The 16th Annual National Firearms Law Seminar

We’re attending the Firearms Law Seminar today. This is an annual event that is organized by NRA’s Office of General Counsel, and counts for CLE credits for all the lawyers in the room. Sarah, who is one of the organizes and presenters today, said about 200 or so people were expected. The topics covered today:

1. The Justification of Self-Defense
2. Protection of Sport Shooting Ranges
3. Misdemeanor Domestic Violence Convictions
4. Advising and Representing FFLs
5. New State and Federal Legislation
6. The NFA and Gun Trusts
7. Federal Firearms Disqualifications and the Restoration of Rights
8. International Treaties and Agreements

Dave Hardy won’t be presenting this year, so we won’t have any Carthaginian war elephants in the presentations, as an example of what might be a “dangerous and unusual” weapon. At least I don’t think.

NRA v. BATFE Loses Appeal in 5th Circuit

This is the case challenging the prohibition on 18-20 year olds being able to purchase a gun from a federally licensed dealer. You can find the opinion here. I haven’t read it in detail, because it’s rather lengthy, and I don’t have time. But skimming through the opinion, I think the Circuit Court seems to have done a combination of analysis through history and tradition, like we saw with Judge Kavanaugh’s dissent in the DC Circuit in Heller II, and intermediate scrutiny analysis. I wouldn’t go so far as to suggest the “Intermediate Scrutiny Two-Step” is at work here. This is what I have dubbed the practice of relabeling rational basis review, or something only slightly more rigorous, as intermediate scrutiny, in an attempt to uphold a favored law with a minimal burden put on the government, in terms of justifying the restriction. But I do want to take a look at some parts of the opinion that jumped out at me:

In the view of at least some members of the founding generation, disarming select groups for the sake of public safety was compatible with the right to arms specifically and with the idea of liberty generally.

This may be true, but what does it really tell us? Large numbers of the founding generation also thought chattel slavery was compatible with “the idea of liberty generally,” but changes in the Constitution since then have rendered many of these ideas moot. Granted, it shows us that the founding generation understood some controls over arms were acceptable, but it tells us little about what kinds of restrictions are acceptable. Are minors among “select groups” which can be disarmed “for the sake of public safety?”

Notably, the term “minor” or “infant”—as those terms were historically understood—applied to persons under the age of 21, not only to persons under the age of 18. The age of majority at common law was 21, and it was not until the 1970s that States enacted legislation to lower the age of majority to 18. See, e.g., Black’s Law Dictionary 847 (9th ed. 2009) (“An infant in the eyes of the law is a person under the age of twenty-one years, and at that period . . . he or she is said to attain majority . . . .” (quoting John Indermaur, Principles of the Common Law 195 (Edmund H. Bennett ed., 1st Am. ed. 1878))); id. (“The common-law rule provided that a person was an infant until he reached the age of twenty-one. The rule continues at the present time, though by statute in some jurisdictions the age may be lower.” (quoting John Edward Murray Jr., Murray on Contracts § 12, at 18 (2d ed. 1974))); see generally Larry D. Barnett, The Roots of Law, 15 Am. U. J. Gender Soc. Pol’y & L. 613, 681–86 (2007). If a representative citizen of the founding era conceived of a “minor” as an individual who was unworthy of the Second Amendment guarantee, and conceived of 18-to- 20-year-olds as “minors,” then it stands to reason that the citizen would have supported restricting an 18-to-20-year-old’s right to keep and bear arms.

That’s what the analysis should hinge on: is the age of majority 18 or 21? If the answer is 21, then the analysis can proceed from there. But I think you’d find precious few laws restricting the purchase, possession, or bearing of arms by juveniles during the time the Bill of Rights was framed. The Court essentially admits that:

To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction. The important point is that there is considerable historical evidence of age- and safety-based restrictions on the ability to access arms. Modern restrictions on the ability of persons under 21 to purchase handguns—and the ability of persons under 18 to possess handguns—seem, to us, to be firmly historically rooted.

