Currently Browsing: 2nd Amendment

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.

Justice Thomas Asks Question for First Time in 10 Years

And it’s a gun related case. You can see the transcript here.

JUSTICE THOMAS: Ms. Eisenstein, one question.

Can you give me ­­ — this is a misdemeanor violation. It suspends a constitutional right. Can you  give me another area where a misdemeanor violation suspends a constitutional right?


MS. EISENSTEIN: Your Honor, I ­­ I’m thinking about that, but I think that the — the question is not — as I understand Your Honor’s question, the culpability necessarily of the act or in terms of the offense.

JUSTICE THOMAS: Well, I’m — I’m looking at the ­­ you’re saying that recklessness is sufficient to trigger a violation — misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right.

Emphasis mine. If you’re in a Super Tuesday state, please consider the future of the Second Amendment is riding on this election. I don’t care whether you pick Cruz or Rubio, but please God, we can’t have a nominee that doesn’t even understand how the courts work picking Scalia’s and probably three other replacements. Anybody but Trump!

Maryland Appeals Assault Weapons Case to En Banc Court

Maryland (or Murrlnd, as it is known around here) has decided to appeal Kolbe v. Maryland to the entire panel of 4th Circuit judges. As NRA’s Annual Firearms Law Seminar notes, the 4th is pretty stingy with En Banc review, and this case did not overturn the ban, merely vacated the lower court ruling and sent it back for rehearing. So there’s a good possibility the 4th will deny the appeal. Let us hope. We need this case to delay, delay, delay, as long as we can delay it. We need to buy time to hope for favorable changes on The Court.

With Scalia’s Passing, What Now?

Antonin Scalia

I’m not going to sugar coat it, Scalia’s passing likely marks the end of the Second Amendment if the Mitch McConnell and Senate Republicans don’t grow a pair. Just because Obama appoints a replacements doesn’t mean the GOP Senate has to confirm him or her. Once a replacement is named, I would make crystal clear to your Senator that you fully expect them to vote against any nominee who does not profess unwavering support for Heller & McDonald and the Second Amendment.

Oppose, Block, Filibuster. Run out the clock. Obama has had two appointments, and that’s enough for any President.

One of the Heller Five Gone

Word is just breaking that Justice Antonin Scalia was found dead this morning in Texas. Thoughts and prayers go to his family.

Politically speaking, this really shakes up the Supreme Court on the issue of the right to keep and bear arms. In 2012, Sebastian blogged about this potential in terms of the odds that all Heller Five make it to the end of 2016. The numbers weren’t good, and they proved to be accurate.

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.

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