About 85% of Colorado’s county sheriffs are leading a lawsuit challenging Colorado’s recently passed gun control laws. The lawsuit was filed today by Dave Kopel, and includes some other names you might recognize such as NSSF and Magpul. The lawsuit is pretty easy to read and follow in outlining the specific objections to key bills.
Before it was filed, Dave Kopel did an interview on the lawsuit subject. (He also signed up more law enforcement between the time of this interview and the time of filing.)
UPDATE: Here is the video of the press conference announcing the lawsuit:
It’s hard to work through the news of the day to find something to write about waiting for the Verizon guy to run the fiber connection into our bay. But typing a post out on the iPad I can do. A topic that was discussed with some of the academic folks at NRA Annual Meeting is saving the folks in Blue America using the federal government. At this point, it’s mostly wishful thinking. National reciprocity is the only preemptive measure NRA has put on the table, but that is a measure that benefits Red America more than Blue America. In the long term, as I’ve said in a previous post, we can’t tolerate two Americas.
There are several powers of Congress under which this can be accomplished. The familiar ones are the commerce clause and Congress’ Section 5 power of the 14th Amendment. But the Supreme Court has slowly been taking a more narrow information of the commerce clause, and any exercise of the 14 Amendment power runs squarely into the case of City of Boerne v. Flores, which essentially says that the federal courts, and not Congress get to determine the scope of a right.
But when it comes to preempting state bans, and other state restrictions, I think there maybe a power of Congress upon which such an action may most firmly rest:
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
I would argue that it is both necessary and proper for Congress to execute laws that preempt state laws that prohibit or frustrate the ability of ordinary citizens to own, transport, and practice with ordinary small arms, such as, but not necessarily limited to, the AR-15, Beretta 92F, M1911, etc. Congress needs individuals familiar with arms and shooting, in order to have an effective militia from which it may draw to raise an army. I even think in this age of terrorism, National Reciprocity could be plausibly based on Congress’ militia powers.
We ought to be skeptical of federal power, which can used for ill as readily as good, but I don’t see any other means to prevent the spread of this cancer of ignorance. Either we restore a healthy shooting culture to Blue America, or we watch the cancer slowly spread. Colorado was a real wake-up call that we may need to rethink our priorities. If they can beat us in Colorado, it won’t be long before we start losing in other swing states. It wouldn’t be long before they had the votes to screw the rest of us federally anyway. It’s something to think about.
The State of Illinois has filed an application with the Supreme Court to extend the deadline for filing a Writ of Certiorari with the Supreme Court of the United States. Ordinarily, they would have until May 23 to file, but they are asking for it to be extended to June 24. What does this mean? Who knows. It’s hard to say whether they intend to file, and have just waited too long, or whether they are playing games and using delaying tactics. The extension request can be found here.
In the view of at least some members of the founding generation, disarming select groups for the sake of public safety was compatible with the right to arms specifically and with the idea of liberty generally.
This may be true, but what does it really tell us? Large numbers of the founding generation also thought chattel slavery was compatible with “the idea of liberty generally,” but changes in the Constitution since then have rendered many of these ideas moot. Granted, it shows us that the founding generation understood some controls over arms were acceptable, but it tells us little about what kinds of restrictions are acceptable. Are minors among “select groups” which can be disarmed “for the sake of public safety?”
Notably, the term “minor” or “infant”—as those terms were historically understood—applied to persons under the age of 21, not only to persons under the age of 18. The age of majority at common law was 21, and it was not until the 1970s that States enacted legislation to lower the age of majority to 18. See, e.g., Black’s Law Dictionary 847 (9th ed. 2009) (“An infant in the eyes of the law is a person under the age of twenty-one years, and at that period . . . he or she is said to attain majority . . . .” (quoting John Indermaur, Principles of the Common Law 195 (Edmund H. Bennett ed., 1st Am. ed. 1878))); id. (“The common-law rule provided that a person was an infant until he reached the age of twenty-one. The rule continues at the present time, though by statute in some jurisdictions the age may be lower.” (quoting John Edward Murray Jr., Murray on Contracts § 12, at 18 (2d ed. 1974))); see generally Larry D. Barnett, The Roots of Law, 15 Am. U. J. Gender Soc. Pol’y & L. 613, 681–86 (2007). If a representative citizen of the founding era conceived of a “minor” as an individual who was unworthy of the Second Amendment guarantee, and conceived of 18-to- 20-year-olds as “minors,” then it stands to reason that the citizen would have supported restricting an 18-to-20-year-old’s right to keep and bear arms.
