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Breaking: Major Win in 4th Circuit Over Maryland Assault Weapons Ban

Finally, judges who are willing to take Heller and McDonald seriously, and offer us serious Second Amendment protections. In short, the lower court had ruled Maryland Assault Weapons Ban was constitutional, having applied intermediate scrutiny. The three-judge panel of the Fourth Circuit Court of Appeals has now vacated that ruling and ordered the lower court to apply strict scrutiny. Note at least one well-known blog is reporting this ruling struck down the ban, but it does no such thing. It merely vacates the lower court ruling and demands the lower court reconsider with the highest standard of review. Though, it is clear from the Court’s language that they do not look favorably on the ban. Here’s a passage talking about “Large Capacity Magazines.”:

Likewise, the record in this case shows unequivocally that LCMs are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States. In fact, these magazines are so common that they are standard.

Finally! A court willing to not only find that they are in common use, but one willing to admit that carries with it serious Second Amendment considerations! Granted, this could still be overturned en-banc, and appealed to the Supreme Court, but if this holds, it will be the end of Maryland’s assault weapons ban. It will be the first instance of an assault weapons ban thrown out by the courts.

Contrary to the district court’s conclusion, the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden.

That’s a refutation of the substitution argument that Eugene Volokh is all too fond of. Quite a step for the federal courts to take. This is not a finding of unconstitutionality, it should be noted. They have only directed the lower court to apply the correct standard of scrutiny.

Because the district court did not evaluate the challenged provisions of the FSA under the proper standard of strict scrutiny, and the State did not develop the evidence or arguments required to support the FSA under the proper standard, we vacate the district court’s order as to Plaintiffs’ Second Amendment challenge and remand for the court to apply strict scrutiny in the first instance. This is not a finding that Maryland’s law is unconstitutional. It is simply a ruling that the test of its constitutionality is different from that used by the district court. The State should be afforded the opportunity to develop its case in light of this more demanding standard, and Plaintiffs should be permitted to do so as well.

This is still very good. Strict scrutiny is a high level of review. One disappointing thing in the ruling is that they rejected the equal protection argument in regards to exempting retired law enforcement from the ban:

For all these reasons, we affirm the district court’s decision on the equal-protection issue. Retired police officers and the public are not similarly situated, and dissimilar treatment of these dissimilar groups does not violate the Equal Protection Clause.

There’s that conservative love of law-and-order again. Police can super-citizens. Like you and me, only better. Still, this is a pretty significant win. Let’s hope by the time this bubbles back down and then back up we might have a friendlier Supreme Court.

DC Concealed Carry Ruling Tossed by Court of Appeals

John Richardson has the story. The fortunate part is that it’s on procedural grounds and not on the merits of the case. Essentially the Court of Appeals argues that Judge Scullin should never have been assigned a case like this, since he was sitting on the DC Court from another district. It’s not uncommon for “retired” federal judges to serve when they are needed. Even Justice O’Conner has been hearing cases in the 9th Circuit since retiring from the Supreme Court. In this case, the Court has decided that Wrenn must start over.

This is unfortunate, but to be honest, we should want the wheels of justice to turn slowly, on the hope that if we have a favorable outcome in 2016, we can get changes on the courts that will help us secure a more robust Second Amendment we clearly will never get from this Supreme Court.

Court Denies Cert in Highland Park Gun Ban Case

We’ve been waiting with bated breath as the Supreme Court kept holding over the case of Friedman v. Highland Park. Will they take cert? Are they still arguing? Are they waiting for a dissent to denial to be finished?

We now have our answer. Cert is denied: the Supreme Court will not hear the case. That leaves the ban to stand. However, Justice Thomas penned a powerful dissent, which was joined by Justice Scalia. Scroll down to the very end to read the dissent:

“[O]ur central holding in” District of Columbia v. Heller, 554 U. S. 570 (2008), was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. Chicago, 561 U. S. 742, 780 (2010) (plurality opinion). And in McDonald, we recognized that the Sec- ond Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment).

Despite these holdings, several Courts of Appeals— including the Court of Appeals for the Seventh Circuit in the decision below—have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410–412 (2015). Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case.

Noncompliance is an understatement at this point. I appreciate Justice Thomas’ and Justice Scalia’s spirited defense of a meaningful Second Amendment, but this dissent doesn’t have any legal meaning. The lower courts are still free to interpret the Second Amendment into irrelevance, which they have largely done.

The Seventh Circuit alternatively asked whether the banned firearms relate “to the preservation or efficiency of a well regulated militia.” 784 F. 3d, at 410 (internal quo- tation marks omitted). The court concluded that state and local ordinances never run afoul of that objective, since “states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade fire- arms.” Ibid. But that ignores Heller’s fundamental prem- ise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess.