I don’t think mere existence of some kinds of restrictions in historical record necessarily ought to mean that restriction is presumptively constitutional. I believe finding an analogous law in the historical record, and declaring the restriction constitutional, is lazy. A law, for instance, barring permanent residents from their right to keep and bear arms might find analogues in laws which prohibited loyalists, but because of the changes in the Constitution since those times, such a law should not withstand any level of scrutiny in modern times. I don’t think the existence of such laws inform us of much, other than many in the founding era shared many of the irrational prejudices held by people today. Also, you can find in the historical record, laws prohibiting selling or trading guns with Indian Tribes, which may have served a “public safety” purpose at one time, but that’s not to suggest it would still serve the same purpose now.

Nor do I don’t think the fact that a law existed, and has been longstanding, should be sufficient as to deem any such law constitutional. This is the “tradition” part of “history and tradition.” The Sullivan Act is both historical and longstanding, but is it common practice or an outlier? It would be hard to argue that something practiced by half the states, and upheld by numerous state courts, is an outlier. Something practiced by only small number of states or localities is an outlier, and not part of our general tradition on regulation of firearms. How many states require a license to own a gun? I can think of five? Maybe six. The Circuit Court points out:

Arms-control legislation intensified through the 1800s, see Cornell & DeDino, 73 Fordham L. Rev. at 512–13, and by the end of the 19th century, nineteen States and the District of Columbia had enacted laws expressly restricting the ability of persons under 21 to purchase or use particular firearms, or restricting the ability of “minors” to purchase or use particular firearms while the state age of majority was set at age 21.

The question, in a tradition and history analysis, ought to be whether such restrictions were widespread and accepted, and also whether they were enforced fairly and evenly. I’d not give too much weight, for instance, on the existence of a law that, by language, applied to everyone, but in practice was only ever enforced on disfavored minorities. I also think the nature of the restrictions needs to be at issue. How many amounted to a blanket prohibition on purchase? I think “history and tradition” analyses need to take this into account.

Alternatively, Congress could have sought to prohibit all persons under 21 from possessing handguns—or all guns, for that matter. But Congress deliberately adopted a calibrated, compromise approach.

Really? It could have? And would that have created any constitutional issues? So are the young deserving of absolutely no protection under the Second Amendment? Not even to possession for training purposes under supervision of a responsible adult? Perhaps Congress could have done that, but it shouldn’t say anything about whether or not it would be constitutional for Congress to do so.

I don’t deny that from a legal standpoint, this is a complex issue. Eugene Volokh spoke of this in his quite widely read paper on this issue:

The rule that majority begins at 21 endured until the early 1970s,281 so most right-to-bear arms provisions were thus enacted while 18-to-20-year-olds were technically treated as minors. And the same issue arises as to other rights as well: Consider, in the First Amendment context, a recent proposal to set 21 as the age of consent for being filmed or photographed naked or in sexual contexts, and the possibility that this is already the law in Mississippi and as to under-19-year-olds in Nebraska. Consider the Nebraska requirement of parental consent for marriage of under-19-year-olds. Or consider the Alaska law barring possession of marijuana by under-19-year-olds even though the Alaska Supreme Court has interpreted the Alaska Constitution’s right to privacy as securing adults’ right to possess small quantities of marijuana at home.

I’m skeptical about this argument, because the pre-1970s cases that I’ve seen involving lesser constitutional rights for minors—lesser free speech rights, lesser religious freedom rights, and lesser criminal procedure rights—involved age cutoffs of 18 or less. Whatever setting the age of majority at 21 might have meant for purposes such as contracting, parental authority, and the like, it seems not to have affected those other constitutional protections. At the same time, for much of our nation’s history, the right to contract was seen as an important constitutional guarantee, and that right was not fully secured to 18-to-20-year-olds. The matter of the historical constitutional rights of 18-to-20-year-olds warrants more research.

I also think it should not be overlooked that this is a federal restriction rather than a state one. If a state wants to lower its statutory age of majority from 21 to 18, to what extent does the federal government have the power to override that when the exercise of a constitution right is in question? Indeed, every state save Alabama (19), Nebraska (19) and Mississippi (21) have age of majorities at 18. I tend to think the federal government ought to face a substantial burden in justifying this restriction. Why can’t the states arrive at a new consensus on age of majority? What other rights could the federal government restrict contrary to that new consensus? How do you square this with Congress’s other enactments which declare anyone to be 18 years or older an adult?

