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Hillary and the Second Amendment

Charles C.W. Cooke has a pretty good article challenging the left’s “You paranoid sensationalist gun nuts always thinking people want to take your guns! Of course Hillary doesn’t want to repeal the Second Amendment.”

As anybody with an elementary understanding of American law comprehends, one does not need to call an Article V convention in order to effectively remove a provision from the Constitution. If, for example, Donald Trump were to claim tomorrow that the First Amendment did not protect an individual right to speech, how do we imagine that the press corps would react? Do we think that the New York Times’s editorial board would nonchalantly say “well, that’s fine because he hasn’t called for Article V repeal”?

Even without overturning Heller, her nominees would still have the opportunity to narrow to meaninglessness. Sure, outright bans might never come back, but de-facto bans, like the one that exists in New York City, could be upheld. Even Washington D.C. responded to Heller by enacting restrictions that were still quite onerous, and would never be considered acceptable in the context of other Constitutional rights. Chicago fared a little better, but only because the 7th Circuit was unusually cooperative, and it bolstered the negotiating position of the rest of Illinois, which favors gun rights. Without a fourth and strong pro-2A Supreme Court ruling, the Second Amendment is already dead letter.

Stun Gun Rights Spreading

Eugene Volokh takes a look at various stun gun bans. A lot of states and localities were moving in the direction of repeal before Caetano v. Massachusetts. So far, post Caetano repeals:

  • The US Virgin Islands
  • Baltimore County (though it is still on the books, but the County Attorney has announced it will no longer be enforced)

Philadelphia still has its ban in place, but at this point it’s hard to see how it would be enforceable in light of Caetano. Like I said when the ruling came out, I don’t think anything should be read into that ruling in regards to how the liberal justices would treat a firearms case, but I can’t discount the fact that Caetano was a good ruling. If we can defeat Hillary, and get a few more friendly justices on the Court, it would be possible to build on this ruling in a positive way. If things go the other way, I think we’ll be lucky to hold on to Heller and McDonald.

I hate to admit that, because I don’t like Trump, but that’s the way it is.

Supreme Court Denies Appeal to Connecticut Assault Weapons Ban Case

The Supreme Court has denied cert in Shew v. Malloy, the challenge to Connecticut’s enhanced assault weapons ban, which was passed after Sandy Hook. This will leave the ban in place. It’s probably the best possible outcome after losing Scalia, so we shouldn’t be too disappointed this was the result. It would have been far worse for cert to be granted and to lose the case, which we probably would have.

Reading the tea leaves a bit, which is always dangerous, this at least tells me the four Dem appointees on the Court probably aren’t interested in taking Second Amendment cases while the court is split four to four.

A Strategy for Opposing Terror Watch List Legislation

Charles C.W. Cooke is onto something here, in his very Glenn Reynoldsesque suggestion:

I shan’t re-rehearse my case against the civil use of terror watch lists here; those interested can read my three offerings from last year here and here and here. But I will suggest a modest course for those in Congress who remain opposed to this folly: Why not amend any bill so that it covers the entire Bill of Rights? Hillary Clinton is on record suggesting that the United States should impose some censorship on the Internet so that would-be terrorists cannot communicate with one other. Well, if the prospect of terrorists using the internet really is that dangerous — and if those who oppose Clinton’s coveted reforms are just dogmatically wedded to outdated concepts such as “freedom of speech, et cetera . . .” – then there shouldn’t be any problem with the federal government preventing anybody suspected of terrorism from using a modem, should there? Sure, at one point in American history it made sense to require due process before we stripped core rights. But that was back in the days of pamphlets and printing presses, not now when one can spread information across the world in the blink of an eye.

Read the whole thing. He also has clearly read his Alinsky: make them live up to their own standards. The arguments the Dems will make against this will destroy their own arguments for the gun portion of it.

Not all news from New Jersey is bad

Scott Bach wins one in New Hampshire for out-of-staters.

