Currently Browsing: 2nd Amendment
Oct 9, 2014
There’s an interesting opportunity to listen to a federal case in front of the 9th Circuit today. If you have time and ability, you can tune in to hear Dave Hardy in US v. Rodman just after noon (Eastern).
Here’s a bit of background on the case.
UPDATE: It looks like it can be embedded, so here’s the video where it will be live-streamed later today.
Sep 30, 2014
The Second Amendment as a Normal Right. It is rightfully harsh on how some federal circuit courts have treated the Second Amendment. Here’s an expert:
Suppose a state were to prohibit abortion at 20 weeks of gestation absent a doctor’s certificate of “medical emergency,” invoking “documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.”30 In a world where Kachalsky-style “scrutiny” applied to the abortion right, it simply wouldn’t be the courts’ job to second-guess a legislature’s regulatory oversight of the medical profession in the important interests of patient safety and prevention of cruelty. Yet when Arizona enacted just this law, the Ninth Circuit wasted no time striking it down:
Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term. Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusion of the choice to terminate a pregnancy altogether.31
The court properly made quick work of the theory that a fundamental right is not infringed when everyone is free to exercise it upon proving need.32 “The presence of a medical exception does not make an otherwise impermissible prohibition constitutional. The adequacy of the medical exception has no bearing on whether the prohibition is permissible in the first place.”33 Regardless of what the legislature may earnestly believe to be required in the interests of health and safety, the Supreme Court has guaranteed a woman’s right to terminate pregnancy until viability.34 “The twenty-week law is unconstitutional because it bans abortion at a pre-viability stage of pregnancy; no health exception, no matter how broad, could save it.”35
Heller and McDonald leave no doubt that the Second Amendment must operate similarly, as a normal constitutional right…
Read the whole thing. The courts seem to know how to treat rights when a case involves a right that judges favor.
Sep 25, 2014
The case is Binderup v. Holder, filed in the Eastern District of PA. The plaintiff was convicted years ago of Corruption of Minors for having sex with a 17 year old. In Pennsylvania, Corruption of Minors is a misdemeanor, but has a possible sentence of up to five years, so it applies for the purposes of a federal prohibition. Corruption in Pennsylvania tends to occur for one of two things, alcohol and sex. Often both. Furnishing liquor to minors in Pennsylvania can cost you your gun rights. So can sex between a 18 year old and 17 year old. The age of consent in Pennsylvania is 16, so the charge is not Statutory Rape, but Corruption of Minors is still an option for the prosecution.
This is an “as applied” challenge, meaning the statute was challenged as applied to this person’s individual circumstance. It was not a facial challenge to the statute as a whole. This would presumably apply to other persons similarly situated to this defendant. To read more details about this case, see Of Arms and the Law and also Alan Gura’s blog, who is the attorney who argued this case.
Slowly but surely, we are chipping away here and there. The other side may brag about our defeats, but we’ve also had some very important and circumstantial wins. There are a lot of people in Pennsylvania, who are no threat to anyone, who have gotten caught in this trap. Now there may finally be some relief for them.
Aug 27, 2014
At least as applied to firearms carried in a vehicle in the parking lot of the licensed establishment:
As written, the clear language of § 13:95.3 prohibits the possession of firearms in any parking lot of an establishment that sells alcohol. Thus, any law abiding citizen who exercises his or her right to keep or bear arms within the confines of his or her personal vehicle will violate § 13:95.3 anytime he or she, for example, stops to refuel a vehicle at a service station that sells alcohol, or stops to purchase groceries at a grocery store that sells alcohol.
Indeed, Defendants concede in their memorandum that § 13:95.3 “could be unconstitutional ‘as applied’ to a person within the parking lot of a grocery store.” Similarly, the ordinance prohibits law-abiding citizens from purchasing and possessing firearms at any establishment that sells alcohol, thereby rendering the sale of firearms at establishments like Wal-Mart a criminal act. Indeed, even Defendants concede that § 13:95.3 impinges upon a right protected by the Second Amendment.
A step in the right direction. I tend to think the only restrictions of this manner that would be constitutional are on carrying while intoxicated. I’d also note if you can drive a 2 ton bludgeon down the road at 70MPH while sporting a 0.07BAC, carrying a gun being inherently less dangerous than operating a vehicle, people who carry are owed at least the same amount of deference.
That’s not the say the courts would go for that. The state will probably argue when it comes to vehicles there’s implied consent. Even if they set a BAC level for carrying, it couldn’t be enforced, since the cops can’t get any leverage over you to get you to blow. Not that I agree with implied consent when it comes to vehicles, but the state treats driving as a privilege, and at least in Louisiana, carrying a firearm is a right subject to strict scrutiny.
