Another Court Loss: Preliminary Injunction Denied

Yesterday an NRA backed case that challenged San Francisco’s safe storage and ammunition restrictions lost in District Court. Reading the opinion here, I find myself stunned by this:

Plaintiffs’ showing as to the severity of the burdens imposed by section 4512, “The Safe Storage Law,” is only marginally better. As noted above, section 4512 gives San Francisco residents the very set of rights the Heller plaintiff sought and obtained. San Franciscans may lawfully possess handguns in their own homes, may carry them in their own homes at any time, and may use them for self-defense without running afoul of any aspect of the ordinance. Plaintiffs have offered only the possibility that in a very narrow range of circumstances, the delay inherent in rendering a handgun operable or in retrieving it from a locked container theoretically could impair a person’s ability to employ it successfully in self-defense. Even assuming this rises to the level of a “substantial” burden, however, thereby triggering some heightened degree of scrutiny, plaintiffs have not shown the regulation to be overreaching or improper in any way, or that it fails to serve a legitimate governmental interest. Indeed, as noted in Heller itself, nothing in its analysis “suggest[s] the invalidity of laws regulating the storage of firearms to prevent accidents.”

This is disingenuous, and the quote taken from the full context. The full quote from the Heller opinion, in full context, is this:

The other laws Justice BREYER cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at 2849-2850. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.

The majority is refuting justice Steven’s dissenting argument about 18th century laws that mandated storage of excess gunpowder on the top floor of the home, and speaking of safe storage in a context which does not burden the right of self-defense to any real degree. Any honest reading of Heller has to come to terms with the fact that the invalidity of  storage requirements that interfere with self-defense is unambiguously part of Heller‘s holding:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

It is difficult to see how the San Francisco ordinance is materially different from that of the District of Columbia’s. I can accept that on the matter of ammunition restrictions, a judge has some room to suggest that case law is not that well established, and perhaps a preliminary injunction is not appropriate, but regardless of what is stated in Nordyke, which cannot control Heller, any requirement that a firearm be bound by a lock or stored in a way that makes it unavailable for self-defense is pretty unambiguously unconstitutional. The judge here pulls dicta out of context, in an attempt to ignore the core holding in Heller. It is worth noting that the judge in this case is an Obama appointee. Elections have consequences.

Wednesday Tab Clearing

Lots of stories built up in the tabs this week that don’t quite warrant their own posts, but are interesting, nonetheless:

The Crimes of Gun Grabbing Mayors from Emily Miller. We have Google Alerts looking for criminal mayors, and let me tell you, this is not a group of people who should be lecturing any gun owner about gun ownership leading to crime. What we don’t publish is all the non-MAIG mayors who end up in trouble with the law, and as you can imagine,it’s far more numerous. Guns don’t cause crime, but mayors sure seem to.

Learning from the Election. I agree with much of Victor Davis Hanson’s take on this election. I’m challenged my his section on the Latino Vote. Much of what I’ve seen in regards to the Hispanic vote suggests it wasn’t immigration that drove them, it was the fact that they support Obamacare and the Stimulus in large numbers. Hanson’s prescription is “the Italian strategy” — to close the border and allow upward mobility to work its magic. I generally favor liberal immigration policies, but if the people you’re letting in believe in big government and social democracy rather than limited government and American republicanism, to what degree are you just committing national suicide?

The GOP ignores low-information voters at their peril. Bitter once talked to the daughter of a Democratic strategist when she lived in DC, who shared a disdain of this voting group. Partisans on both sides generally are much more informed than the average voter. But the person she talked to admitted Democrats encourage this voting group because they tend to break for Democratic candidates. This article suggests Democrats are doing a much better job marketing to this group than the GOP.

Sending in the health teams. Apparently the New York City Department of health is busy making sure restaurant standards are busy being kept up in relief tents. The response to this storm in New York has been at least as bad, if not worse, than Katrina, but you don’t hear the same wailing and gnashing of teeth in the media. Instapundit‘s characterization of this as “Katrina on the Hudson” is apt.

Billionaire’s Gun License is Suspended Amid Inquiry. It’s funny how millionaires and billionaires always seem to have “good cause” to get a license in New York. This, the 2nd Circuit has ruled, is a completely objective, and constitutional standard. That panel of judges is a disgrace to the Constitution, and we’re only going to see more of it now that Obama has been re-elected and Harry Reid is preparing the nuclear option. This is what happens when you elect people who care more about their own power than the document which limits it.

A Blogger’s Worry: Media Getting Better on Guns?

As much as we beat up on the media for getting it wrong, or outright bias, there is a certain amount of buzz that’s necessary for a political gun writer to have something to talk about. Lately that buzz on gun news has been simple and positive. The media is writing stories left and right about the spike in guns sales, but there’s only so much to say about that, and the story formula is pretty much the same — reporter speaks generally of the election, of the FBI reporting the spike in gun sales, then goes an interviews a local gun shop which says something like, “Yep, seeing a lot of sales. Women especially.”

When I started this blog, I never would have believed this could even be a worry. Even though the election went badly for us, this is a positive development, because it’s getting an important meme out there: normal people buy guns. I’ve seen precious few stories that paint these buyers as paranoid militia nuts getting more guns to stow away in their bunkers, thought here have been a few of those, but it’s increasingly coming from outfits that matter little, in naturally hostile media markets. Most articles do speak of anxiety about what the President will do on guns, or speak of unease about the world situation, but it’s rarely painted as delusional paranoia in the majority of stories I’ve run across.