Third Circuit: No 2A Right to Machine Guns

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This decision was released right before I left for Louisville. The Third Circuit contains Pennsylvania, Delaware and New Jersey, and has not, in general, been a very Second Amendment friendly circuit.

Heller and subsequent decisions in our Court make clear that the de facto ban on machine guns found in § 922(o) does not impose a burden on conduct falling within the scope of the Second Amendment. Turning first to Heller, we note that that opinion discusses machine guns on several occasions, and each time suggests that these weapons may be banned without burdening Second Amendment rights.

I’ll be honest, I think that’s a misreading of Heller. The Heller opinion does strongly imply that perhaps bans on M16s might be permissible, but it does not explicitly state it. The Court’s opinion calls the reading of Miller that would rule the NFA’s machine-gun provisions unconstitutional “startling.”

Read in isolation, Miller’s phrase “part of ordi­nary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

I think the Court is correct, except I think the only fair way to determine “common use” is to examine whether the weapon is part of “ordinary police equipment,” the police being the nearest modern analogue to the militia. If the Heller “common use” test were untempered by any analysis of police equipment, the government could evade the “common use” test by banning any new defensive technology before it has a chance to end up being commonly used, as the State of Massachusetts tried to do with electric stun guns (which SCOTUS struck down recently).

So was the NFA truly banning unprotected weapons that have no common defensive use, or was it merely trying to evade Second Amendment protections by preemptively banning it before the people had a chance to speak? To look at that, you have to look at what the police are choosing to arm themselves with, since police carry guns for self-defense, and not to conduct battlefield operations. Are machine guns in common use among police? I don’t know, but the courts should be asking that question before simply categorically declaring machine guns outside of Second Amendment protections.

Major Civil Rights Victories

Maybe I should get too busy to blog more often if we’re going to have a rash of good news. I’ll probably take a bit more time in the car to look over the details, but I’m very happy to announce we scored a major court victory over Washington DC in regards to issuance of concealed carry permits. Remember that DC’s prohibition regime was thrown out by another case, and in they immediately implemented a weak may-issue regime modeled after New Jersey, Maryland and New York City. The judge tossed that, as he should have. Key findings in the decision:

  1. The Second Amendment’s applicability is not limited to the home.
  2. Defendants [DC] are unlikely to demonstrate an unrequited presumption of constitutionality for the District’s “good reason” requirement.
  3. The district’s concealed carry scheme is likely unconstitutional.
  4. Strict scrutiny is likely the appropriate level of constitutional scrutiny.
    1. The District’s “good reason” requirement burdens core Second Amendment conduct.
    2. The District’s “good reason” requirement imposes a substantial burden on core Second Amendment conduct.
  5. Plaintiffs will suffer irreparable harm absent injunctive relief.
  6. The balance of equities and the public interest also with in Plantiff’s favor.
  7. Issuing a permanent injunction would be imprudent.

You’ll note from the case that the Judge has granted a preliminary injunction, rather than a permanent one, so there will still be a trial, but this is very good news, and indicates the case will be tried by a judge who takes this stuff seriously. This is about as good a result as we could hope for.

The second victory is out in California, in the case of Teixeira v. County of Alameda in the Ninth Circuit. This is a three judge panel. This case is interesting because it will have direct bearing on the Nova Armory situation. Here the antis tried all their usual tricks: no gun stores within 500 feet of residential areas, schools, parks, etc. From the case:

The government can’t satisfy this scrutiny simply on the assertion that “gun stores act as magnets for crime.” “Indeed, Teixeira took pains to remind the court that ‘all employees working at a gun store, and all clients/customers are required to be law-abiding citizens.’” Therefore, the case must be remanded to the district court. And on remand, the district court must require “at least some evidentiary showing that gun stores increase crime around their locations” and must require some “explanation as to how a gun store might negatively impact the aesthetics of a neighborhood” (if the government continues to rely on a community aesthetics rationale for its zoning rule).