Our only hope here is that there are changes in the Court, which means the Democrats cannot win in 2016 if we’re to have a robust Second Amendment. I get that not everyone likes the Republican candidates this year, and I’m not demanding people vote for whatever yahoo wins the nomination. It is simple a fact that if a Democrat wins in 2016, there will no longer be any Second Amendment right the courts are willing to protect.

Justice Thomas and Justice Scalia have at least left us a legacy, however. The author of the Heller opinion, and a concurring author of the McDonald opinion view the Second Amendment right broadly, believe that the people have a broad right to semi-automatic weapons, and reject categorical bans on common firearms.

Perhaps then in the future, a brave panel of justices will buck circuit precedent and kick a new Second Amendment case to the Supreme Court. But it’s going to take a willingness to do that, and that kind of bravery is unusual in federal judges (at least conservative judges. Leftist judges will just do whatever they want). It may be a long long time before we see another Second Amendment case before the Court again.

For now, we have to defeat Bloomberg and his ilk the old fashioned way. I’d also note that since the Supreme Court has abrogated its duty to us, will do still have the option of Congress taking action using its Section 5 powers under the 14th Amendment, and I do believe it is incumbent upon Congress to avail themselves of this power with the courts so unwilling to act.

Second Circuit Upholds SAFE Act, Mostly

This is not really much of a surprise, as the Second Circuit has been in open defiance of Heller and McDonald since the Court handed down those decisions. The Second Circuit sustained the unconstitutionality of the seven round load limit, made by the lower court, but also invalidated the ban on the pump-action Remington 7615.

You can read the whole opinion here. They followed the same reasoning as the Heller II court, arguing that they are indeed in common use, and typically possessed for lawful purposes. But they put all that aside and said they could be banned anyway. The reasoning is even worse than in Heller II.

Heightened scrutiny need not, however, “be akin to strict  scrutiny when a law burdens the Second Amendment” — particularly when that burden does not constrain the Amendment’s “core” area of protection. The instant bans are dissimilar from D.C.’s unconstitutional prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose” of self‐defense.94 New York and Connecticut have not banned an entire class of arms. Indeed, plaintiffs themselves acknowledge that there is no class of firearms known as “semiautomatic assault weapons”—a descriptor they call purely political in nature.95 Plaintiffs nonetheless argue that the legislation does prohibit “firearms of a universally recognized type—semiautomatic.” Not so. Rather, both New York and Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more enumerated military‐style features.

In other words, it bans an entire class of arms, but we’ll just use some trickery and tell you how it really doesn’t. After that it’s your basic Intermediate Scrutiny two-step. One wonders why the Court of Appeals even bothered with the first part of the analysis.

Again, the lower courts are in open revolt against Heller and McDonald, and I do not think the Supreme Court has any stomach to put the revolt down. If we can win the White House in 2016, we need to call on Congress to save the states which treat the Second Amendment as if it were toilet paper.

Will SCOTUS Hear the Assault Weapons Case?

Bob Owens’s money is on “no.” I also think that is the safe bet. Trying to divine the purpose and meaning behind the Supreme Court’s moves is really not much more rigorous than tea leaf reading. But as I’ve said before, I don’t think Scalia and Thomas’s dissent in denying cert in Jackson was a good omen. Ian seems to have agreed with that assessment. I haven’t seen anything that changes my mind. The Jackson case would have just been reinforcing Heller. It would not have required the Court to do much in the way of blazing new trails in Second Amendment law. I took Scalia and Thomas’s dissent as desperate frustration that the Court was not only unwilling to take additional cases to further define the contours of the right, but was also unwilling to even defend Heller from the predations of the lower courts.

It’s quite possible that one of the Heller justices in the majority voted with the majority because he wasn’t willing to nullify the Second Amendment, but beyond that has little desire to see a lot of state and local gun laws overturned. This would fit the judicial minimalism philosophy of Justice Roberts. I’ve been amused by a lot of folks suggesting that Roberts is going liberal. I don’t think this is the case. Judicial minimalism or judicial restraint have generally been regarded as conservative philosophies rather than liberal ones. Also consider the President who appointed Roberts mostly had an interest in ensuring his “Global War on Terror” initiatives were upheld by the Court. Minimalism has been a good way for politicians who seek power to fool a lot of people into allowing them power under the banner of “conservatism,” with courts willing to strike down unconstitutional excesses being labeled “activist.” The American people have been played, but hopefully have started to catch on. We have to demand the next President appoint justices who are ready and willing to strike down unconstitutional laws, and enforce appropriate limits on governmental power.