That’s what the analysis should hinge on: is the age of majority 18 or 21? If the answer is 21, then the analysis can proceed from there. But I think you’d find precious few laws restricting the purchase, possession, or bearing of arms by juveniles during the time the Bill of Rights was framed. The Court essentially admits that:
To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction. The important point is that there is considerable historical evidence of age- and safety-based restrictions on the ability to access arms. Modern restrictions on the ability of persons under 21 to purchase handguns—and the ability of persons under 18 to possess handguns—seem, to us, to be firmly historically rooted.
I don’t think mere existence of some kinds of restrictions in historical record necessarily ought to mean that restriction is presumptively constitutional. I believe finding an analogous law in the historical record, and declaring the restriction constitutional, is lazy. A law, for instance, barring permanent residents from their right to keep and bear arms might find analogues in laws which prohibited loyalists, but because of the changes in the Constitution since those times, such a law should not withstand any level of scrutiny in modern times. I don’t think the existence of such laws inform us of much, other than many in the founding era shared many of the irrational prejudices held by people today. Also, you can find in the historical record, laws prohibiting selling or trading guns with Indian Tribes, which may have served a “public safety” purpose at one time, but that’s not to suggest it would still serve the same purpose now.
Nor do I don’t think the fact that a law existed, and has been longstanding, should be sufficient as to deem any such law constitutional. This is the “tradition” part of “history and tradition.” The Sullivan Act is both historical and longstanding, but is it common practice or an outlier? It would be hard to argue that something practiced by half the states, and upheld by numerous state courts, is an outlier. Something practiced by only small number of states or localities is an outlier, and not part of our general tradition on regulation of firearms. How many states require a license to own a gun? I can think of five? Maybe six. The Circuit Court points out:
Arms-control legislation intensified through the 1800s, see Cornell & DeDino, 73 Fordham L. Rev. at 512–13, and by the end of the 19th century, nineteen States and the District of Columbia had enacted laws expressly restricting the ability of persons under 21 to purchase or use particular firearms, or restricting the ability of “minors” to purchase or use particular firearms while the state age of majority was set at age 21.
The question, in a tradition and history analysis, ought to be whether such restrictions were widespread and accepted, and also whether they were enforced fairly and evenly. I’d not give too much weight, for instance, on the existence of a law that, by language, applied to everyone, but in practice was only ever enforced on disfavored minorities. I also think the nature of the restrictions needs to be at issue. How many amounted to a blanket prohibition on purchase? I think “history and tradition” analyses need to take this into account.
Alternatively, Congress could have sought to prohibit all persons under 21 from possessing handguns—or all guns, for that matter. But Congress deliberately adopted a calibrated, compromise approach.
Really? It could have? And would that have created any constitutional issues? So are the young deserving of absolutely no protection under the Second Amendment? Not even to possession for training purposes under supervision of a responsible adult? Perhaps Congress could have done that, but it shouldn’t say anything about whether or not it would be constitutional for Congress to do so.
The rule that majority begins at 21 endured until the early 1970s,281 so most right-to-bear arms provisions were thus enacted while 18-to-20-year-olds were technically treated as minors. And the same issue arises as to other rights as well: Consider, in the First Amendment context, a recent proposal to set 21 as the age of consent for being filmed or photographed naked or in sexual contexts, and the possibility that this is already the law in Mississippi and as to under-19-year-olds in Nebraska. Consider the Nebraska requirement of parental consent for marriage of under-19-year-olds. Or consider the Alaska law barring possession of marijuana by under-19-year-olds even though the Alaska Supreme Court has interpreted the Alaska Constitution’s right to privacy as securing adults’ right to possess small quantities of marijuana at home.
