Currently Browsing: 2nd Amendment

DC Circuit Overturns “Good Cause” Requirement

This opinion was just handed down today, before Judges Griffith and Williams who were in the majority, and Judge Henderson who dissented. I’d note that Judge Griffith was a George W. Bush appointee. Judge Williams was a Reagan appointee, and Henderson an George H.W. Bush appointee. Elections do matter, and as I’ve said before, we can move the ball forward even with very flawed candidates.



This point brings into focus the legally decisive fact: the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self- defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. We say “necessarily” because the law destroys the ordinarily situated citizen’s right to bear arms not as a side effect of applying other, reasonable regulations (like those upheld in Heller II and Heller III), but by design: it looks precisely for needs “distinguishable” from those of the community. So we needn’t pause to apply tiers of scrutiny, as if strong enough showings of public benefits could save this destruction of so many commonly situated D.C. residents’ constitutional right to bear common arms for self-defense in any fashion at all. Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test that was appropriately written and applied, so we strike down the District’s law here apart from any particular balancing test.

Finally, a court willing to reject interest balancing approaches to the Second Amendment! The ruling upholds licensing for carry, which is disappointing, but at this point eliminating “good cause” requirements and rejecting the assertions that entire cities can be off limits to carry is a step in the right direction.

We pause to draw together all the pieces of our analysis: At the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense.

One thing I’d notice, however, as we look toward this case possibly moving forward, is that Justice Kennedy has not announced any retirement, and it’s getting late in the summer. The Court goes back to work September 25th.

Bucking Precedent

While I was taking a break over the week of the 4th of July holiday, a ruling was handed down by a federal court in California enjoining the state from carrying out its confiscation of standard capacity magazines. Dave Kopel’s article about the case is the best I’ve seen, so read the whole thing.

The court ruled that the Second Amendment was implicated in the magazine ban and such a ban failed intermediate scrutiny. To me this should trigger strict scrutiny, but intermediate scrutiny, prior to Second Amendment law, was still a pretty high standards if Courts actually applied it. The problem with what the lower courts have done is they’ve taken to just reclassifying rational basis review as some higher level of scrutiny, and so far SCOTUS has allowed them to get away with it.

The court here also ruled that the taking was an issue, that essentially the state can’t confiscate property without fair compensation.

It will take courts willing to buck precedent in the future if the makeup of SCOTUS improves, so that we can move cases forward. There are judges out there that think what the lower courts have done with Second Amendment law is wrong and are willing to help us address that. It should be noted that Judge Benitez, who wrote the opinion in this case, was appointed by George W. Bush. It is possible for us to improve our lot even with very imperfect presidents in the White House.

Cert Denied in Peruta v. California

The Supreme Court will not hear Peruta. It looks like Thomas and Gorsuch dissented from the cert denial, signaling that Gorsuch is willing to take the torch from the late Justice Scalia when it comes to Second Amendment issues. From the dissent, written by Justice Thomas:

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to “bear arms” means to “wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offen­ sive or defensive action in a case of conflict with another person.”

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem anti­ quated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

Also, some tea leaf reading: if Kennedy retires this summer, as is rumored, if you ask me it’s a strong signal that he’s not the weak link in the Heller majority. The case would be heard before whatever justice replaces him, which given Trump’s short list, is liable to be good on the issue. I’ve long argued that I believe Roberts’ judicial minimalism is the issue we’re up against, and not Kennedy’s tendency to switch hit. Though, it could be a combination of both.

What we do know is that Thomas, Alito, and now Gorsuch have written or joined forceful dissents of the Supreme Court abrogating its responsibility to the Second Amendment. That’s three solid votes. Unfortunately, we need five solid votes to move the ball forward.

Rumors Getting Stronger on Kennedy

The rumor mill is getting stronger that Justice Kennedy will hang it up this summer, but one has to wonder if the rumors are being floated by others to coax him, or the rumors represent true information based on private conversations that have been leaked. We’ll find out soon enough.

I’ve said before that I don’t think Kennedy is the weak link in the Heller majority. We know that Alito, Thomas, and Scalia are/were firmly on board. Given Justice Gorsuch’s judicial philosophy, we can assume he’s a likely solid vote. So it’s either Roberts or Kennedy who is the weak link, or possibly both. It’s quite possible that Kennedy is reluctant on the Second Amendment, and combined with Roberts’ tendencies toward minimalism, taking the Second Amendment further is an impossible proposition with the Court as it is now. Justice Kennedy retiring would definitely change things, unlike Justice Gorsuch’s ascention, which was about maintaining status quo.

