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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.

Bad News for the Second Amendment from SCOTUS

All eyes have been on the Supreme Court to see what they would do in the case of Jackson v. City and County of San Francisco, which challenged San Franscisco’s ordinance mandating that firearms kept in the home be locked and rendered essentially unready for self-defense. The Court had the option of summarily reversing the decision, but it chose not to. Additionally, Justices Scalia and Thomas filed a dissent to the denial of cert:



The decision of the Court of Appeals is in serious tension with Heller. We explained in Heller that the Second Amendment codified a right “‘inherited from our English ancestors,’” a key component of which is the right to keep and bear arms for the lawful purpose of self-defense. 554 U. S., at 599. We therefore rejected as inconsistent with the Second Amendment a ban on possession of handguns in the home because “handguns are the most popular weapon chosen by Americans for self-defense in the home” and because a trigger-lock requirement prevented resi- dents from rendering their firearms “operable for the purpose of immediate self-defense.” Id., at 629, 635. San Francisco’s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns “operable for the purpose of im- mediate self-defense” when not carried on their person. The law thus burdens their right to self-defense at the times they are most vulnerable—when they are sleeping, bathing, changing clothes, or otherwise indisposed. There is consequently no question that San Francisco’s law burdens the core of the Second Amendment right.

It only takes four justices to agree to hear a case, and it seems that Scalia and Thomas certainly wanted to take this one. So which of two of the Heller Five are just fine with letting the lower courts gut the Heller decision, and why? I’m fairly certain that Justice Alito is pretty solid on the Second Amendment, however for whatever reason he may not have wanted to join this dissent. Perhaps Chief Justice Roberts and Justice Kennedy weren’t willing to destroy the Second Amendment, but for whatever reason are not particularly keen to revisit the issue, even in the face of the lower courts thumbing their nose at Heller and McDonald.

This is a lot of tea leaf reading, but I don’t think this says good things about the Second Amendment and SCOTUS. We have to put a Republican in the White House in 2016. If the Courts can’t agree to take a case like Jackson, which would really just be reaffirming Heller, the Second Amendment is effectively dead unless we can get Scalia and Thomas the extra solid votes they need.

Due Process Issues with Gun Violence Restraining Orders

Bill of Rights

The National Journal has an article out touting our opponents latest tool in their quest to find issues they can use to increase the legal risk of gun ownership:

Jared Loughner’s parents knew he could be dangerous. In the months before his shooting rampage in a Tucson parking lot, they took away his shotgun. They disabled his car at night. They advised him to seek mental health care. But none of those actions stopped Loughner from purchasing a handgun and taking a taxicab to an event where Rep. Gabrielle Giffords was speaking. He opened fire, killing six people and injuring 13 others, including Giffords.

“The parents identified this risk, and—my goodness—they were taking some really bold steps to try to prevent what happened, but it wasn’t enough,” said Shannon Frattaroli, a gun violence prevention researcher at Johns Hopkins University. “They didn’t have enough tools at their disposal to prevent that new purchase.”

Read the whole thing. The root problem here is that we make it next to impossible to commit someone who’s exhibiting signs of being dangerously mentally ill. I wouldn’t trust Loughner with matches and gasoline either. This again is treating the Second Amendment as if it’s just some kind of second-class right, not worthy of the protections afforded to other rights.

Adam Winkler, a constitutional law professor and Second Amendment expert at University of California (Los Angeles), and said the NRA’s concerns are largely unfounded. “At the end of the day it’s not a thorny issue,” Winkler said. “It’s not a Second Amendment violation to take away the guns of someone who is dangerous.”

“Although [GVROs] are often portrayed as allowing family members or jilted lovers to take someone’s gun away, these restraining orders must be issued by a judge,” he said. “A judge is not going to issue an order unless he has reason to believe that a person is dangerous.”

This seems naive to me. Given that we know many judges are hostile and dismissive of Second Amendment rights, I predict there will be a large number of judges who will act as a rubber stamp for these GVROs. Keep in mind, these can be issued without the accused having the opportunity to appear or be represented counsel in an adversarial hearing. This is not due process, which should be required to deny someone a fundamental right.

I get that California enacted stiff penalties for false accusers, but the penalties mean nothing. I don’t believe the vast majority of false accusers will ever be charged. It’ll be a case of “he said, she said,” and prosecutors will understandably be reluctant to take the cases to trial on flimsy evidence. Let us not also discount the general hostility big city prosecutors have toward gun ownership in the first place, who might not be too sympathetic to a person petitioning them to charge a person who made a false accusation that got his or her guns taken away.

