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Currently Browsing: 2nd Amendment

2nd Amendment Victory in California

District Court win, which can be reversed by the Circuit Court, but a win is a win, and for now California can’t enforce their magazine ban.

It’s good to see some victories. As Dave mentions, it could be the next wave of appellate challenges. I am becoming cautiously optimistic. It’s a long shot, I think, to get court protection for all semi-automatics and accessories. Federal judges are elites who tend to come from more urbanized areas. They don’t like the idea of the peons being armed any more than you’d expect from someone of that class.

I appreciate everyone’s patience through the light posting period. I’ve been extremely busy. Trying to start new steel matches, rebuilding Bitter’s S&W 622, and trying to balance multiple clients at the paying job. I shoot Bitter’s 622 more than she does, and it started getting very fussy about ammo. Replacing the recoil spring, extractor spring, and firing pin seems to have breathed some new life into it. I’d like to have replaced the extractor too, but they are hard to find right now.

Significant Win in Federal District Court

Adam Kraut and Josh Prince have won a pretty significant as-applied 2nd Amendment case in the Middle District of Pennsylvania. Yes, you can lose your right to bear arms for traffic offenses. Someone I know at my club was just telling me the other week that he got arrested for drag racing as a teenager, along with a friend of his that he still keeps in touch with. His parents hired a lawyer and got the case against him dropped, but his friend plead, and has since been prohibited from possessing firearms. Apparently drag racing used to me a 1st-degree misdemeanor in Pennsylvania, which has a potential jail sentence of 5 years, even though his friend never spent a day in jail. In the case just won, the guy got busted for faking an exemption form for tinted windows.

This kind of thing happens more often than you think. The Gun Control Act prescribed a one-size-fits all solution, even though individual states have a lot of variation on what the maximum sentence is for misdemeanor offenses. It’s good to see the courts finally taking this seriously and willing to entertain as-applied challenges, and strike down applications of the Gun Control Act’s prohibitions with regards to non-violent offenses.

Don’t Expect Miracles

I’m seeing a lot of gun owners out there having unrealistic expectations about what this case will accomplish. I don’t think you’re seeing the beginning of the end for Second Amendment litigation. But maybe the end of the beginning, if we’re lucky. As I wrote on Zuck’s Facebook of Horrors:

Kennedy retires and now you have Kavanaugh, who penned that very strong Heller II dissent as a circuit judge. Now instead of having two Weeble Wobbles on the Court, you have one. You also know that your remaining wobbler is a judicial minimalist who doesn’t agree with upsetting legislative apple carts needlessly. This is, I’d note, not even considering what the other justices might know about RBG’s actual condition.

So why not use this case if you’re the four strong pro-2A judges? If you need to, you can narrow it up quite a bit to keep Roberts on board. You can please his inner minimalist. It only affects a few hundred legal gun owners in NYC, after all. But if Roberts is feeling frisky, you can use it to say a lot about the right to bear arms outside the home. You can use it to smack down the 2nd Circuit, which has pretended Heller and McDonald never happened. You can go a lot of places. And if RBG leaves the court for health reasons? It’s a different ball game. I think this case makes a lot of sense, and I’m optimistic.

The fact that it’s an outlier law that exists in literally no other jurisdiction can help Kavanaugh build on this “history and tradition” model because this law is so far removed from that. It’s about as far removed from that as you can get. I think Roberts would also like moving away from standards of review. I think I’ve read some writings of his critical of “levels of scrutiny” that’s been adopted in the First Amendment context and abused by the lower courts in the 2nd Amendment context.

At best, you’ll get a ruling with a lot of helpful dicta that will make the lower courts start taking the Second Amendment more seriously than they have been. This case won’t fix everything having to do with carry. That will take more time and probably more cases. There’s also the possibility that Roberts will insist on keeping the case narrow, and we won’t get much in the way of helpful dicta.

I view this case as testing the waters: the pro-gun justices, believing or perhaps knowing they have a majority, now want to see how a Second Amendment case shakes out, and do it with a case that isn’t high stakes and has a lot of flexibility.