I’m skeptical about this argument, because the pre-1970s cases that I’ve seen involving lesser constitutional rights for minors—lesser free speech rights, lesser religious freedom rights, and lesser criminal procedure rights—involved age cutoffs of 18 or less. Whatever setting the age of majority at 21 might have meant for purposes such as contracting, parental authority, and the like, it seems not to have affected those other constitutional protections. At the same time, for much of our nation’s history, the right to contract was seen as an important constitutional guarantee, and that right was not fully secured to 18-to-20-year-olds. The matter of the historical constitutional rights of 18-to-20-year-olds warrants more research.
I also think it should not be overlooked that this is a federal restriction rather than a state one. If a state wants to lower its statutory age of majority from 21 to 18, to what extent does the federal government have the power to override that when the exercise of a constitution right is in question? Indeed, every state save Alabama (19), Nebraska (19) and Mississippi (21) have age of majorities at 18. I tend to think the federal government ought to face a substantial burden in justifying this restriction. Why can’t the states arrive at a new consensus on age of majority? What other rights could the federal government restrict contrary to that new consensus? How do you square this with Congress’s other enactments which declare anyone to be 18 years or older an adult?
This was a more rigorous analysis than most federal courts have engaged in when considering Second Amendment issues, but is still insufficient treatment for a fundamental constitutional right.
Story here. There can be a lot of tea leaf reading in this, but there are a multitude of reasons the Supreme Court can decline cert on a case. Nonetheless, let us hope the reason is not that there’s not agreement on the Court that carry is a right, and that it means something.
For those of you who didn’t catch the story I don’t mean that the text simply opts for the collective rights interpretation, I mean the teacher distributed a worksheet that completely denies history.
“The courts have consistently determined that the Second Amendment does not ensure each individual the right to bear arms,” the worksheet states. “The courts have never found a law regulating the private ownership of weapons unconstitutional.”
The worksheet, published by Instructional Fair, goes on to say that the Second Amendment is not incorporated against the states.
In the most generous interpretation of events, the teacher is using materials that are more than half a decade out-of-date and has simply opted not to keep up with current events or current curriculum. The less generous assumption is that the teacher is seeking out these false documents in an effort to deny history and purposefully lie to students. Either way, the school refuses to answer any questions about the situation or even provide a statement on whether they plan to stop purposefully giving out false information to students now that it has been brought to their attention.
Cam Edwards is hosting the father of this student on today’s Cam and Company at 4:20pm Eastern. I plan to tune in because, well, I was that pain-in-the-ass student who kept my teachers on their toes over stuff like this. :)
Cam did joke today when promoting his interview that he would love to see Dave Kopel be invited to respond to the class lesson. I just think it would be funny trying to picture the teacher arguing with Kopel that he wasn’t really in the SCOTUS building and sitting at the table during the Heller case – it is all simply a figment of his imagination.
On a related note, these are your public schools, folks.
With a lot of people talking about Obama’s gun control agenda being on the ropes, I think it’s worth looking at where we are, and where we’re going. Obviously, we are not out of the woods yet, and we’ve taken a gut punch in three states, one of which no one really thought was vulnerable (Colorado). Maryland had been teetering on the brink for a while, and Sandy Hook was enough of an excuse to break the stalemate. Connecticutians fought hard, but the writing was on the wall there as well. We will likely lose ground in other states as well.
We have essentially no means of saving the blue states through the political process. Colorado is salvageable if the Democrats face a sufficient backlash in 2014, but it’s hard to imagine Second Amendment supporting majorities taking control of states like Connecticut, Maryland, New Jersey, or even Delaware at this point. But yet we can’t continue to have two Americas, one with Second Amendment rights and one without. We can’t continue to write off support from large segments of the American population, who’s legislatures have been successful at eradicating the gun and shooting cultures in those states. We cannot tolerate these gardens of ignorance the media, and demagogues like Obama and Bloomberg are only too happy to sow. Over the long term, if we don’t restore liberty to these states, we’re in a losing battle of attrition, with each new pretext chipping away our rights state by state.