Apparently NRA and CRPA are bringing suit against California’s latest assault weapons ban. It’s pretty clear they think something has changed, or will change soon enough, to warrant taking a risky case forward.

I Hate This Fiction That Judges Don’t Have Legal Opinions

I can understand why a judge would not want to comment on the merits of a particular case, but could we dispense with the fiction that judges don’t have, or aren’t allow to express opinions on the law?

I’d feel a lot better if he actually answered Feinstein’s questions. She wants to know, and I want to know too.

Challenge to PA Mental Health Prohibition

A lawsuit has been filed in federal court challenging Pennsylvania’s statute that strips anyone committed under Section 302 of Pennsylvania’s Mental Health Procedures Act (MHPA) from possessing a firearm.

In this media environment, where insisting on due process to strip fundamental rights gets spun as, “You want crazy people have guns!,” it’s prudent to cover a bit of background.

Pennsylvania’s Mental Health Procedures Act has three types of commitments. The first is the typical involuntary commitment, under Section 303 and 304 of the MHPA. There is some due process involved to commit someone under Section 303 and more under 304. For 303, for instance, the medical professionals have to petition the Court of Common Pleas and make their case before a judge. There is a right to representation by counsel. Section 303 and 304 commitments are not challenged in this case.

But Pennsylvania also has an observational commitment as well, under Section 302. In the vernacular, you will hear this referred to as a “302 Commitment.” For Section 302 commitments there is no due process involved whatsoever. All you need to earn a 302 commitment is a ride from your girlfriend, wife, mom, or friendly local police officer to a the hospital, and for a physician to sign off. Often times people are not even aware they’ve been committed.

The parties here are both John Does. Both, other than their 302 history, are eligible to possess firearms under federal and state law.

John Doe I was bullied at school, lost his girlfriend, got depressed, and was taken to the hospital at 16 by his concerned mother, held for a few hours and quickly released. He did not know he was a prohibited person until later as an adult he tried to purchase a firearm and was denied. The hospital had held him under Section 302.

John Doe II was taken to the hospital by a friend because he was intoxicated and belligerent. He was kept under Section 302 involuntarily until he sobered up and was released. He has since gone through alcohol rehabilitation and now lives a clean life. John Doe II was also not aware he had actually been held under Section 302 until he tried to purchase a firearm.

The plaintiffs are represented by Jonathan Goldstein of McNelly and Goldstein. Jonathan is an experienced attorney in firearms law.

As mentioned in the case, Pennsylvania law does not require that the examining physician have any specific mental health training, only that they are licensed to practice medicine in Pennsylvania. There is no due process whatsoever, as the suit notes:

An individual is not provided the most basic due process protections before being involuntarily committed under the Temporary Emergency Commitment Statute. He receives no pre-deprivation notice of the potential consequences of the hearing; he receives no right to review by a neutral arbiter he receives no opportunity to make an oral presentation; he receives no means of presenting evidence; he receives no opportunity to cross-examine witnesses and respond to evidence; he receives no right to counsel; and he receives no pre-commitment review by a court or a decision based upon a written record.

All it takes is a ride to the hospital and a doctor to sign off. That’s it.

Under the Fourteenth Amendment, government must provide adequate due process procedures before divesting citizens of fundamental rights. Logan v. Zimmerman Brush Co, 455 U.S. 422, 432-33 (1982); Vitek v. Jones, 445 U.S. 480, 495-96 (1980); Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421 (3rd Cir. 2000).

Seems like it should be a solid case, but these are the federal courts we’re dealing with. The same federal courts have largely said that the Second Amendment is a second class right, not worthy of the same protections, often not even close to the same protections, as other rights. But I think there’s some hope here.

If we look at the last en-banc decision on guns out of the 3rd Circuit, the Binderup case, it was heard before Judges McKee (Clinton), Smith (G.W.), Ambro (Clinton), Fischer (G.W.), Chagares (G.W.), Jordan (G.W.), Hardiman (G.W.), Greenway (Obama), Vanaskie (Obama), and Schwartz (Obama), Fuentes (Clinton).

Fischer (G.W.) is up for replacement. But so are Julio Fuentes’ (Clinton) and Marjorie Rendell’s (Clinton) seats. Binderup did pretty well on a more heavily Dem appointed panel. If Trump can replace the three vacancies with solid judges we may have a decent chance with this case.

