Jun 26, 2014
Given what I had heard about the trial, and the fact that the judge seemed to be a gun owner, I was optimistic that maybe this case wouldn’t end up being the typical District Court loss, but that would appear not to be the case. Grab your partner, gather round, and dance the intermediate scrutiny two-step on more time! Now granted, in the realm of Second Amendment opinions, I’ve read worse. I’ve actually read far worse, unfortunately. But I’m tired of this right being treated like the crazy uncle in the attic of American rights by judges. You don’t get to do that. The footnotes in this case are particularly tough to stomach:
The M-16 rifle mentioned by the Court is a military version of the AR-15 rifle, a rifle that several witnesses in this case testified that they possess for their own self-defense purposes. If, as Heller implies, the M-16 rifle can legally be prohibited without violating the Second Amendment, it seems to follow that other weapons such as the AR-15 may also be prohibited, notwithstanding the fact that some individuals believe that such weapon is important, or even essential, to their self-defense.
The M16 is a machine gun, Judge. The AR-15 is not. The AR-15 functions entirely differently. I don’t think that can just be glossed over so casually. Would it be legal to ban any firearm that has a military full-auto equivalent? Even the Browning BAR hunting rifle is based on a full-auto, military design. There’s a military version of the Glock pistol, and the Beretta pistol. This is poor reasoning.
After that, there’s this footnote about the paradox of better-trained users needing less rounds in a magazine:
There is a curious paradox here: the more competent the defensive firearm user, the more likely he or she is to hit her target with fewer shots, and thus, the less likely that user is to need a large-capacity magazine for defensive purposes. By contrast, the less competent or confident the user, the greater the number of rounds the user perceives he or she needs. One wonders how these perceptions are affected by exposure to military grade weaponry in news and entertainment.
What she doesn’t understand is that the dirty little secret is a big reason that cops almost universally carry large caps these days is because they need them, often due to poor firearms training. There is honestly no argument here that applies to civilians is not equally or more applicable to cops. Courts should not overlook police use in these cases. If magazines holding more than X rounds are routinely issued to officers, then they should be protected arms for civilians as well. End of analysis. We should not require civilian firearms owners and carriers to be trained gun ninjas, while we allow police officers to roam the streets with firearms, many of whom get no more practice in than their yearly qualifications.
The judge read the Americans with Disabilities Act narrowly in considering the ADA claims in the suit, arguing that because the laws didn’t create any particular government service that discriminated against the disabled, the ADA was no obstacle to the law. The claim seems to be that the ADA doesn’t apply to laws that discriminate against the disabled, only services. I don’t know enough about the ADA to comment on this.
This judge was a George W. Bush appointee. It was apparent during the trial she knew something about guns, and there seem to be evidence to believe she may actually own one. But this shows how utterly hostile the ruling class is to civilians being well-armed, and at least as well-armed as the police. I’m sure this will be appealed, but I am not optimistic. I’m afraid the only way Coloradans are getting rid of these new laws is to repeal them. The courts cannot be counted on to give meaningful relief for infringements on this fundamental right. The refusal of the Supreme Court to hear any further cases on the matter will only embolden lower courts in their efforts to marginalize the right. The Second Amendment is to remain the crazy uncle in the attic of the Bill of Rights for the foreseeable future.
As always, I encourage everyone to read the opinion. It is important for every Americans to understand how much judges do not care for this right, and do not care to treat it seriously. The only way we win is by punishing anti-gun politicians and electing pro-gun politicians. Everything else is window dressing.
Jun 25, 2014
Jeff Soyer notes an article out of Connecticut that Gov. Dannel Malloy’s Sandy Hook Advisory Commission plans to suggest mental health “suitability screenings” for gun owners and sellers in their state.
Later in the article, they note that the commission that has been meeting since January 2013 still doesn’t have any of the medical records for Adam Lanza. If a commission ordered by the state governor can’t get records together in 18 months, how long will they make “applicants” to own or sell guns wait while they attempt to gather records?
The final report with formal recommendations is due this summer, so I’m sure that every gun control dream will be listed.
Jun 23, 2014
Dave Hardy notes was done with the expectation there would be a Bill of Rights, which they hoped would contain:
XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.
Now the other side, particularly Professor Adam Winkler, would be fond of jumping on the last part as evidence that our founders supported gun control. I don’t think that has ever really been in question, but let’s not pretend that there was, in colonial times and in the Early Republic, anything resembling what modern gun control advocates propose.
The latest book out on this subject, which I mentioned here and am in the process of reading, relies upon the fact that in the debates, the founders were singularly unconcerned with arguing the self-defense angle to keeping and bearing arms. This is mostly true, but they did talk about it, and some states even have it enshrined in their RKBA provisions. You can certainly make a compelling narrative that the founders were only concerned with the distribution of military power, and not self-defense, but it requires overlooking some very glaring evidence that the right was indeed meant to protect private self-defense, as well as the militia as an institution.