The first recourse for restoring the Second Amendment to all Americans is the Courts, but the Courts move slowly, and I hold considerable skepticism that the Courts are going to make sweeping changes to state laws. I’d like to be wrong about this, but I hold considerable skepticism we can fix this easily through the Courts. I think we’ll likely see a case going to the Supreme Court on the “bear” or carry portion of “keep and bear” sometime in the next year or so, and I think we’ll likely prevail. But I still believe the Court will dodge on standards of review, because for whatever reason, it’s been two cases now with the Court being unwilling to address that standard. Perhaps this will change in a third case, but I’m skeptical, since I suspect the reason we have no standard of review is that there’s no agreement on the matter between the majority in both cases.
In nearly all other civil rights struggles in this country, it’s been a combination of Congress and the Courts acting to preserve liberties. The early Civil Rights Acts, authorized by Congress’ powers under the 14th Amendment, were intended to protect the rights of newly freed Blacks during Reconstruction. There have even been government agencies created for the protection of civil rights. Even today, under Congress’s enforcement powers found in the 15th Amendment, the Voting Rights Act provides for extensive federal oversight over state election matters and over state redistricting in states with a history of discriminatory behavior. There is ample precedent for Congressional involvement in the protection of civil liberties. I would propose that when the political environment improves for us, our focus ought to be on a comprehensive bill that restores Second Amendment rights to all Americans. What would such a bill look like?
Establish a finding that semi-automatic firearms are commonly used for lawful purposes, and therefore citizens have a right under the Second Amendment to possess semi-automatic firearms of all types. This at least puts the courts on notice as to what Congress thinks the right is.
States are not permitted to prohibit the sale, transfer, possession, or transportation of rifles, shotguns, handguns, ammunition, magazines, or firearm accessories in a manner that is inconsistent with federal law. This would federally preempt state AWBs.
The right to possess or carry a loaded rifle, shotgun or pistol, ammunition, magazines, or accessories in your home state is a right to possess or carry a firearm in all states, federal territories, and federal districts. This is essentially the reciprocity bill that’s been up before.
States may not interfere with the transportation of unloaded and cased rifles, shotguns, pistols, ammunition, magazines, or firearms accessories for lawful purposes. Basically a stronger FOPA peaceable journey provision. This would essentially render New Jersey’s byzantine transportation laws null and void, and also provide a federal standard for transportation states would have to be consistent with in the above section.
In order to make this politically viable, you’d have to leave state licensing alone. It would also allow states to prohibit classes of people from firearms, provided they maintained consistently with federal law. So a state law barring felons would be left alone, but if a state barred someone for a traffic offense, that provision would fall due to inconsistency. The courts would have to continue to make those calls, but at least they’d have a framework. National reciprocity was a top issue before, but the stakes have been raised by opponents of Second Amendment rights, and I see no reason we should not agree to upping the ante. Congress has the 14th Amendment power to enforce constitutional rights, and I think it ought to exercise it.
But it seems to me that means the court is thereby deciding that the right to keep and bear arms doesn’t extend to carrying outside the home for self-defense. If a court lets the government deny the ability to carry guns outside the home for self-defense to nearly everybody, the court is in essence saying there is no such right to carry.
A constitutional right that can be trumped in some of its applications under intermediate scrutiny (or for that matter strict scrutiny) is a right, albeit a qualified one; consider, for instance, the right to engage in commercial speech, or the right to be free of sex discrimination. But a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.
This case will no doubt be appealed, and given we have a circuit split on this issue with the 7th Circuit, I think it’s safe to say the Supreme Court will take the issue up. I do hope that in this next case, the Court puts the kibosh on this intermediate scrutiny nonsense. I can understand why the Court doesn’t want to adopt these various levels of review for the 2nd Amendment, but there needs to be some standard for lower courts to follow, otherwise the end result will be every court adopting some nebulous lesser standard of review, and upholding every gun control law out there. That can’t be a serious way to treat a fundamental constitutional right.