Of course, they can’t show gun stores drive crime rates. That was just a bullshit excuse to ban gun stores from opening. Now, certainly they do care about the wrong kind of people coming into their community, but you, dear readers, are that wrong kind of person.

It’s a good thing when the courts make them back up their assertions, because they honestly can’t.

Civil Rights Victory in Mariana Islands

The Second Amendment Foundation has won a victory in federal court, with a ruling that overturns the Commonwealth of the Northern Marianas Islands (CNMI) ban on handguns. Given that this was an outright ban, not much different from DC’s or Chicago’s, it would have taken some pretty convoluted logic, or just outright ignoring the Supreme Court, to argue that the ban could stand. CNMI is part of the 9th Circuit Court of Appeals.

This can still be appealed, but given the direct congruence to Heller & McDonald, I doubt even the liberal 9th Circuit would overturn it. I agree with NRA-ILA’s analysis that warns not to get hopes up over the decision in Caetano v. Massachusetts. We have two votes on the Supreme Court for a robust Second Amendment. Two. Caetano made that clear. The only way we’re going to get more is to win elections.

UPDATE: I’m told the NRA Civil Rights Defense Fund also contributed to this case.

Second Amendment Right to a Stun Gun

The Supreme Court delivered a unanimous opinion that the Massachusetts Supreme Judicial Court got it wrong when it ruled that there was no constitutional right to a stun gun. You read that right: unanimous. Yeah, I’m shocked too. Gives me some hope that maybe with Scalia’s death we’re not doomed after all. This is the first Second Amendment decision from the SCOTUS since McDonald. The per curiam opinion is so short I can reprint it here:

 

The Court has held that “the Second Amendment ex- tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amend- ment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Su- preme Judicial Court of Massachusetts upheld a Massa- chusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposi- tion “that only those weapons useful in warfare are pro- tected.” 554 U. S., at 624–625.

For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It follows with an opinion by Thomas and Alito excoriating the Massachusetts Supreme Judicial Court for flagrantly ignoring Heller. Also, this is fun:

Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying “the sorts of lawful weapons that they possessed at home,” and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.

That pretty much puts to bed several arguments of our opponents, and a few from people on our side who still read Miller that way.

Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, pre­ sumably for such purposes as nonlethal crowd control. Subduing members of a mob is little different from “sup­ press[ing] Insurrections,” a traditional role of the militia. U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be called forth “to execute the Laws of the Union”). Addition­ ally, several branches of the U. S. armed services equip troops with electrical stun weapons to “incapacitate a target without permanent injury or known side effects.”

Are we seeing the beginnings of my preferred “police use” test? Namely, if the cops routinely use a type of weapon it’s unquestionably a protected arm. Obviously this was an opinion by two justices, but let us hope this unanimous ruling sends a message to the lower courts. I don’t think this should be read as any kind of revelation on the part of the liberal justices. I still think they’d vote to uphold carry restrictions and assault weapons bans. But this is certainly a ray of sunshine considering the darkness I see on the horizon.

Obama’s Scalia Replacement

President Obama will announce his nominee to replace Justice Scalia shortly. The press reports that it is Merrick Garland.

Not surprisingly, he’s got a record that does not point to a positive future for the Second Amendment if he is confirmed.

This article from Dave Kopel in 2008 warned of Garland on a short list to be appointed, and he cited red flags from Garland’s role in Parker v. District of Columbia and NRA v. Reno. Kopel summed it up this way:

Merrick Garland is a judge on the U.S. Court of Appeals for the D.C. Circuit. He could be counted on not only to oppose Second Amendment rights in general, but even to nullify explicit congressional statutes that protect those rights.

More recently, even National Review noted that Garland’s positions on the Second Amendment were enough cause for worry since the White House indicated they might choose someone “moderate,” and these aren’t signs of moderate positions on the right to keep and bear arms.

Media Matters had a post up early this morning trying to claim that these previous moves are “myths,” and that he’s not really anti-Second Amendment. I guess that means the White House knows it will be a problem. Now would be a great time to call your Senator and let them know what you think about this nominee.

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