GVROs will be abused. It’s naive to think otherwise. There are people out there who seriously believe that gun ownership is a sign of mental illness in and of itself, and sometimes you may have those people in your family. It should only be a matter of time before gun rights attorneys can find someone screwed by this law who will make a good plaintiff, and then we’ll see whether the 9th circuit and the Supreme Court take due process seriously when it comes to the Second Amendment.

But No One Wants to Ban Guns!

You could have fooled me:

There are reports that the former Curves storefront at 2105 N. Pollard Street, in a small strip mall along Lee Highway, will be occupied by a gun shop. We, the citizens of Arlington County, oppose a gun shop at this location. We are alarmed that the shop is within 2 blocks of an Arlington County Public School that houses the HB Woodlawn Program and Stratford Program. Further, two elementary schools (Taylor and Arlington Science Focus), are only blocks away. Four additional schools are within 5 miles: Washington-Lee High School, St. Agnes, Key Elementary, and Glebe Elementary.

This is not a new idea. We sounded the alarm back in 2008 that Barack Obama was a proponent of the five mile rule for gun shops when he was an Illinois Senator. The idea has surfaced here and there ever since. Certainly this standard would ban gun shops most everywhere, except for very rural areas, but that’s the idea. It’s a backdoor way of banning guns and crushing the Second Amendment. If they came out and said they wanted to ban all guns, they’d lose all public support. So they come out and say something that sounds not quite so radical to the average low-information voters, and presto! You have a gun ban without making it sound like you want to ban guns.

I think the Second Amendment, properly interpreted, would bar any law that discriminated against gun dealers in zoning matters. It would not bar general zoning rules, such as those which distinguish between residential and commercial properties, but it would bar laws and ordinances clearly meant to frustrate the operation of businesses, rather than serving a legitimate government interest.

Much like the government must be neutral on matters of speech, so to must it be neutral on matters of gun ownership, including the right to sell firearms. The Second Amendment has to mean there is a right to sell firearms, albeit one subject to regulation according to Heller. You can find a lot of weak and lazy thinking about this on the other side in this area, such as this bit of commentary about a Minnesota car dealer that tried to have a gun giveaway with the purchase of a new car:

The dealer made claims about this being about the second amendment but the last time I checked there was nothing about a right to give guns away in a business deal. He also said callers were mean. I wonder if he means that the callers were insistent and emphatic in their opposition to the business deal.

When we’re “insistent and emphatic,” we’re “bullies.” When they do it, it’s fine. But let us not dwell on their rank hypocrisy, and get to the meat. In this case, since it was private pressure on the dealer that caused him to cancel the giveaway, the Second Amendment doesn’t apply here. The Bill of Rights only constrains government action, and not private action.

But if the Second Amendment is to be treated as other fundamental rights are treated, there is a presumption that the government needs to have a compelling interest, and the means the government uses to further that interest are the least intrusive method available. That’s strict scrutiny. Even intermediate scrutiny, if applied correctly by the courts (which it has not been in most cases) requires there to be an “important” government interest, where the law, ordinance, or regulation is “substantially related” to the promotion of that interest.

Now, let’s take a look at the case of a dealer giving away a gun through a federally licensed dealer. First, what government interest can we identify? “Reducing the number of guns on the street” is not an interest in light of gun ownership being a right. Keeping guns out of the hands of violent criminals is probably a compelling government interest, but since the person receiving it will have to undergo a federally mandated background check, that governmental interest is already at work here. They fail completely at the governmental interest part, whether you apply strict or intermediate scrutiny. The government can have no legitimate interest in reducing gun ownership levels, even if one were to accept the argument that reducing gun ownership in general reduces their availability to violent criminals. That would not be “narrowly tailored” or “substantially related.”

What about the ridiculous “not near a school rule?” Heller suggests that the government has a compelling interest in keeping firearms out of schools, since they are among the restrictions the Court said were “presumptively lawful.” Keeping guns out of the hands of children might be another compelling interest. But again, federally licensed dealers are prohibited from selling firearms to children. States can presumptively ban guns in schools, according to Heller, but would a ban on gun shops within 5 miles or even 1000 feet of a school be “narrowly tailored?” What interest would it be “substantially related” to? Again, by either strict or intermediate scrutiny, if applied correctly, these regulations do not pass constitutional muster. Such a law, if applied in the First Amendment context, would clearly be ruled “over broad” by the courts.

