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Currently Browsing: 2nd Amendment

DC Gets 90 Days

We knew the District of Columbia would likely file for a stay to the ruling allowing carry, and they did yesterday near the close of business. This morning, the federal judge granted it, but only for 90 days instead of the requested 180 days. This is one reason most people were urging folks not to carry in DC while this case in process.

It will be interesting to see what happens come October 22 – the deadline. It’s clear that the DC police proved they could come up with a somewhat workable policy on the fly with multiple memos that covered most situations for lawful carry. I see no reason why the DC City Council can’t come up with a clearer policy similar to the Police Chief’s in 90 days – assuming they don’t just appeal this and hope for more favorable decisions.

The DC Firearms Carry Memo

Alan Gura posted the memo that went out the DC police officers about how to handle carry situations. He specifically posts this important detail with the memo:

The District has indicated that they will seek a stay of the decision. If a stay were to be granted, this policy would doubtless change, and I can’t guarantee that I’ll be able to update this blog post in real time. So be careful out there.

Looking at the memo and the scenarios they outline, it does appear that anyone caught carrying will have all of their information taken down and the police will pursue “potential further investigation” even if they are perfectly lawful to carry at the time they stop you.

Carrying in DC

Well, we’re to Monday morning and it appears there’s no change in the situation from Saturday evening when it comes to the Washington, DC gun situation. In fact, last night Emily Miller was reporting on Twitter that the DC police have apparently conceded on the carry issue for the time being.

Dave Kopel notes that before you strap a gun on your hip and head into DC, you should probably try to find out more about this very fluid situation.

As of 1:30 a.m. ET on Monday morning, I was not able to find a copy of Chief Lanier’s order on the websites of the D.C. Police, D.C. Attorney General, or city government. It would be helpful for non-residents who seek to comply with the D.C. government’s interpretation of the current situation if the order were speedily made available to the public.

And he also reminds people that there are many laws on the books that were not invalidated by the court.

Nothing in the District Court’s opinion invalidates the D.C. ban on magazines holding more than 10 rounds. Nothing in the opinion addresses the numerous federal and D.C. laws which prohibit carry in a huge number of locations within the District–such as most federal buildings, lots of federal property, as well as schools and colleges. (The D.C. “school” ban even encompasses a school of cosmetology whose students are all adults.)

Win in Palmer vs. DC!

Via Alan Gura, who is the attorney for the case. This was the case challenging the District of Colombia’s ban on carrying firearms in public, that the court had been sitting on for quite some time. The court left the door open for some regulation of carry, including licensing, but “consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms.”

Needless to say, this is a significant win. Probably the most significant win since Illinois was forced to become shall-issue in the case of Moore v. Madigan. Hopefully this will strengthen the hand of Congress when it comes to setting the Districts gun laws for it, and then preempting City Council from regulating firearms.

A quick way to fix this problem would be to recognize licenses to carry from all states that issue them. I believe D.C. residents can obtain licenses from Virginia, which would probably do until D.C. sets up its own shall-issue regime.

A bigger question is whether this case will go to the Supreme Court or not. The Court hasn’t seemed eager to hear a carry case, but maybe this will be the one. If this does go to SCOTUS and wins, that would apply to the whole country.

UPDATE: It’s been so long since Palmer was heard, I forgot it was still at the District Court level, and not the DC Circuit Court of Appeals. So the next step is the Circuit Court, not the Supreme Court.

Winning with a Case Dismissal

From NRA today:

Earlier this year, the National Rifle Association (NRA) sponsored litigation against the state of Illinois for its unconstitutional system of denying concealed carry licenses without any notice or opportunity to be heard. Before the Illinois State Rifle Association (ISRA) filed suit with NRA backing, many residents were denied the right to carry a firearm without any indication as to why the state had concluded they were a danger to themselves or others. Furthermore, the state of Illinois also denied these individuals any opportunity to rebut this unsubstantiated conclusion.

The ISRA, with the backing of the NRA, challenged this scheme as a violation of due process, and the State effectively conceded as much by ending this unfair treatment of law-abiding Illinois citizens. In light of this act of submission by Illinois, the current suit has been voluntarily dismissed.

Judge Upholds Colorado’s Gun Laws

Given what I had heard about the trial, and the fact that the judge seemed to be a gun owner, I was optimistic that maybe this case wouldn’t end up being the typical District Court loss, but that would appear not to be the case. Grab your partner, gather round, and dance the intermediate scrutiny two-step on more time! Now granted, in the realm of Second Amendment opinions, I’ve read worse. I’ve actually read far worse, unfortunately. But I’m tired of this right being treated like the crazy uncle in the attic of American rights by judges. You don’t get to do that. The footnotes in this case are particularly tough to stomach:

The M-16 rifle mentioned by the Court is a military version of the AR-15 rifle, a rifle that several witnesses in this case testified that they possess for their own self-defense purposes. If, as Heller implies, the M-16 rifle can legally be prohibited without violating the Second Amendment, it seems to follow that other weapons such as the AR-15 may also be prohibited, notwithstanding the fact that some individuals believe that such weapon is important, or even essential, to their self-defense.

The M16 is a machine gun, Judge. The AR-15 is not. The AR-15 functions entirely differently. I don’t think that can just be glossed over so casually. Would it be legal to ban any firearm that has a military full-auto equivalent? Even the Browning BAR hunting rifle is based on a full-auto, military design. There’s a military version of the Glock pistol, and the Beretta pistol. This is poor reasoning.

