Shall Not Be Questioned » 2nd Amendment

Update in Peterson v. Martinez

Sebastian — Mon, 30 Jan 2012 19:19:51 +0000

Peterson v. Martinez is a case challenging some provisions of Colorado’s concealed handgun licensing laws:

As Denver has an an open carry ban (which it has sued the state to protect this ban under the state constitution’s home rule provisions and won in district court), the combination of this factor and the state’s law against concealed carry without license combined together to deny Peterson his right to carry a functional firearm for personal protection while visiting Denver.

Let me give you a bit of background on this case. First, this is an as applied challenge, meaning that Peterson is not contending that Colorado’s concealed handgun licensing laws are facially unconstitutional, but that they are unconstitutional as applied to him, and his particular circumstances. If Peterson prevails on his challenge, anyone else similarly situated, meaning anyone who is not a resident of Colorado, and does not have a reciprocal license, would be able to assert the same claim. It would, in effect, carve out an exception for everyone, and not just him.

Either way, Peterson lost in District Court, in a decision that can be found here:

As discussed above, I conclude that residents and non-residents are not similarly situated in terms of the state’s ability to obtain information about and monitor the potential licensee’s eligibility for a concealed weapons permit. Because states “must treat like cases alike but may treat unlike cases accordingly,” Vacco v. Quill, 521 U.S. 793, 799 (1997), and this involves unlike cases, Colorado’s different treatment of non-residents does not violate the Equal Protection Clause. See Peruta, 2010 WL 5137137 at *10 (finding residents and non-residents to be situated differently for the purposes of concealed weapons permit in light of state’s substantial interest in monitoring gun licensees).

This disposes of all of Plaintiff’s constitutional challenges to Colorado’s requirement that only residents of the state are eligible to apply for concealed handgun permits.

The case is being reheard in the 10th circuit in March, and the news here is that my understanding is that Amicus Curiae are being given ten minutes of oral arguments, which would include Matthew Bower, representing NRA’s Civil Rights Defense Fund, Alan Gura for SAF, and Jonathan Lowy for the Brady Center. It should be noted that the court is asking for this special session, which strikes me as unusual, so this could be a very interesting case to watch. All parties involved are trying to get more argument time in before the Court of Appeals in this case. This is going to be an interesting case to watch, folks.

Things that Aren’t True

Sebastian — Mon, 30 Jan 2012 18:37:32 +0000

Adam Winkler has become notable in our issue for pissing off both sides, which is a pretty good sign that he’s a moderate on the issue. But some of his assertions I don’t find persuasive, and others can be taken in such a way that they are misleading. Now it’s possible this individual is mis-stating something, but this is just wrong:

So it’s worth remembering: The gun lobby didn’t always lobby for free access to guns (particularly not for guns for African-Americans). And the folks who wrote the Second Amendment were all in favor of a “well-regulated militia” whose members — at that time, the general (white) populace — had to declare, register and present to government agents on a regular basis all of their firearms.

To the best of my knowledge there was never any requirement that people register their firearms with any colonial or early-American government. When turning out for muster, they would be expected to bring their personal arm, which they were required by law to own, and that arm could be inspected to ensure it was in serviceable condition, and that the individual had enough ammunition to comply with the requirements of the act. But it’s not like they punched serial numbers on guns back then. Serial numbers are actually relatively recent phenomena, I believe not in common practice until the 19th century, and even then not uniquely identifying until the mid-2oth century.

So equating the requirements of the various colonial or early American militia laws to the modern conception of universal registration is a bit disingenuous. No one in colonial times was keeping records of the guns owned by your average John Smith militia member. It’s certainly valid to suggest that the founding generation were strong believers in the militia requirements of the day, which compelled able bodied men (and sometimes women) to arm themselves, keep their firearms in serviceable condition, and report periodically for muster and drill. It’s also valid to suggest that many founders, who didn’t view African American as citizens, or even individuals imbued with the same human rights as white folk, understood that many laws at the time disarmed blacks. But I’m not sure how that should inform us about the validity of modern gun control any more than it should inform us about the validity of anti-miscegenation laws. The pretext for many of the laws whic barred non-citizens from firearms ownership are repugnant to modern society, so I’m not sure they ought to inform us as to whether many modern forms of gun control are fine.

Unable to Move On

Sebastian — Thu, 26 Jan 2012 21:39:11 +0000

It’s amazing how many anti-gun people just can’t move on:

Many are smart enough to see through the fog of the National Rifle Association. Many understand that the Second Amendment mentions a “well-regulated militia” because the right to bear arms is only within that context.