Aug 27, 2014
Professor Eugene Volokh looks at the low hanging fruit in terms of laws that are unconstitutional under the Second Amendment. I don’t have much to add, and agree many of the items he mentions ought to be up for consideration. I do want to comment on this, however:
Bans on so-called assault weapons, for instance, strike me as unwise, but they don’t themselves practically interfere with self-defense in a substantial way: people remain free to have guns that are just as effective for self-defense.
Isn’t this the same argument that the District of Columbia made in the Heller case? They were free to ban handguns because the people still had shotguns and rifles as options. Who’s to decide what burdens self-defense in a substantial way? If the vast majority of self-defense incidents only require 0 to two shots, why can’t the state outlaw anything that isn’t a two shot derringer, or a double barrel shotgun? If you use a test like that, it’s no real restraint on government, and requires judges to make decisions they have nearly no expertise to make; what does or doesn’t constitute a substantial burden on self-defense. The common use test, for all its flaws, is far preferable, because then the people get to decide.
Aug 25, 2014
Welcome back from the weekend everybody. Browsers ground to a halt, so it’s time to start unloading some news:
Gun Vote 2014:
It’s looking more and more like Hickenlooper might be vulnerable in Colorado. We need his head on the proverbial pike this election. This is where to make our stand. Those of us in Pennsylvania need to help Corbett too. Whether you’re pissed off at him on other issues (I sure am), his quick repudiation of gun control in the wake of Sandy Hook helped us tremendously.
In Washington State, it’s the rich elites against the rest of us.
Cuomo isn’t looking to hot either. NOW has endorsed his opponent in the primary. Well, he’s certainly very good at New Yorkers good jobs. Just remember, when it comes to priorities, Cuomo chose gun control over jobs.
Meanwhile, the anti-gunners are throwing every last dollar Bloomberg managed to find in his sofa at this race. It’s funny how the left celebrates rich plutocrats dumping tons of cash against a grassroots organization, as long as they agree with the rich plutocrat.
Jim Sensenbrenner introduces a bill to disband ATF. Bob Owners is correct that it’s something neither side wants, and for the reasons he cites. Gun laws won’t go away, and enforcement will likely shift to the FBI, who will be very competent and railroading gun owners, and also seeking more congressional funding to do so.
A plurality of folks in New Jersey agree with Christie’s veto of their new magazine and gun ban. That’s progress!
The Well-Regulated Militia:
Whether they realize it or not, these folks are doing something that has a long tradition in America, among both blacks and whites, though I agree with Glenn Reynolds take on the reaction of polite society.
From Jim Geraghty, are ISIS ‘External Operations” already underway? Americans shoot back. Carry your guns, folks.
Chicago crimes drops as concealed carry applications surge. Who could have seen that coming?
Militarization of Police:
I sort of indirectly linked to this piece by a former LAPD officer the other day. Popehat has an excellent takedown of this author, and the attitude he represents.
Robb Allen has an excellent commentary of “This whole l’affaire du Ferguson”
A few bloggers, including Dave Kopel, Ilya Somin, and Ace of Spades, are taking on the notion being floated by the left that conservatives and libertarians aren’t saying anything about the militarization of police.
Charles E. Cobb Jr., on ‘the challenge of Ferguson’
Forbes: Gun technology that could prevent another Ferguson. I don’t think smart guns are the answer, but it’s a fair treatment of the subject. I’m also not big on gun cameras. I want to see the context that lead up to the drawing of the gun. I’d be worried cops will draw their weapons too soon just to be sure there’s a recording.
Reason: How a suburban SWAT team sees itself.
This is big government.
Guns in the News:
Charges dropped against man who followed the Vice President’s advice and fired a shotgun into the air.
Rick Perry can’t carry anymore. He’s been indicted. Maybe this would be a good time to have a conversation about whether indictment is sufficient due process, but I suspect there are too many people sympathetic to the idea of indicting and disarming Rick Perry to use this topic to open people’s minds.
Layers and layers of editorial oversight.
The TSA has confiscated more than 1000 guns at US Airports. I’m a LOT more careful after I had my little incident in Phoenix. I was lucky, because a) it was just ammo in a magazine and not a gun and b) the Phoenix TSA and Police are pretty mellow about this kind of thing.
Activists in the News:
Frank Carroll thinks Ted Nugent has to go. I agree, but the only way it’s going to happen is for NRA members to stop voting for him.
Kroger, it seems, won’t be bullied by Shannon Watts. Some of the demanding moms seem to be moving up towards wonton destruction of property in response to Kroger’s rebuffing. If you live in Kroger Country, might be worthwhile to send some kudos their way. I don’t live in Kroger country, and am thus not a potential customer.
Reminder: the people on the other side of this issue think you and I belong in prison. To these extremists, our behavior is deviant, and on par with pedophilia.
Brady Campaign lost its suit against Armlist (this is a bit old. I must not have cleared this before).
Howard Nemerov hangs it up. This is why I blog using a pen name. You never know when you might be working with a true believer, and if they would be willing to throw you in prison, they’d be willing to ruin your professional life too.