After that, there’s this footnote about the paradox of better-trained users needing less rounds in a magazine:

There is a curious paradox here: the more competent the defensive firearm user, the more likely he or she is to hit her target with fewer shots, and thus, the less likely that user is to need a large-capacity magazine for defensive purposes. By contrast, the less competent or confident the user, the greater the number of rounds the user perceives he or she needs. One wonders how these perceptions are affected by exposure to military grade weaponry in news and entertainment.

What she doesn’t understand is that the dirty little secret is a big reason that cops almost universally carry large caps these days is because they need them, often due to poor firearms training. There is honestly no argument here that applies to civilians is not equally or more applicable to cops. Courts should not overlook police use in these cases. If magazines holding more than X rounds are routinely issued to officers, then they should be protected arms for civilians as well. End of analysis. We should not require civilian firearms owners and carriers to be trained gun ninjas, while we allow police officers to roam the streets with firearms, many of whom get no more practice in than their yearly qualifications.

The judge read the Americans with Disabilities Act narrowly in considering the ADA claims in the suit, arguing that because the laws didn’t create any particular government service that discriminated against the disabled, the ADA was no obstacle to the law. The claim seems to be that the ADA doesn’t apply to laws that discriminate against the disabled, only services. I don’t know enough about the ADA to comment on this.

This judge was a George W. Bush appointee. It was apparent during the trial she knew something about guns, and there seem to be evidence to believe she may actually own one. But this shows how utterly hostile the ruling class is to civilians being well-armed, and at least as well-armed as the police. I’m sure this will be appealed, but I am not optimistic. I’m afraid the only way Coloradans are getting rid of these new laws is to repeal them. The courts cannot be counted on to give meaningful relief for infringements on this fundamental right. The refusal of the Supreme Court to hear any further cases on the matter will only embolden lower courts in their efforts to marginalize the right. The Second Amendment is to remain the crazy uncle in the attic of the Bill of Rights for the foreseeable future.

As always, I encourage everyone to read the opinion. It is important for every Americans to understand how much judges do not care for this right, and do not care to treat it seriously. The only way we win is by punishing anti-gun politicians and electing pro-gun politicians. Everything else is window dressing.

A Right Delayed is a Right Denied

Jeff Soyer notes an article out of Connecticut that Gov. Dannel Malloy’s Sandy Hook Advisory Commission plans to suggest mental health “suitability screenings” for gun owners and sellers in their state.

Later in the article, they note that the commission that has been meeting since January 2013 still doesn’t have any of the medical records for Adam Lanza. If a commission ordered by the state governor can’t get records together in 18 months, how long will they make “applicants” to own or sell guns wait while they attempt to gather records?

The final report with formal recommendations is due this summer, so I’m sure that every gun control dream will be listed.

On the 226th Anniversary of Ratification

Dave Hardy notes was done with the expectation there would be a Bill of Rights, which they hoped would contain:

XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.

XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.

Now the other side, particularly Professor Adam Winkler, would be fond of jumping on the last part as evidence that our founders supported gun control. I don’t think that has ever really been in question, but let’s not pretend that there was, in colonial times and in the Early Republic, anything resembling what modern gun control advocates propose.

The latest book out on this subject, which I mentioned here and am in the process of reading, relies upon the fact that in the debates, the founders were singularly unconcerned with arguing the self-defense angle to keeping and bearing arms. This is mostly true, but they did talk about it, and some states even have it enshrined in their RKBA provisions. You can certainly make a compelling narrative that the founders were only concerned with the distribution of military power, and not self-defense, but it requires overlooking some very glaring evidence that the right was indeed meant to protect private self-defense, as well as the militia as an institution.

Quote of the Day: Second Amendment Addition

This comes to us via NRA’s Civil Rights Defense Fund:

Believing that the [second] amendment does not authorize an individual’s right to keep and bear arms is wrong. The right to bear arms is an individual right. The military connotation of bearing arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights. The “right” to be a soldier does not make much sense. Life in the military is dangerous and lonely, and a constitutionally protected claim or entitlement to serve in uniform does not have to exist in order for individuals to enlist if they so choose. Moreover, the right to bear arms does not necessarily have a military connotation, because Pennsylvania, whose constitution of 1776 first used the phrase “the right to bear arms,” did not even have a state militia. In Pennsylvania, therefore, the right to bear arms was devoid of military significance. Moreover, such significance need not necessarily be inferred even with respect to states that had militias. Bearing arms could mean having arms. Indeed, Blackstone’s Commentaries spoke expressly of the “right to have arms.” An individual could bear arms without being a soldier or militiaman.

Leonard W. Levy, ORIGINS OF THE BILL OF RIGHTS 134-35 (Yale Univ. Press 1999).

San Diego in Peruta: OK With AG Intervention, Not Moot

Yesterday, San Diego County filed a response with the 9th Circuit Court of appeals to the Motions to Intervene by the California Attorney General, and whether the case was moot. They are fine with the intervention of the State AG, and argue the case is not moot, since they are still sitting on applications awaiting a final decision. You may recall a few weeks ago there was some argument over whether or not Peruta was moot, in which case Richards v. Prieto would be the case to go forward, so this should settle that issue in favor of Peruta not being moot. At this point, I’m not even sure what outcome to hope for anymore, because in one sense, I’d like to give the Supreme Court another bite at the apple, except I’m not sure they’ll take it, so part of me feels we’re better off with this not going en banc.

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