While the media environment is far from perfect, as I can still find the classic bias that’s long been there, it is vastly improved, and keeps improving. The media is starting to get it right on guns. We have been schooling them, and I think our letters, blog posts, and e-mails are making a difference in how journalists approach the issue. This is good, but it does make it more difficult to write on the subject, since the media has long been a foil for political gun bloggers.

I am probably not the only one who is quietly worried by the development. The NRA has long benefitted from a media environment hostile to gun ownership, and while the media is still quite hostile to the NRA, it’ll be interesting to see what happens in a media environment more fair to gun ownership but still hostile to the organization which defends it.

A Gift to the Birthers

Oh, the joys of Pennsylvania politics already picking up steam so soon after the election:

Ok, Birthers, listen up: You now have a Democrat seeking high office who admits to being born in Kenya.

As far as we know he’s not Muslim or a socialist, but he is, as of Wednesday, running to unseat Republican Gov. Corbett in 2014.

Interestingly, he can’t use the office as a stepping stone to be president since he wasn’t just born in Kenya to American parents. He was born to British parents and only became a US citizen in 1977.

Lowering Expectations

I agree with Joe, that it seems the other side is not quite so ambitious on the magazine ban front as they once were, and not routinely tout 100 round magazines as being patently ridiculous more often than speaking of hard limits. Probably smart. Most Americans don’t own 100 round magazines (even I don’t have one), but many own 11-30 round magazines.

But it’s a sharp contrast from yesteryear. I seem to recall reading that the magazine limitations were originally an idea floated by Bill Ruger, who was interested in saving the Mini-14. Ruger’s proposal was to focus on the magazine size rather than the gun, and threw a 15 round limit out there for people to chew on. The gun control crowd loved the idea. Of all the states that passed assault weapons bans, only New Jersey adopted the 15 round limit. Every other adopted ten. I heard originally, anti-gun politicians floated a 5 round limit, and 10 was the compromise. Now they’d be happy to ban the drum magazines. Progress.

As for Bill Ruger, the Mini-14 may have been spared, but we got an assault weapons ban and a magazine ban. It took a while for the gun community to learn there’s nothing to be gained in preemptively surrendering ground. Compromise is something you do when circumstances leave you no good option, and your choice is between getting beaten and getting killed. Compromise is not a starting position in a political struggle.

Second Circuit Upholds Sullivan Law

Via Jacob, the decision can be found here. The decision will be appealed. In the decision they kind of dabble in the history and tradition argument, without really going into serious analysis, then you get this:

But Plaintiffs’ contention that the proper cause requirement grants licensing officials unbridled discretion is something of a red herring. Plaintiffs admit that there is an established standard for determining whether an applicant has demonstrated proper cause. The proper cause requirement has existed in New York since 1913 and is defined by binding judicial precedent as “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Plaintiffs’ complaint is not that the proper cause requirement is standardless; rather, they simply do not like the standard—that licenses are limited to those with a special need for self-protection. This is not an argument that licensing officials have unbridled discretion in granting full-carry permits. In fact, the State Defendants’ determinations that Plaintiffs do not have a special need for self-protection are unchallenged. Rather, Plaintiffs question New York’s ability to limit handgun possession to those demonstrating a threat to their safety. This is precisely the type of argument that should be addressed by examining the purpose and impact of the law in light of the Plaintiffs’ Second Amendment right.

Plaintiffs’ attempts to equate this case with Heller or to draw analogies to First Amendment concerns come up short.

They go on to conclude the core right is a right in the home, and make analogies to privacy rights, and speak of the home as having high constitutional protections relative to public places, even going so far as to recall rulings that allow obscenity to be possessed in homes, but banned in public.

They then go the traditional route for the lower courts, which is to apply intermediate scrutiny, which of course means the statute in question survives. Can you think of any case where a gun control statute was tossed using intermediate scrutiny? I can think of Ezell, but that was heightened-almost-scrict scrutiny. It seems the courts in these cases believe that if they just rename rational basis to be intermediate scrutiny, using rational basis review somehow becomes OK, as long as you don’t call it that.

Either the lower courts are in for an epic smack down after all these carry cases play out in the lower courts, or taking this issue into the courts is going to turn out to be an epic mistake, and we’re going to end up with a Second Amendment right that is a mish-mash of the worst things the state courts have already done to it. I am sincerely hoping the former is the case.

Failing to Understand Rights

And this from a Laywer. I’d never hire this guy:

Perhaps it is time that the Florida Department of Law Enforcement takes away the responsibility of overseeing concealed weapons from the Department of Agriculture? Just because having a gun in Florida is a constitutionally protected right does not mean it should be so cheap and so easy.

Shouldn’t exercising a right be, by the very concept of a right, “cheap” and “easy?” Does our HuffPo lawyer columnist believe that one can tax speech? What about the right to marry? The Supreme Court of the United State has said “no,” that free speech may not be taxes. And at least one state has said no to marriage. How can a right be constitutionally protected if the citizen may be taxed and frustrated from its exercise?

Mr. Aronfeld, if you don’t like the idea of keeping and bearing arms being a right, then just say so. Suggesting it’s some special right that deserves no real protection is intellectually dishonest and unworthy of a legal mind.