You will undoubtedly see more arguments along these lines, and it’s important to know how to take them apart and refute them. Make the other side look the uneducated fools. I don’t honestly blame them for summarily dismissing how we treat rights in this country, because their only hope left is to marginalize the Second Amendment, and somehow make it an outlying right. We should perhaps feel lucky they are so very bad at making those arguments.

UPDATE: See this map showing how five mile rule would work in Houston. How is this not a gun ban? “You can still own them. You just can’t really buy them, except for that one shop out in the middle of the desert that’s only open in the evenings. Only paranoid rednecks think the gun violence prevention movement is really a gun ban movement in disguise.”

Civil Rights Victory in DC Circuit

The Judge in the D.C. District Court has smacked down at least one aspect of DC’s attempt at evading the Second Amendment in Wrenn v. D.C. The Court in this case did not buy D.C.’s assertion that the good cause requirement was related to the city’s interest in preventing crime:

While, as stated, Defendants argue that the District of Columbia’s “good reason”/”proper reason” requirement relates reasonably to its interest in preventing crime and protecting public safety, they have not established that relationship.

The fact that an individual may be able to demonstrate a greater need for self-protection, and therefore meets the “good reason”/”proper reason” requirement, does not indicate, in any way, whether that person is less likely to misuse handguns or may be less dangerous.

The Court also rejected D.C.’s assertion that they had a legitimate interest in reducing the number of handguns in public places:

Furthermore, even if the Court were to accept the proposition that handguns are used disproportionately in the commission of violent crimes, how is that use related to whether or not a person has a greater need for self-protection? Moreover, isn’t it possible that even persons who cannot manifest a present need for self-protection are just as likely to be victims of a violent crime. Simply put, the District of Columbia’s “good reason”/”proper reason” requirement will neither make  it less likely that those who meet this requirement will present a risk to other members of the public or commit violent crimes than those who cannot meet this requirement. Therefore, after reviewing the record in this case, the Court finds that Defendants have failed to demonstrate that there is any relationship, let alone a tight fit, between reducing the risk to other members of the public and/or violent crime and the District of Columbia’s “good reason”/”proper reason” requirement.

This is very good news. SAF only chose to file for a preliminary injunction on the “good cause” requirement, and they got it. D.C. is now not permitted to enforce this requirement. Good show!

Court Victory in Rhode Island

Clayton Cramer is reporting that the Rhode Island Supreme Court has struck down the state’s may-issue permitting regime. This is a short opinion, and not one based on the Second Amendment, but rather the right to keep and bear arms provision of the Rhode Island Constitution, and previous case law in that state. It does not squash the “good cause” requirement under Rhode Island law entirely, but the court would seem to take a very liberal reading of it. The Court quashes the Chief of Police’s denial, and orders him to reconsider the case, offering the plaintiff the right to come back into court if he is unsatisfied with the final decision. The Court doesn’t come out and say it directly, but it would appear he’ll get his permit.

Knife Rights a New Front in the Second Amendment

Andrew Branca notes that Freddy Grey’s knife was, in fact, illegal. We need to repeal all knife laws. Laws against sharp pointy things are even more ridiculous than gun control. Even Bloomberg News is recognizing that Knife Rights have become the new gun rights. Of course, I wouldn’t agree gun rights have gotten old, but the Second Amendment isn’t just about firearms, it should be about all personal weapons, armor, and other accouterments.

Against my better judgement, I became involved in a comment discussion on this article that appeared in Raw, accusing the NRA of not caring about the rights of African-Americans, because they weren’t standing up for the Second Amendment rights of Freddy Grey. I viewed my goal in this to dispel myths, rather than sling insults back at people. I do not speak for NRA, but in my opinion, when defending the organization online, I don’t think there’s anything wrong with using “we” if you’re a member. It is, at the end of the day, your organization, and it helps people understand this isn’t just about some nefarious gun lobby:

Myth Number 1: NRA doesn’t care about the rights of someone like Freddy Grey. For one, even though NRA is not directly involved in knife rights, is a lot of the same people, and there’s cooperation. We are working to try to repeal and preempt the kinds of laws that got Freddy Grey into the situation that got him killed.

Myth Number 2: NRA doesn’t care about the rights of blacks. Gun rights is only for white people. No, we stand for the right of all peaceable people to keep and bear arms for self-protection. Gun control is actually far more burdensome for poor blacks to exercise their rights than it is for white people who can more often afford license fees, training classes, and to live in communities they aren’t likely to get harassed by the cops.