This was a more rigorous analysis than most federal courts have engaged in when considering Second Amendment issues, but is still insufficient treatment for a fundamental constitutional right.

Gun Control Debate: CLE

For those of you in the audience who need Continuing Legal Education credits, there is a gun control debate coming up Philadelphia:

The gun control debate is raging across the country. The horrific tragedy at Newtown has moved it to the front of our national consciousness. While the politics of the debate seem to drive the issue, there is still the law to consider, with interpretations of the 2nd Amendment affecting virtually every issue that arises in the effort to curb gun violence.

 Hear from the Philadelphia Police Commissioner, representatives of the NRA and the Brady Center, and other advocates for and against gun control legislation.

We Have Language on the Toomey-Manchin Amendment

UPDATE: OK, a bit of editorializing here. After reading and re-reading a lot of these provisions, it’s not abundantly clear what circumstances are or aren’t covered. This bill is not just limited to Internet sales, as it was advertised, but also includes soliciting for a transfer in “publications,” which are poorly defined in the Toomey-Manchin amendment. Senator Toomey says this measure throws some bones to gun owners, but without it being clear what it takes away, how can we possibly support it?

Can be found at Senator Toomey’s website. First, GOA’s assertions that doctors can put people in NICS is completely false. So is their assertion that being on anti-depressants will get you in the database. This is the same crap we heard during the last bill after Virginia Tech. With that out of the way…. I’m going to try to give you my best interpretation of the language, with no spin or chicken little routine.

(t)(1) Beginning on the date that is 180 days after the date of enactment of this subsection and except as provided in paragraph (2), it shall be unlawful for any person other than a licensed dealer, licensed manufacturer, or licensed importer to complete the transfer of a firearm to any other person who is not licensed under this chapter, if such transfer occurs-

(A) at a gun show or event, on the curtilage thereof; or

(B) pursuant to an advertisement, posting, display or other listing on the Internet or in a publication by the transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm.

This basically sets forth what is illegal under the Toomey-Manchin proposal. The definitions come later. I’d note that this only seems to make transfers between non-licenees (e.g. private individuals) subject to checks if (A) or (B) apply. Next we look at the exceptions:

(B) the transfer is made between an unlicensed transferor and an unlicensed transferee residing in the same State, which takes place in such State, if-

(i) the Attorney General certifies that State in which the transfer takes place has in effect requirements under law that are generally equivalent to the requirements of this section; and

(ii) the transfer was conducted in compliance with the laws of the State;

(C) the transfer is made between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins, if the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law; or

(D) the Attorney General has approved the transfer under section 5812 of the Internal Revenue Code of 1986.

By my reading, those exceptions apply to transactions conducted at guns shows, on the Internet or in publications, because transfers between unlicensed individuals is only prohibited under those circumstances. BTW, (D) refers to NFA transfers.

Paragraph (4) gives the Attorney General limited powers to promulgate regulations. They stipulate a number of things the Attorney General may not do, which addresses some of the concerns with S.374. I’d encourage folks to game through this one. This is important language.

Paragraph (5) and (6) applies PLCAA civil immunities to gun show promoters and to people who operate “interactive computer services,” which in this case would mean sites like Gunbroker.com.

Paragraph (7) is where we get to definitions.

(7) For purposes of this subsection, the term ‘gun show or event’-

(A) means any event at which 75 or more firearms are offered or exhibited for sale, exchange, or transfer, if 1 or more of the firearms has been shipped or transported in, or otherwise affects, interstate or foreign commerce; and

(B) does not include an offer or exhibit of firearms for sale, exchange, or transfer by an individual from the personal collection of that individual, at the private residence of that individual, if the individual is not required to be licensed under section 923.