I serve on a decision making body roughly the size of SCOTUS, and I can tell you where my fellow directors stand on things, and can even usually predict where they’ll fall on new issues. And I talk to them all the time. But you never know once you get a discussion going in a meeting where things will actually go. When the stakes are high, you proceed cautiously, even if you’re pretty sure you have the votes on an issue going in.

Back to the Supreme Court Goes the Second Amendment

Looks like SCOTUS has granted Cert in NYSRPA v. City of New York, which challenges the city’s prohibition on removing a licensed firearm from the City. This is great news. It would seem Kennedy’s retirement may have changed things, and this is a case where the stakes are not that high if Roberts goes wobbly, since it would only affect New York City, which already sucks. Here’s hoping for a strong opinion from SCOTUS. The Second Circuit is in serious need of a smackdown on this issue.

Wilson on the Lam?

Seems Cody Wilson has fled to Taiwan. Hey bud, thanks for opening up this whole can of worms and leaving the gun community holding the bag. I appreciate it. I’d say careful who you hitch your wagon to, but often when people warn of that they are working on an understanding that you can help that. Sometimes someone hitches his wagon to you, and I think that was the case here. Then your only choices are to stop pulling, or keep pulling and try to make the best of a bad situation. In politics, if you do the former, you lose. The latter is usually what ends up happening.

Apparently the girl is 16-years old, and if the investigating detective is to be believed, she looks younger than she is. They say they have video of the two at the hotel, which corroborates the victim’s story.

There are two things about Cody Wilson I have believed: first that he’s a narcissistic egomaniac who thinks the rules that apply to ordinary mortals don’t apply to him, and two that he’s a brilliant showman and provocateur. Sadly, all this fits within my understanding of him, so I’m not liable to believe this was a setup. I think events have caught up with him. There is no escaping this issue. It will come up again, hopefully with a different plaintiff. Maybe DD can hang on without Wilson, but I’m doubtful of that. My impression is that if Wilson remains on the lam, or even if he doesn’t and goes to jail, it will greatly complicate the lawsuit to defend 3D printing and sharing of technical documentation, CAD drawings, and plans. While SAF is also on the lawsuit, DD is at the center of the controversy. SAF’s standing is based on: “SAF members reside in the Defendants’ jurisdictions and seek to receive the computer files that Defense Distributed seeks to publish on the internet via its website.”

Winning in Court

We’ve had some pretty significant court wins lately, and I’m hoping it’s just a preview of things to come. The latest is a ruling that there’s a constitutional right to carry openly. This is probably all fallout from the Kennedy retirement. Lower court judges don’t really like to be overturned, and the change is also a signal to supporters if they buck Circuit precedent and rule against the state in a gun rights case, they might get some help from the top. No one wants to stick their neck out.

None of the judges involved here are Trump judges yet. The panel in the magazine case was appointed by George W. Bush and Bill Clinton, with the judge appointed by Nixon dissenting. That is not surprising to me. The Greatest Generation are actually gun unfriendly, for the most part. Silents less so. Boomers even less so.

In the open carry case, it was a Reagan appointee and a George W. Bush nominee ruling in favor of the plaintiff, with another George W. Bush appointee dissenting.

George W. Bush was hardly a perfect President on the gun issue, and Trump won’t be either. But if they put the right judges on the bench they can end up being good enough, and that’s all we need.

Kavanaugh Has a Record on Guns

He was the dissenter in Heller II.

In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.

In Heller, the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi- automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi- automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned afterHeller.)1

Getting protections on semi-automatic rifles would be just what the doctor ordered for states like New Jersey, California and New York. Semi-auto bans are culture killers. No state has ever passed one and come back from it.

Kavanaugh’s approach to the Second Amendment is far better than what we’ve typically seen in lower courts. Several years ago I even suggested that there should be some scholarship published around his approach to help refine it.

There was a lot of speculation that Trump was going to pick Amy Barrett, who would have greatly pleased the SoCo culture warriors, but she would have been an unknown quantity on the Second Amendment. From my point of view, he couldn’t have done much better than Brett Kavanaugh. I know what I’m getting: a judge who’s willing to toss assault weapons bans and gun registration.