Myth Number 3: NRA is just the sales arm of the gun industry. It’s amazing how many people have a genuine and sincere belief that this is actually true. I believe it’s a deliberate self-deception at times, because if you’re for restricting the freedoms of millions of Americans, some of whom might be a lot like you, that kind of makes you a real killjoy. But if you’re fighting against some nefarious imagined “gun industry,” well, that’s just sticking it to the corporate man, and you one can think oneself a hero of the common man.

These were the common myths. Of course you had plenty of crap like this:

Niger [Innis]? he’s another self hating black man, who hates his race. Tell me about Wayne LaPiere’s lack of racism. Tell me about Pedophile Nugent’s lack of racism. When the NRA leaders stop making speeches about rebelling against the government, and attacking blacks and Mexicans, I’ll believe there;s no racism in the NRA. until then, the NRA is nothing but an organization dedicated to scaring ignorant white people into buying guns, out of fear of a black president and brown and black people.

He’s not speaking about the actual National Rifle Association, but instead a caricature of the organization constructed partly by the writer’s vivid imagination, partly by agitators who work very hard to divide Americans against one another, and partly by Ted Nugent, who is the former type’s wet dream, since he self-caricatures.

As an organization, NRA needs a lot more people like Sheriff Clark speaking for the organization, and a lot fewer people like Ted Nugent. Knife Rights, for its part, responded very well, I thought, to the current events happening in Baltimore.

Cody Wilson Sues State Department

Two years ago, Defense Distributed was preempted by the state Department from posting plans for the Liberator Pistol online, arguing they were a controlled munition. Many of us in the tech business got a strong case of deja vu, remembering a similar government assertion in the 1990s that didn’t end up going all that well for the government.

In that grand tradition, Cody Wilson of Defense distributed has filed suit against the State Department, arguing First Amendment grounds. Lest anyone think this is some kind of fringe suit, it has the backing of SAF, and Alan Gura is among the attorneys on the case.

The New York Times describes this as “trailblazing,” but really this is just a continuation of the argument that happened over encryption in the 1990s. I predict this will not go well for the government. It shouldn’t go well for the government.

Civil Rights Defeat in the 7th Circuit

The 7th Circuit Court of Appeals has been more pro-gun than most federal circuits, but asking it to strike down an assault weapons ban was apparently a bridge too far. Easterbrook’s opinion essentially says because assault weapons are relatively recent technology, they can be circumscribed:

But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law‐abiding citizens retain adequate means of self‐defense.

Really? Would Easterbrook be OK with importing this kind of reasoning into First Amendment jurisprudence? The Founders could not have possibly envisioned the Internet, so should it be afforded no protection whatsoever? Can states experiment with publication bans? The Food Babe spreads lies and dangerous information, can we just take her offline?

Easterbrook argues that the banned weapons may be useful for self-defense, but there are plenty of substitutes that citizens can use. DC unsuccessfully made the same arguing to try to save it’s handgun ban. How is this not ignoring Heller? This is probably the most jaw dropping part of the opinion for me. Easterbrook argues that while it might be true that these laws are largely useless, if it makes people feel safe, that’s a compelling enough reason to justify government restriction. Again, do we feel OK importing this reasoning into other contexts? If an officer feels like there’s some pot plants in that house, is that ground for breaking down the door? Do we need to suppress free speech because it makes some precious snowflakes in college “feel unsafe” these days?

Judge Manion wrote a dissenting opinion, essentially arguing that the majority was gutting the Second Amendment, and ignoring Heller. A favorite line of mine:

Here, the court comes not to bury Miller but to exhume it. To that end, it surveys the landscape of firearm regulations as if Miller were still the controlling authority and Heller were a mere gloss on it. The court’s reading culminates in a novel test: whether the weapons in question were “common at the time of ratification” or have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” and “whether law-abiding citizens retain adequate means of self- defense.” Ante at 7–8.

The problem is Heller expressly disclaimed two of the three aspects of this test; and it did so not as a matter of simple housekeeping, but as an immediate consequence of its central holding. It held as “bordering on the frivolous” arguments that recognized a right to bear only those arms in existence at the time of ratification. Heller, 554 U.S. at 582 (“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.”). Likewise, it expressly overruled any reading of the Second Amendment that conditioned the rights to keep and bear arms on one’s association with a militia. Id. at 612. (“It is not possible to read this as discussing anything other than an individual right unconnected to militia service.”). For this reason, there is no way to square this court’s holding with the clear precedents of Heller and McDonald.

I certainly hope this case gets appealed. The majority opinion seems exceptionally weak here, even compared to some of the “intermediate scrutiny two-step” opinion I’ve read.

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