to take the Second Amendment seriously, the the 4th Circuit Court of appeals has hardly signaled they are willing to blaze new ground when it comes to developing Second Amendment case law. I haven’t seen the actual denial, but the article mentions that Judge Blake didn’t seem to consider abridgment of Second Amendment rights to be any big deal. Hopefully this won’t portend how the rest of the case will go.