It’s Important to Understand Just How Hostile The Courts Are

I see it all the time: people who believe the Second Amendment is an obvious, self-enforcing unmovable rock of American law. If you spend any time talking to gun owners, you will run into this. The basic idea that judges could simply interpret it out of the constitution is such an anathema to many people like this, they will often refuse to accept that it could happen.

In that vein, the 4th Circuit sitting en banc, in a 10-4 ruling deciding the fate of Maryland “assault weapons ban” have held that weapons that are “most useful in military service” are simply categorically unprotected. Because almost all modern firearms have a military pedigree, this interpretation would allow nearly any firearm to be banned.

The ruling was 10-4. Just let that sink in. That’s not even close. We have had to convince four additional judges to prevail here. A lot of people have done analysis of the ruling already, like Charles C.W. Cooke and John Richardson. What I want to do is look at a breakdown of the judges:


  • Judge King wrote the majority opinion, and was appointed by President Clinton.
  • Chief Judge Roger Gregory joined the opinion. He was recess appointed by Bill Clinton, but George W. Bush put him on the bench permanently.
  • Judge Harvey Wilkinson wrote a concurring opinion. He will never sit on the Supreme Court so long as there’s any life left in the National Rifle Association. He is a “conservative” judge, but one who hates gun rights. He was appointed by President Reagan.
  • Judge Motz was appointed by President Clinton.
  • Barbara Milano Keenan was appointed by President Obama.
  • James A. Wynn was appointed by President Obama. He joined Judge Wilkinson’s opinion.
  • Henry Franklin Floyd was appointed by President Obama.
  • Stephanie Thacker was appointed by President Obama
  • Pamela Harris was appointed by President Obama

Joined in Part

  • Albert Diaz was appointed by President Obama. He only joined the 2nd Amendment and 14th Amendment portions of the decision.


  • William Byrd Traxler was appointed by President Clinton, and wrote the dissenting opinion.
  • Paul Niemeyer was appointed by President George H.W. Bush
  • Dennis Shedd was appointed by President George W. Bush
  • G. Steven Agee was appointed by President George W. Bush

Boy I sure am glad we taught the GOPe and those assholes McCain and Romney a lesson they won’t ever forget! Even if George W Bush and Reagan hadn’t flubbed a few nominations, we still would have lost because the 4th circuit Court of Appeals is absolutely stacked to the gills with Obama and Clinton nominees. You know the old adage that only the Republicans get court picks wrong?

Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

In addition, the majority holds that even if it is wrong when it says that the Second Amendment does not cover these commonplace rifles, Maryland can still lawfully forbid their purchase, even for self defense in one’s home-the core Second Amendment right. My friends do not believe this ruling impairs the rights citizens have under the Constitution to any significant degree. In my view, the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected. I recognize that after such a judicial review, the result could be that the Maryland law is constitutional. I make no predictions on that issue. I simply say that we are obligated by Supreme Court precedent and our own to treat incursions into our Second Amendment rights the same as we would restrictions on any other right guaranteed us by our Constitution.

Therefore I respectfully dissent.

Written by a Clinton Appointee. Sometimes they don’t get what they want out of a judge either.

Trump’s Pick to Replace Scalia

It’s Neil Gorsuch. You can check out his profile on SCOTUSBlog here. As John Richardson noted earlier today, he’s not written any opinions on the Second Amendment, but he’s in the same mold as Scalia, except for not being very fond of Chevron Deference, which is fine by me. We don’t know exactly where he stands on the Second Amendment, but given his overall judicial philosophy, I’d find it doubtful he’d be against us. That will need to come out in the hearings.

Speaking of the hearings, I fully expect this to go nuclear, meaning the Republicans will have to eliminate the filibuster for Supreme Court nominees the same as they were eliminated for lower court nominees by the Dems. I think they should do it, because they can be absolutely assured the Dems will do it if they control the Senate again in the future. They pretty much said they would. Don’t give GOP lawmakers room to be fools and unilaterally disarm.

It’s important to remember, Scalia was the strongest justice on the Court for the Second Amendment. Replacing him with someone just as solid is just not going backwards. I would have preferred someone with a record on the Second Amendment. We never had records on Roberts or Alito, but they both voted with us when it counted. Alito and Thomas are strong on this issue. Either Roberts or Kennedy, or both, are softer supporters. We need to get one more vote on there before we’ll be moving ahead.