A flea market where a few guns go out wouldn’t be affected. Selling a gun at a huge flea market? Better run around and count! Likewise, most yard sales would not be. This doesn’t create any liability for organizers or promoters that I can tell. As for advertised sales on the Internet and in publications, I’m not pleased that there’s not more clarification on what a “publication” is, or what types of medium on the Internet are covered. Club newsletters would seem to apply. What about a bulletin board at a club? Sending an e-mail to a friend? I think the Internet/Publication language is more inadequate than the gun show language.

It gets interesting in Section (c) of the Amendment, which is supposed to offer protections from a national gun registry, except that the proposed new 18 USC 923(m) fails to forbid the attorney general from compiling a registry from all the information from closed FFLs that’s residing on microfilm in a huge warehouse in West Virginia. This is a huge oversight! By spelling out what he can’t do, you better be thorough, or the implication is that he can do it.

Now we get to penalties:

(8) Whoever makes or attempts to make a transfer of a firearm in violation of section 922(t) to a person not licensed under this chapter who is prohibited from receiving a firearm under subsection (g) or (n) of section 922 or State law, to a law enforcement officer, or to a person acting at the direction of, or with the approval of, a law enforcement officer authorized to investigate or prosecute violations of section 922(t), shall be fined under this title, imprisoned not more than 5 years, or both.”; and

(2) by adding at the end the following:

(q) Improper Use of Storage of Records.-Any person who knowingly violates section 923(m) shall be fined under this title, imprisoned not more than 15 years, or both.

Section (8) makes no sense to me, and I think they might be missing a word. Either way, it sounds like the intent was to criminalize the transfer only if it ended up to be to a prohibited person, and to exempt if you’re law enforcement, or being directed by law enforcement, but I think they are missing some “not” language in there. Either way, this would make Bloomberg’s stings illegal if I’m reading what they mean rather than what they said correctly.

UPDATE: I forgot to mention. The penalty only seem to apply if you actually sell to someone who’s prohibited. If someone sold his buddy a gun not knowing there was a law against that kind of thing, because his buddy saw he posted it somewhere and said “Hey, don’t sell that online, I’ll buy it,” the penalty would only apply if his buddy was actually prohibited. At least that’s how I read it.

UPDATE: I’m striking out the above language in light of this comment. If this is indeed the case, selling to an undercover cop, or an undercover cop’s informant, also invokes the felony penalty.

The rest of the bill seems to be to be pretty much as advertised. Anyone else feel free to read over the parts I haven’t talked about and see if I missed anything.

UPDATE: I’m not sure how I feel about the state license exemption. For instance, in the proposed new 18 USC 922(t)(2)(A)(i):

… except that when processing a transfer under this chapter the licensee may accept in lieu of conducting a background check a valid permit issued within the previous 5 years by a State, or a political subdivision of a State, that allows the transferee to possess, acquire, or carry a firearm, if the law of the State, or political subdivision of a State, that issued the permit requires that such permit is issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by the unlicensed transferee would be in violation of Federal, State, or local law;

The language here is nearly identical to the current 18 USC 922 (t)(3)(A)(ii), which would just move up to (s), the current (s) being moot and proposed to be struck. The language in the proposed bill is different, but says it applies to “a transfer under this chapter.” It is not limited just to that subsection. The language is different. So which one controls? Does it change if you’re processing a transfer under proposed subsection (s) or subsection (t)? Shouldn’t those be harmonized, or rather, wouldn’t it better just to fix the one in (s), move it up, and call the subroutine from (t)? It’s also not clear to me that this would change much in terms of how ATF treats state licenses as NICS equivalents. I’m not very knowledgable in this area though.

UPDATE: If I had to sum up the effects of this amendment in a sentence: “If you’re selling a gun to someone you really don’t know, you better do it through an FFL.” The idea that this only applies to Internet sales or gun shows is really nebulous. Also, if you know your friend is a cop, don’t sell it to him.

UPDATE: John Richardson has some analysis here.

Video Weekend, Part 1: Clarence Thomas

I’ve built up a number of videos worth watching during the week. It’s a good thing to keep on as background noise while I’m working. I enjoyed this video from Harvard of a visit with Justice Thomas:

Via Ann Althouse.