It is mentioned only in the Second Amendment in the Bill of Rights. Therefore its mention is purposeful and within this context when guaranteeing the right to keep and bear arms.

Nope, you lost this one. It’s done. Over. There’s no more debate. It’s not the National Rifle Association anymore, it’s the Supreme Court of the United States. There seems to be a concerted effort among our opponents to stick their heads in the sand and pretend they aren’t losing.

Third Circuit Ruling on Housemates of Felons

Sebastian — Thu, 12 Jan 2012 15:40:33 +0000

The Third Circuit Court of Appeals, which encompasses Pennsylvania and New Jersey, has reversed a dismissal of an indictment that a housemate facilitated a felon’s possession of firearms. The courts argument would seem to be that since the charge was facilitating, not her own possession, the case should go to trial to discover the facts in the case. From a strictly legal reasoning point of view, I can understand where the court is coming from. But I’m uncomfortable with the ruling as the effect it will have on the rights of those who live with prohibited persons. Think about a battered spouse who seeks a firearm to protect herself in an abusive relationship with a convicted felon.

In this instance any spouse, domestic partner, or roommate of a prohibited person runs legal risk keeping a gun in the home for self-protection. If the prohibited individual is ruled to have been in possession, the housemate can also be charged. That seems like a poor way to treat someone’s constitutional rights.

I think in this case the court got it wrong. There needs to be evidence that the person purposefully helped aid in the possession of the prohibited person. Otherwise the housemate is deprived of their constitutional right without due process.

I’m Beat

Sebastian — Tue, 10 Jan 2012 03:42:44 +0000

I am just plum out of energy from the weekend. This was one of those events, much like NRA Annual Meeting, where you’d rather stay up and talk to people than go to bed. An early start to the events meant only a few hours of sleep a night. I had to start a new work engagement today, so that added up to not much energy for posting, despite having a lot to say. Let me relay some further impressions.

I hadn’t seen Clayton Cramer in person since Heller. To say he’s a font of knowledge about American History is a serious understatement. The depth of research he’s done on behalf of the issue is remarkable, and he can recall obscure facts on command at a detail rarely achieved.

The other fun fact from the weekend is that Professor Nick Johnson, who is co-author on the new Second Amendment law textbook–the first of its kind–along with Professors Michael O’Shea, Dave Kopel, and George Moscary, is a member of the local shooting club I am an officer for, and lives relatively close to me in Bucks County. Apparently he’s had Professor Moscary as a guest at the club, who commented to me how nice the facilities are.

It’s a small world, folks. My club has its roots in the working class neighborhoods of Levittown, and yet you never know when you might find yourself shooting next to a distinguished professor of law. I’ll be speaking more about Professor Johnson’s law review article later, which attacks some common misconceptions about the civil rights movement’s view of non-violence, which is a challenge to the now prevailing view. It’s really quite fascinating.

2A Scholars: The Next Generation

Sebastian — Mon, 09 Jan 2012 14:16:05 +0000

Anyone who’s aware of the history of the black civil rights movement knows that it was a multi-generational struggle. There’s little reason to believe that the movement to protect the civil right of keeping and bearing arms is going to be any different. The greats of our movement, who laid the scholarly foundations that made the successes in Heller and McDonald possible, are unfortunately getting old. It is necessary to incubate and foster a new generation of legal minds to continue the scholarship necessary to take this struggle well into the 21st century. It is with this in mind that I spent the weekend as a guest to NRA’s Civil Rights Defense Fund.

The CRDF hosted a seminar for up-and coming legal scholars, hosted by the very people who put Second Amendment legal scholarship on the map, and made the “standard model” the mainstream viewpoint. It featured lectures from Don Kates, Dave Hardy, Joyce Malcolm, Bob Cottrol, Dave Kopel, Nick Johnson, Steve Halbrook, and several others folks who I will feature as I speak more about the weekend in upcoming posts. I should note that if the caliber of people I met this weekend is any indication, the Second Amendment will be in good hands. As someone with no formal legal training, I certainly felt out of my league. The seminar attendees came from all four corners of North America. From Maine to Florida, over to California, up to Idaho and onward to Alberta. Yes, we even had a Canadian attendee.

I’ll have more to relay as the week progresses, but while the Brady Campaign were busy lighting candles to mourn the passing of their relevance, we were busy trying to secure the future of Second Amendment scholarship. This was a first of its kind event, but if this weekend is any indication, I’m very optimistic for future successes.

