More District Court Opinion Failures

The Hightower case in Massachusetts, involving a former police officer who had her license to carry (also a license to possess in Massachusetts) revoked and her gun confiscated, has been lost in District Court in Massachusetts. The District court in this case argues that the Second Amendment is not implicated:

First, the Massachusetts licensing statutory scheme does not strike at the heart of the Second Amendment: while the difference between a restricted Class A license (which Hightower has not applied for) and an unrestricted Class A license (which Hightower has had revoked) may have some marginal impact on Hightower’s ability to use a gun to defend herself outside her home, it has no impact on her ability to defend hearth and home or to defend herself at home, which she can do adequately with a restricted Class A license or Class B license. Further, because the statutory scheme at issue here imposes only case-by-case restrictions, it creates a narrower restraint than the categorical prohibitions that, under certain circumstances, survive Second Amendment review.

You can read the whole opinion here. I’m not a lawyer, nor a serious scholar, but I find this opinion to be nearly incoherent. The Court essentially says the case is not ripe, because she could have re-applied for a permit. But that doesn’t address the deprivation of the right in the first place that occurred when the state seized the woman’s firearms. The district judge in this case seems to support the notion, without any analysis or justification, that it does not run afoul of the Constitution to have local authorities declare who is “suitable” and who is “unsuitable” for exercising their constitutional rights.

But the Court would find that the government has a legitimate interest in protecting public safety, especially in light of the prevalence of gun violence in Massachusetts and especially in Boston, would find further that this interest extends to an interest in removing, at least temporarily, guns from the hands of individuals initially deemed unsuitable for gun possession, and would find further still that these interests bear a meaningful relationship to the enforcement mechanism requiring local licensing authorities like the BPD Commissioner to determine whether an individual applicant appears unsuitable based on the content of her application materials, subject to judicial review.

If this is the standard, then there is no right. It’s a privilege can be granted or revoked at the whim of the state. It’s worth noting that the judge in this case was appointed by President Obama. If you want to know why we have to get this guy out in 2012, this it. This judge has essentially ruled that the Second Amendment, as applied to the states through the 14th Amendment is without substantive meaning.

6 thoughts on “More District Court Opinion Failures”

  1. This is weird. She had a prisoner complaint against her in 2004 but it wasn’t serious enough that the department took her gun away until she retired in 2008, at which time they put a letter in her personnel file connecting the retirement with the complaint. (Do you figure the letter was stuck in her file to negate her lifetime rights to carry under the Law Enforcement Officers Safety Act of 2004?) So, she loses her rights without ever having any kind of conviction–basically over a work issue in which there doesn’t appear to have been strong enough evidence to officially charge her with misconduct.

    Also, the statistics used by the judge aren’t valid comparisons. The judge notes that statewide “only” 2% of applications are turned down each year, but then also notes that Boston REVOKES 1% of their permits every year. Since in this case the issuing authority is not actually the state but instead local law enforcement, the valid statistic would be to see what % of BOSTON area permits are denied every year. Given the differences between east & west MA., my bet is a huge % of the state-wide 2% denials are from the Boston area.

  2. It’s honestly horrifying to use percentages to weight whether a constitutional right is violated. The question is does the statute permit too much arbitrary discretion, and in this case the answer would clearly be yes if the judges were serious.

    I mean, if 98% of applicants are approved, but 2% are rejected because there’s a chief in some small town who doesn’t like “jews and negros,” shouldn’t that have implications on the constitutionality of the statute?

  3. A couple of things. (note, I am the legal affairs director for Comm2A, who is working with Gura and SAF on this).
    We are appealing.
    Also those stats are very misleading. The application process allows the chiefs to alter the applications to fit their desires. This is because you fill out a paper form, which the CLEO or designate types into the MIRCS system. They then print out the application with their preferred requests on it and the person signs. They are then told they will not get a unrestricted permit so they can either talk to the hand or take what they can get.

    So most people “apply” for all lawful purposes but get a restricted license. But the state only sees the applications for restricted licenses get approved, which pads the 98% side of the statistic. Also, a lot of CLEOs will turn away applicants. We figure about 40% or more don’t get the license they want.

  4. Thanks for the clarification. I figured it would be appealed. Losing in District Court seems to be par for the course for Second Amendment cases. I can’t believe even the original Emerson judge basically tossed the hot potato up the chain. I would have thought better would come from him.

  5. Thanks for the feedback, and I agree with you on the stats. I was just wondering how much the stats they did choose to use (inappropriately, as you say) had additionally been cherry-picked.

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