UPDATE: NRA is endorsing the choice out of the gate. My guess is they have talked to him, and the speed of the release means they knew about it before it was announced.

Back in the Lawsuit Business

Cases are starting to be filed and hopefully moved again, including this one in Massachusetts. I don’t want to say I’m wary, but I am. Replacing Scalia with someone solid on the Second Amendment doesn’t get us anywhere; it prevents us from sliding backwards. Trump’s leading candidate for replacing Scalia is Neil Gorsuch from the 10th Circuit Court of Appeals.

We did litigate the Colorado magazine limitations in the 10th Circuit. The District Court upheld the ban, but that ruling was thrown out by the Circuit Court because they argued none of the plaintiffs had standing to sue. Judge Gorsuch didn’t have anything to do with that case, so the best we can do is the quote from SCOTUSBlog link above:

Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.

I think more will have to come out in the confirmation hearing, but his position on that case makes him promising. We will have to replace one of the liberals to move forward. Otherwise I’m afraid we’re just going to create more bad precedent in the circuit courts that the Supreme Court will leave in place when they refuse to hear the case.

The Constitutional Authority for National Reciprocity

I’ve run into a few threads over the weekend discussing National Reciprocity, and the power Congress is relying on to pass it. There seem to be a number of misconceptions.

First, Congress is not required to state what power its authority to pass a bill falls under, and so often bills do not discuss that. The argument for whether a bill falls outside of Congress’ enumerated powers is an argument for the courtroom. Previous National Reciprocity Bills have had statements speaking to Congress’ power to pass it, but this latest bill, H.B. 38, does not. It is probably best that the bill does not discuss that. National Reciprocity relies on three powers of, with some arguably weaker than others. I will discuss them from the strongest to the weakest (in my opinion, reasonable people can differ):

Commerce Clause: Much of our federal gun control law rests on Congress’ power to regulate interstate commerce. That’s why in much of federal gun control law you see “in or affecting interstate or foreign commerce, ” and why you’ll also find that type of language in H.B. 38. Granted, I strongly believe the Courts have interpreted this power way too broadly, but if we can prosecute felons for possessing firearms because that firearm was once transported in Interstate or Foreign Commerce, it would be interesting to see the Courts’ reasoning on why it can’t apply to firearms carried by civilians. That’s why I believe this is probably the strongest argument for the bill, even if I don’t personally like it. The apple cart that would be upset by the Courts rejecting what is sometimes called the “Herpes Theory” of the Commerce Clause is big and consequential enough I don’t think the federal courts would want to risk it.

14th Amendment: A lot of people have argued that the 2nd Amendment trumps the 10th Amendment. This is true, but only because the 14th Amendment made it so. The 14th Amendment prevents states from interfering with the civil rights of Americans, and also gives Congress the power to enforce that amendment via legislation. This is the power I’d like to be the most solid, but we have a big complication with City of Bourne v. Flores, which argued Congress could not extend the meaning of a right beyond what the Courts have recognized. I would argue Heller and McDonald both acknowledged a right to carry defensive arms, so in this case, Congress is not overstepping its bounds. Additionally, there is a Right to Travel under the 14th Amendment that is recognized by the Courts, and which provides us with additional structure in this area. Finally, National Reciprocity is something more suitable for Congress’ powers than the courts. The courts can strike down laws, but the creation of a reciprocity regime is something only Congress can do appropriately.

Full Faith and Credit: A lot of people mistakenly believe driver’s licenses are recognized in every state because of this clause. That is not the case. Driver’s licenses are recognized in every state via an interstate compact, or by direct state recognition. It is purely a function of state law. What the Full Faith and Credit Clause means is not terribly well defined, and I believe we’d have trouble with the “public policy” exception the Supreme Court laid out in Pacific Employers Insurance v. Industrial Accident. I think this is the weakest power of the three, but Congress has never done anything quite like National Reciprocity, so it’s still there.

If you want to read a more in-depth analysis of what I’ve discussed here, I’d recommend Clayton Cramer’s new paper: “Congressional Authority to Pass Concealed Carry Reciprocity Legislation” Please keep these arguments in mind when you run into people spouting “states rights” arguments against National Reciprocity. You’ll find a lot of conservatives doing this if you look. Congress has had the power and used the power to protect the civil rights of Americans since the end of the Civil War. It should not be shy about using those powers to protect the Right to Keep and Bear Arms any more than it other civil rights which have been long protected under federal law.

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