The Atlantic: Gun Rights and Slavery Go Hand in Hand

Slave StatesI was wondering when Saul Cornell, former director of the now defunct Second Amendment Research Center, would show his face again. SARC was a Joyce funded effort to promote anti-Second Amendment scholarship to counter the voluminous pro-Second Amendment scholarship that had started dominating academia. The two disparate points of view came head-to-head in the Heller decision, and not a single justice accepted Cornell’s points of view.

I guess now that the Supreme Court has sufficiently signaled that it would not defend the Heller and McDonald decisions, and with Bloomberg throwing millions of dollars around to promote biased and flawed research, Prof. Cornell must might figure it’s time for him to come back on the scene. At “The Atlantic,” Cornell co-authors “The Slave-State Origins of Modern Gun Rights.” There’s an accompanying paper here.

His argument is as bogus as his previous anti-Second Amendment research partner Carl. Cornell completely glosses over the fact that the origins of gun control also come from the slaveholding South, in the form of attempting to disarms slaves and free blacks. Pro-Second Amendment scholarship has consistently shown that a significant concern for the drafters of the 14th Amendment was protecting the rights of free Blacks to keep and bear arms. Why would they have been concerned about this if there was such a culture of gun control in the North? Cornell points out that several Northern states had laws against going armed in an offensive manner. Yes, you could not legally carry a pistol and rob a bank with it, but that’s a different animal than carrying a firearm without ill intent.

Cornell clearly believes, and probably correctly, that the next big showdown is going to be over the right to bear arms, rather than merely keep them. If a Democrat wins in 2016, he’ll probably get his wish to redact that part of the Bill of Rights. Probably his wish to redact the whole Second Amendment and overturn Heller and McDonald. I believe the other side is very emboldened these days. If I had Bloomberg’s money to spend, and a supportive White House, I would be too. In the coming months and years, it is incumbent on us to be ready to mobilize to teach them once again that they are on the wrong side of history, and that they cannot win.

Partial Win in DC Circuit

A 3 judge panel has struck down some of DC’s gun laws. In the Heller III case. The Court threw out their gun rationing scheme, which is good news. The panel struck down the requirement that gun owners re-register every three years, appear in person, but upheld registration and training in general. The full opinion can be found here:

For the reasons set forth above, the district court’s final order is AFFIRMED with respect to: the basic registration requirement as applied to long guns, D.C. Code §7- 2502.01(a); the requirement that a registrant be fingerprinted and photographed and make a personal appearance to register a firearm, D.C. Code § 7-2502.04; the requirement that an individual pay certain fees associated with the registration of a firearm, D.C. Code § 7-2502.05; and the requirement that registrants complete a firearms safety and training course, D.C. Code § 7-2502.03(a)(13). The district court’s order is REVERSED with respect to the requirement that a person bring with him the firearm to be registered, D.C. Code § 7- 2502.04(c); the requirement that a gun owner re-register his firearm every three years, D.C. Code §7-2502.07a; the requirement that conditions registration of a firearm upon passing a test of knowledge of the District’s firearms laws, D.C. Code §7-2502.03(a)(10); and the prohibition on registration of “more than one pistol per registrant during any 30-day period,” D.C. Code § 7-2502.03(e).

Mixed bag, really. I’d probably not want to file cert on this case unless there’s a change on the Supreme Court that would make it stronger on the Second Amendment. It would be risky taking a case challenging these issues forward.

h/t Dave Hardy

Second Amendment Extended to Non-Residents by 7th Circuit

Despite the fact that the Supreme Court ruled that the Second Amendment right was a fundamental right, there is still an open question about whether or not it’s a fundamental right of personhood, like freedom of speech, or a citizenship right that can be restricted to non-citizens, like voting. Preexisting Supreme Court precedent essentially made Second Amendment rights for permanent residents a slam dunk after Heller and McDonald, and we’ve seen the courts have been favorable to that idea. For non-resident aliens, it’s a different matter. If it’s a citizenship right, then they can be barred from exercising that right, the same way they can be barred from voting.

Most of the rights protected in the Bill of Rights are fundamental rights of people. The idea of voting being a right at all was an alien concept until very recently. The 7th Circuit recently ruled that non-citizens have the right to bear arms, but that 18 U.S.C. 922(g)(5) was a permissible restriction. This makes me question whether or not someone in the country on a non-immigrant visa, but here legally, would have a reasonable chance of challenging 18 U.S.C. 922(g)(5)(B). Remember, it is technically illegal (felony illegal, in fact) to take a foreign national who is not here on an immigrant visa shooting. This is not usually enforced, but it is the law.