Jun 4, 2014
This comes to us via NRA’s Civil Rights Defense Fund:
Believing that the [second] amendment does not authorize an individual’s right to keep and bear arms is wrong. The right to bear arms is an individual right. The military connotation of bearing arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights. The “right” to be a soldier does not make much sense. Life in the military is dangerous and lonely, and a constitutionally protected claim or entitlement to serve in uniform does not have to exist in order for individuals to enlist if they so choose. Moreover, the right to bear arms does not necessarily have a military connotation, because Pennsylvania, whose constitution of 1776 first used the phrase “the right to bear arms,” did not even have a state militia. In Pennsylvania, therefore, the right to bear arms was devoid of military significance. Moreover, such significance need not necessarily be inferred even with respect to states that had militias. Bearing arms could mean having arms. Indeed, Blackstone’s Commentaries spoke expressly of the “right to have arms.” An individual could bear arms without being a soldier or militiaman.
Leonard W. Levy, ORIGINS OF THE BILL OF RIGHTS 134-35 (Yale Univ. Press 1999).
May 15, 2014
Yesterday, San Diego County filed a response with the 9th Circuit Court of appeals to the Motions to Intervene by the California Attorney General, and whether the case was moot. They are fine with the intervention of the State AG, and argue the case is not moot, since they are still sitting on applications awaiting a final decision. You may recall a few weeks ago there was some argument over whether or not Peruta was moot, in which case Richards v. Prieto would be the case to go forward, so this should settle that issue in favor of Peruta not being moot. At this point, I’m not even sure what outcome to hope for anymore, because in one sense, I’d like to give the Supreme Court another bite at the apple, except I’m not sure they’ll take it, so part of me feels we’re better off with this not going en banc.
May 5, 2014
This morning, the Supreme Court denied cert in Drake. This is a little speculation on the case from SCOTUS Blog:
The denial of Drake was without explanation or noted dissents. That does not mean that no one voted for cert; probably that those who wanted to grant, if there were any, were unsure about prevailing on the merits. The list of denial of 2d Amendment outside-the-home cases is lengthening. It is unclear what kind of case on that subject will attract the Court’s attention.
Apr 28, 2014
Today the Supreme Court was releasing its decision on cert petitions, and Drake was high up there on the list of cases to watch. Unfortunately the Court has still not yet decided either way, and we do not have a decision. There are a lot of possibilities at work here, but it would amount to tea leaf reading and rank speculation, so I won’t engage in it. Drake v. Jerejian is the case challenging New Jersey’s restrictive permitting practices. The Court is running out of cases it can take to resolve the circuit split over the right to carry firearms outside the home.
Apr 18, 2014
Today the Supreme Court will be deciding whether or not to grant certiorari in the case of Frake v. Jerijian, challenging New Jersey’s restrictive handgun carry licensing regime:
Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.
The Court could announce as early as Monday what they decided. Obviously this is one to watch, because the Court is running out of cases they could use to decide this issue. It’s not certain yet what the fate of the 9th Circuit cases are going to be yet, and so it is also uncertain whether the Supreme Court will get a stab at those as well.
Apr 16, 2014
Last week a judge of the New York Supreme Court held that the SAFE act was constitutional. This danger hit the news last year when both Schultz and NYSRPA were filing their suits against SAFE. It was run by a pro-se plaintiff who enjoys filing lawsuits for what he views as constitutional violations. These people are the greatest threats to our Second Amendment rights out there; even more than the anti-gunners. Robert Schultz quite possibly just lost for New Yorker’s any substantive right which they can claim against SAFE. The New York Rifle and Pistol Association suit is still in play, but existing bad precedent greatly complicates matters. You can read the opinion here:
The complaint and memoranda submitted by plaintiffs are unclear as to other bases for challenging the SAFE Act. For instance, in the complaint plaintiffs allege that the Safe Act arguably infringes on rights protected by the Second Amendment of the United States Constitution and Civil Rights Law §4. Plaintiffs also assert that the statute arguably infringes on rights guaranteed by New York Constitution ArticleXII. However, Legislative enactments enjoy a strong presumption of constitutionality and while the presumption is rebuttable any invalidity must be demonstrated beyond a reasonable doubt (Matter of McGee v Korman, 70 NY2d 225,231 ). Here, plaintiffs have failed to demonstrate in what manner the SAFE Act infringes upon their asserted rights.
In other words, he failed to make his case. These things are really left up to professionals and experts, and not rank amateurs out to make a name for themselves or to stroke their own egos. I’m normally very amiable towards amateurs, but this the practice of law is not one of those cases.
Apr 15, 2014
Appearing here, with articles by Dave Kopel, Alan Gura, Joseph Blocher, and Darrell A.H. Miller. “Comment on Peruta and Other Recent Cases.”
I’ll have a news link post a little later, but I wanted to put this one out there because it’s a lot of good stuff. I haven’t read it yet, and probably won’t have time for a bit.