Protecting Technology

Sebastian — Tue, 03 Jan 2012 13:02:51 +0000

The Second Amendment is a bit unique among our constitutional rights. In order to protect some rights, our Constitution places obligations on the government, as is the case in Fifth Amendment, which requires to government to indict via grand jury, and the Sixth Amendment, which requires the government to provide “a speedy and public trial, by an impartial jury.” The rest of the Amendments generally forbid the government from doing things, like infringing on speech, quartering troops, or inflicting cruel and unusual punishment. The Second is not different in this regard, but I’ve heard some of our opponents in the gun control movement try to argue the Second Amendment has to be a unique case because it protects dangerous objects, and no other amendment protects objects. In that context, I find this recent law review by Eugene Volokh interesting, in regards to what constitutes “the press.”

But other judges and scholars—including the Citizens United majority and Justice Brennan—have argued that the “freedom . . . of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Professor Volokh’s review takes a look at early case law, and demonstrates that protection of the press as a technology is the predominant one in American jurisprudence. It is actually surprising how much the early media resembled what’s grown organically from the Internet.

But it shows that the Second Amendment is hardly unique among rights in protecting the right to own an object. Implicit in freedom of the press is the right to own one, or the modern equivalent, which would be a computer, and an Internet connection. Computers and Internet connections can certainly be subject to heinous abuses, such as distribution of child pornography. One could even imagine it possible to kill many people by hacking into the right public works systems and disrupting them.

Yet, in most cases, the Government is quite limited in how it can restrict access to the press. Could the government ban child molesters from owning a computer? From an Internet connection? Actually, this is an active issue, currently. But far from being an extreme point of view, it’s completely justifiable to question whether the government can require a license for owning a firearm, when it can do no such thing for a printing press or a computer. Could the government even subject computer buyers, or Internet subscribers, to an instant background check? That’s probably of dubious constitutionality. So why is it to radical to suggest guns be treated in the same manner? It is only radical because our opponents, who are extremists, say it is. But in the realm of constitutional law, it’s a legitimate question.

On Attorney’s Fees in Second Amendment Cases

Sebastian — Fri, 30 Dec 2011 15:48:25 +0000

Countertop explains, in a comment, how attorneys fees are generally awarded, which suggests that the 1.1 million award to Alan Gura is actually pretty good, considering. But it was important to go after as much as possible. Not only to reward good work, but also, and perhaps more importantly, to discourage other municipalities from resisting our cause when we file lawsuits. I am hoping that the 1.1 million award here is sufficient to accomplish that, even though I would have been tickled pink by a higher amount. The best outcome upon a municipality or state receiving a Second Amendment suit is to fold immediately. We’ve seen that happen already, and I hope the award here will further those results.

To the Terror of the People

Sebastian — Wed, 14 Dec 2011 13:26:59 +0000

SayUncle has the background on the case of Embody v. Ward, in regards to an SAF brief that must be read if you’re into all the detailed legal stuff. Generally speaking, in common law it was an offense to go about armed to the terror of the people. Blackstone was never remarkably clear about exactly what that meant, but in the modern context Embody probably falls into that category.

The District court reached that the Second Amendment right was limited, not applying in public parks. SAF’s brief essentially argues Embody can be disposed of without having to so limit the right. From their argument:

Heller’s recognition of a right to carry a handgun does not force states to allow the carrying of handguns in a manner that may cause needless public alarm, so long as a more socially-conductive option exists to allow people to exercise the right to bear arms. But once a legislature determines that only a particular manner of carrying will be permitted, that choice must be honored.

No doubt they are going to take some heat for that statement from people who fail to grasp the implications of fighting this battle out in the courts, but I think their chosen strategy here is a wise one, that comports with the original common law conceptions of the right, and how it’s been implemented in the American tradition. The state may regulate the manner of carry, but may not outright prohibit it. Under SAF’s standard here, it would be questionable, for instance, about whether New Jersey could, say, ban all but open carry, since it’s pretty obviously not the “more socially-cunductive option” in regards to the exercise of the right. But under this standard, New Jersey could ban open carry.

For folks who don’t like this, you can thank Leonard Embody. Now the game is to try to undo the damage he has already done, and I think if SAF’s brief is influential with the court here, it’s the best way to accomplish that.

An Important Harbinger of Things to Come

Sebastian — Wed, 07 Dec 2011 14:14:25 +0000

It looks like the GOP held together on a filibuster for a strongly anti-gun judge Obama wanted to appoint to the DC Circuit. This greatly pleases me, because it means we can likely defeat a Supreme Court nominee as well. The great difficulty is that you’ll likely never get a pro-Second Amendment candidate out of Obama, but he will be at least forced to find someone who’s never said anything about it, in which case we at least both roll the dice, rather than just letting Obama pack the Court with people we know will be against us.