The Connecticut Bar Association is headed for a showdown over its support for gun control.
WSJ: Where is Open Carry legal? Features a picture of fellow blogger Rick Ector of Legally Armed in Detroit.
Tam: “Back in the late 19th-early 20th Centuries, rifle technology was changing by leaps and bounds, and it must’ve been hard to keep up, so there were lots of ways armies would wring one more decade out of obsolescent gear…”
Jim Geraghty takes a look at Democratic fundraising, and concludes that the GOP certainly isn’t behaving like they really want to take back the Senate. The problem is that the GOP is no longer the party of money. The sad thing is they haven’t realized it yet.
Are Republicans smart enough to become the party of Millennials? I’d say no.
Over fourteen thousand voters in Virginia also registered in Maryland? That’s not to say they are all casting ballots in both places, but certainly a cause for concern.
Aug 25, 2014
NRA’s Annual Firearms Law Seminar is reporting that we have won in the case of Sylvester v. Harris:
The Court has found that the 10-day waiting periods of Penal Code § 26815(a) and § 27540(a) violate the Second Amendment as applied to certain groups. Plaintiffs urge the Court to follow the approach of Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), in which the Seventh Circuit stayed its ruling for 180-days in order to give the Illinois legislature the opportunity to craft new laws in light the unconstitutionality of various Illinois firearms laws. The Court finds Moore‟s approach to be appropriate.
Accordingly, IT IS HEREBY ORDERED that:
- The 10-day waiting periods of California Penal Code § 26815(a) and § 27540(a) violate the Second Amendment as applied to those individuals who successfully pass the BFEC/standard background check prior to 10 days and who are in lawful possession of an additional firearm as confirmed by the AFS system;(a) If the BFEC/standard background check for such an individual is completed and approved before 10-days, Defendant shall immediately release the firearm for delivery to such individual and shall not wait the full 10-days;
- The 10-day waiting periods of California Penal Code § 26815(a) and § 27540(a) violate the Second Amendment as applied to those individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess a valid CCW license issued pursuant to California Penal Code § 26150 or § 26155;(a) If the BFEC/standard background check for such an individual is completed and approved before 10-days, Defendant shall immediately release the firearm for delivery to such individual and shall not wait the full 10-days; Case 1:11-cv-02137-AWI-SKO Document 106 Filed 08/25/14 56
- The 10-day waiting periods of California Penal Code § 26815(a) and § 27540(a) violate the Second Amendment as applied to those individuals who successfully pass the BFEC/standard background check prior to 10 days and who possess both a valid COE issued pursuant to California Penal Code § 26710 and a firearm as confirmed by the AFS system.(a) If the BFEC/standard background check for such an individual is completed and approved before 10-days, Defendant shall immediately release the firearm for delivery to such individual and shall not wait the full 10-days;
- Defendant shall modify their BFEC procedures as they deem necessary so as to be able to comply fully and in good faith with this order.
The ruling is stayed for 180 days. I would imagine the State will appeal. There could never be any sound rationale for applying a waiting period for people who already owned guns. I don’t even think there is one for a waiting period at all, but for now we’ve at least started to push back a little bit on the whole notion of waiting periods. Victories are going to come in small increments at first, and then either sweeping victories or sweeping defeats, as the case works its way up. This is one of those small increments in the right direction.
This was a case brought by the CalGuns Foundation.
Aug 22, 2014
According to local news, the Chair of the DC City Council says they have decided to appeal the ruling forcing DC to recognize some kind of lawful carry by citizens.
Aug 19, 2014
The District of Columbia wanted to keep their ban on carry by law-abiding citizens. The court said no. Then, DC said they needed 180 days. The court said that 90 days was plenty. Despite the fact that the sky did not actually fall during the couple of days of lawful carry, DC is still spending their time begging the courts for more time to decide how they can most restrict individual rights.
Aug 12, 2014
A federal judge has upheld the Maryland assault weapons ban that was passed in the wake of Sandy Hook.
Blake, who was appointed by President Bill Clinton, wrote that she was not convinced that assault rifles such as the AR-15 are used regularly for self-defense. She wrote that they seemed to be “military style weapons designed for offensive use.”
Blake did not rule on whether the weapons or magazines are protected by the Second Amendment. But even if they are, she wrote, the bans are a legitimate way for the state to enhance public safety.
The law “seeks to address a serious risk of harm to law enforcement officers and the public from the greater power to injure and kill presented by assault weapons and large capacity magazines,” she wrote.
Of course, we’ve seen Bush appointees rule this way too, so this isn’t meant to single out Clinton appointees. I should again emphasize how much judges are culturally skittish of gun rights. Gun rights are a movement of ordinary people. Elites have never liked the peasantry to be will armed. Nontheless, we usually lose in district court. Some of our best victories have been disasters in federal district court. So we will appeal, and press on.