In the same series, they also have a visit with Justice Ginsburg that’s worth watching too. Ginsburg is looking a lot better these days. She’ll probably retire during Obama’s term, but I’d love it if she held on another four years into the next Administration.

Arming a Hobbyist Drone

Interesting article over at Volokh on a man who put a paintball gun on a drone, and wondered how long it would be before someone mounted a real gun. He also ponders the legal implications. It’s hard to say. Generally speaking, you’re probably going to jail if you actually would use such a thing on a person. I could also imagine there could be problem with many state laws which ban spring-guns and traps.

Gun Control History Bleg

Dave Hardy is looking into the history of New York State’s gun laws, and could use some help. This kind of meticulous academic work is the foundation of our victories in the Supreme Court and now the 7th Circuit, so it’s important. If you know anything about this, let him know, or let me know and I can forward it along.

A Case to Watch Regarding the Florida Doctor Speech Restrictions

Eugene Volokh details a pair of cases making their way through the 9th Circuit courts challenging California’s prohibition banning mental health care providers from trying to change sexual orientation for minors. If the 9th Circuit Court of Appeals ends up hearing this case, and upholding the law, you can bet that this decision will be brought up in the appeals for the challenges to the Florida law which bans doctors from asking patients about gun ownership (already held unconstitutional in District Court). My personal opinion is that both laws are unconstitutional, but it does illustrate the notion that there are many on the right and left that aren’t particularly dedicated to the notion of free speech, and completely willing to use government to suppress speech they find repugnant.

Tab Clearing: Library of Law & Liberty Edition

This is a new blog (to me) I’ve been watching since I discovered Professor Johnson had joined the blog. It’s good reading, but definitely not light reading, so here are some highlights from the various authors.

Nicholas Johnson: Bob Costas’ Supply-Side Gun Control Fallacy, Is Gun Regulation Maturing?

Mike Rappaport: What Libertarians Think About the U.S. Constitution Part III: Shay’s Rebellion, Liberty, and a Stronger National Government

Jeremy Bailey: Energy in the Executive: Thomas Jefferson’s Transformative Presidency

James Stoner: Why You Can’t Understand the Constitution Without the Common Law

Hadley Arkes: Peeling Back the Common Law: Reflections Stirred by James Stoner on the Common Law

PLCAA in New York Courts

Earlier this month a New York appeals court overturned the dismissal of a lawsuit against Beemiller, Inc, the maker of the Hi-Point 9mm, which is being sued because of criminal misuse of their product. The lower court, correctly, cited the Protection of Lawful Commerce in Arms Act. Law.com has a very good article with some background. John Richardson has more, including an NRA News interview with Steven Halbrook. The actual opinion cites the exceptions to the PLCAA as a reason for allowing the case to go forward, particularly the text which allows, “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”

The complaint is against the dealer, the distributor, and the manufacturer. The case is actually quite interesting. The dealer in this was licensed from his home, and did business at gun shows. There’s nothing unlawful about this arrangement, but it’s alleged that the dealer knowingly facilitated straw purchases in violation of federal law, which, if true, would indeed put the suit outside of the PLCAA. Where it gets interesting is that the dealer in question was a high level officer, and is now the President of the distributor that’s being sued as well. Said distributor is the sole marketer and distributor of Hi-Point firearms. The court essentially ruled that the plaintiffs are entitled to discovery, given these facts.

The Brady Center is touting this as a major landmark victory. They have been attempting to poke holes in the PLCAA virtually from the moment it passed, since it has effectively ruined their strategy to sue firearms manufacturers, distributors, and dealers out of existence. I haven’t been able to find all the pleadings in this case to know for sure, but the circumstances here look fairly unique and narrow, with someone who is a dealer and also part owner of the sole distributor of a firearms manufacturer. Nonetheless, the Bradys would love to carve a PLCAA exception wide enough such that any firearm sold by a dealer to a straw buyer can result in a potential lawsuit at least reaching the discovery phase. All it takes is for this to happen in a single jurisdiction, and it’ll be open season on firearms dealers.