I would imagine an originalist analysis would have to look at the public understanding of the right at the time of ratification. The issue there is the concept of an illegal immigrant may have been foreign to the population at the time. Prior to about the late 19th century, there was virtually no federal laws controlling immigration, yet as early as 1798, Congress did pass a law that allowed for deportation of aliens that were “dangerous to the peace and safety of the United States.” Of course, it also restricted free speech and was roundly condemned by Thomas Jefferson. We know them as the Alien and Sedition Acts. It wasn’t until the 1870s and 1880s with the Page Act and Chinese Exclusion Act that Congress asserted a power to control immigration as well as naturalization at the federal level. You had Congress exercise at least some level of control over immigration with the Steerage Act if 1819, but that was just a reporting requirement. Prior to the existence of the United States, many of the colonies had their own immigration laws, most of which encourage immigration from Britain and Germany, but largely excluded Catholics. I’ve read articles arguing that Congress originally had no power to legislate on immigration, which would leave it up to the states. A question is how many states did so. But I’m also not sure that just because Congress didn’t exercise that power until 1875 didn’t mean they weren’t understood to have it.

My feeling is that the founding generation probably understood non-resident immigrants to have full Second Amendment rights, but in today’s political environment that seems untenable.

The courts have taken us this far, and no farther

It’s become obvious in the past few years that the federal appellate judiciary is generally hostile to expanding firearms rights, and that SCOTUS is unwilling to push the matter. It’s been a question in my mind as to why that might be, and I am examining some of my preconceptions about which Justices voted to grant cert. and why.

I’ve assumed, as did most people, that the majorities in both cases included the justices who granted cert. But, what if that’s not the case? In particular, what if Justice Roberts did not vote to grant cert, and what if instead one or more of the dissenters voted to grant cert. in Heller to take the opportunity to stop, once and for all, the individual rights interpretation, and then in McDonald to prevent the application of Heller to the states?

I infer from the most recent two decisions (King v. Burwell and Obergefell v. Hodges), as well as previous statements and decisions, that Justice Roberts really does not want to change the status quo when he thinks that the legislature should act instead. So, he votes against cert. so the courts don’t have to get involved in what he sees as a political decision, but when the question comes up anyway, he votes pro-rights in a fit of constitutional conscience. Meanwhile, the anti-gun justices went 0 for 2 in convincing their fellows of the rightness of their position, so they’re no longer interested in taking the third pitch, leaving Justices Thomas, Scalia, and Alito alone to vote to grant cert.

This isn’t my only theory of Justice Roberts and the missing cert. vote, it could be that he saw Heller as necessary and McDonald as sufficient to put the question back to the states (or that as of late the states are making strides on their own and SCOTUS should not intervene).

At any rate, we need to stop relying on the courts and continue to move in the legislatures. At the state level, this is already happening. We’ve suffered some reverses (WA and OR), mostly due to Bloomberg, but there’s a limit to how effective money can be. The important thing is, not to go too far, too fast. The NRA is throwing its political weight behind national reciprocity, which has come tantalizingly close to passing in previous congresses that were less obviously pro-rights. Will it be enough to override a veto? Maybe not, but it sets a marker. If a lawmaker votes Yea on this and this president vetos it, that lawmaker has to explain why he changed his mind in a subsequent vote. Once national reciprocity happens, then we can start working on the real prize; forcing shall-issue and “self-defense is good cause.”. FOPA proves that the federal government can force shall-issue, after all, they forced it for retired LEOs. They ought to be similarly able to force states to match NCIS’s timelines for completing background checks and force the states to consider self-defense as a “good cause” or “in the interests of public safety.” All of that theoretically leaves the management of purchase and carry at the state level, while requiring them to treat the RKBA as an actual right. Congress has the enforcement clause of the 14th amendment to justify this, too, no need to muck around with Commerce Clause.

This won’t happen soon, and it won’t happen with a hostile administration in the White House. So, just remember, elections have consequences (as our Chief Justice just reminded us).

DC Concealed Carry Dealt a Blow

It looks like the May 18 decision that ended Washington DC’s “good reason” provision to approving concealed carry licenses is now on hold.

The U.S. Court of Appeals on Friday evening stayed a ruling that had overturned a key provision of the District’s concealed carry law, giving city officials a legal reprieve and opportunity to prepare an appeal arguing that the law is constitutional.

That means anyone rushing out to apply will now have to fit the criteria in place as of early May.

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