Challenge to Vermont’s Magazine Ban

From NRA:

Fairfax, Va.— The National Rifle Association’s Institute for Legislative Action (NRA-ILA) today announced support for a lawsuit brought by Vermont citizens, sporting-goods stores, and shooting clubs to challenge the state’s recent ban on many of the most popular firearm magazines in America.

“The magazines Vermont has now banned are owned by millions of law-abiding Americans,” said Chris W. Cox, executive director of the National Rifle Association’s Institute for Legislative Action. “In fact, nearly half of all magazines in the nation would now be deemed ‘large capacity’ by Vermont.”

At issue in the lawsuit is one of the measures signed into law by Governor Scott on April 11, which bans the possession, sale, purchase, or transfer of long-gun magazines with a capacity greater than 10 rounds and handgun magazines with a capacity greater than 15.

“Vermont claims its new ban will advance public safety, but we know from other States that have experimented with this type of misguided ban that violent criminals are not going to adhere to the ban. The only people really harmed by the ban are the law-abiding citizens who will now be forced to defend themselves, their families, and their homes from violent attack by using sub-standard ammunition magazines. We are pleased to have been able to support the plaintiffs in this fight to vindicate their rights under the Vermont Constitution, and we expect the Vermont Courts to swiftly strike down this plainly unconstitutional ban.”

Challenging through state court is smart. We’ve had much better luck with state court rulings on the Second Amendment and state analogues than we have with the federal courts. Pursuing this via the First Circuit Court system would have a predictable result: we’d lose.

Stevens on Repealing the Second Amendment

I couldn’t have asked for a better gift. First reaction is that this is at least an honest position. I agree most with Glenn Reynolds on this particular op-ed by the former Supreme Court Justice:

1. Calls to repeal the Second Amendment are, despite whatever gyrations the callers go through, tacit admissions that the Second Amendment bars sweeping gun control.

2. Good luck with that, we’re more likely to see an amendment banning abortion pass than one repealing the Second Amendment.

3. The Second Amendment, according to the Framers (and some Supreme Court dictum) recognizes a natural right; repealing the amendment doesn’t extinguish the right.

4. Nothing could be better for the GOP in 2018 and 2020 races than for the Dems to make this an issue.

I think this is right. It’s also a good time to rehash Charles C.W. Cooke’s take on it. The one thing that can save the GOP from its own incompetence, sloth, and back stabbing is the Democrats taking positions far outside the mainstream and that are politically untenable. I actually wish they wouldn’t, because I’d like to put some epic punishment on the GOP, but I fear their chief competitor needs it worse at the moment.

Lawsuits are Back, Baby!

While ANJRPC are filing suit in the 3rd Circuit over Governor Murphy’s reversal of former Governor Christie’s policy of granting carry licenses to those who have demonstrated true threats against them, in the 2nd Circuit, NYSRPA are filing suit over a provision of the SAFE Act that just went into effect requiring licenses to be renewed every 5 years. Most gun owners in in New York State are now felons, without even realizing it. Massachusetts made a similar move some years ago, and yes, people did go to prison over it. Most gun owners are not all that political, and many of them will never hear that their handgun permit, which has been a lifetime permit for years, is now suddenly no longer a lifetime permit. Many others will hear of the law, but see their permit is a lifetime permit, and think “Well, this doesn’t apply to me then.” The idea that people like this belong in state prison is kind of sick. This is not tin-foil-hat paranoia; I can point to cases where this has happened. When Bitter was working for the issue in Mass, even years later, there would still be the occasional felony charge for someone caught with an “expired” lifetime license. Sorry, we’ve altered the deal. Pray we do not alter it any further.

The resumption of lawsuits is a welcome development, and probably represents the belief that the makeup of the Court will soon be changing in our favor. Second Amendment law has not gone well for us since McDonald, for the most part. The midterms may be a bloodbath for the GOP, so I still do worry. I also believe Ginburg and Breyer will only vacate their seats via hearse. Kennedy likewise doesn’t seem remarkably interested in retirement. But it takes cases years to get to the Supreme Court, and it seems likely by the time these lawsuits reach the high court, it will have changed. The question is whether it will have changed for the better.

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