Category: Gun Rights

By David Post over at the Volokh Conspiracy. The comments are all very interesting as well.

UPDATE: One commenter notes:

You guys are really misusing the Marks “narrower” rule. The Marks rule applies in the following situation:

Plurality announces a broad rule. Concurrence says “no, it shouldn’t be that broad– I agree with the result in this case, but would not extend it any further”. In that situation, concurrence is controlling opinion.

It has no application to concurrence that says “I would also announce a broad rule, but I would do it using a completely different rationale that would create a brand new, expansive doctrine that this Court has previously declined to recognize.”

It would not make any sense to recognize as the “controlling opinion” an opinion that takes a position that is going to be rejected 8–1 in the next case.

I suspect that will be correct in the end. I don’t think any lower courts are going to interpret Thomas’ opinion as controlling.

Eugene Volokh has a post explaining standards of scrutiny, and points out it’s not as straightforward as we’d like to believe:

Consider, for instance, what would be the standard of scrutiny for free speech. Sometimes it’s strict scrutiny, as to content-based restrictions on speech that’s outside the exceptions. Sometimes it’s a weak form of intermediate scrutiny, as to content-neutral restrictions that leave open ample alternative channels. Sometimes it’s a strong form of intermediate scrutiny, as to restrictions on commercial speech. As to speech that falls within the exceptions — as it happens, exceptions that were not themselves generated using strict scrutiny — it’s hard even to talk about standard of scrutiny. Is it that for speech that’s within the exceptions (e.g., obscenity, threats, fighting words) the standard of scrutiny is rational basis? Or should we see the standard of scrutiny for sexually themed speech, for instance, as the Miller test, for insults theCohen/Gooding/Johnson test, etc.? Certainly the cases dealing with those exceptions generally don’t even talk about “standards of scrutiny” for the exception.

Professor Volokh also looks at what this means for the Second Amendment, noting that comparisons between other rights and the right to bear arms are a useful exercise, but that it has to be tempered with an understanding that no one right is treated the same way, and they are treated differently for the different purposes they are intended for. This ties in an earlier post by Professor Volokh in regards to a previous post on gun license fees.

While I recognize that other rights have been licensed (marriage and demonstrating), or subject to registration requirements (lobbying), I can’t help but wonder about how constitutional it would seem if it was the state governments under Jim Crow that were doing the licensing and registration. Bringing up Condie Rice’s thoughts on the subject:

During the bombings of the summer of 1963, her father and other neighborhood men guarded the streets at night to keep white vigilantes at bay. Rice said her staunch defense of gun rights comes from those days. She has argued that if the guns her father and neighbors carried had been registered, they could have been confiscated by the authorities, leaving the black community defenseless.

That’s not the country we live in anymore, fortunately, but just as the Court said it was not it’s job to declare the Second Amendment dead letter, the Court also should keep in mind it wasn’t just criminals the founders had in mind when thinking about who We The People needed protection from.

The York Dispatch doesn’t like “mail-order permits,” believing they are a bad policy [and they are Righthaven Collaborators, so I have removed the link]. They bring up the now infamous and ridiculous “Florida Loophole.” They speak as if you can just go online and order the damned things like it’s on Amazon. But I’m wondering if the Dispatch would join us in helping fix the problem, or whether below is just so many words, which I will paraphrase:

Blah blah blah, you can vote sheriffs out of office if you don’t like them.

Gun owners can always fix the character clause, blah blah blah.

People who have Florida licenses are sneaky, blah blah, close the loophole. blah blah.

The character clause is problematic, and the solution is to fix it now. If the character clause issue were fixed, I’d have less issue demanding PA residents hold a PA LTC. My understanding is that any arrest will disqualify you from an LTC is Philadelphia, under the character clause, even if it’s an old arrest from years ago, and charges were never forthcoming. Considering people have been arrested in Philadelphia for doing things like legally carrying guns, only to have charges dismissed or thrown out, this is an issue. Yes, there is an appeals process, but that typically requires hiring a lawyer, and the appeals board in Philadelphia is stacked with people who uphold everything the PPD do. As one Philadelphia area attorney noted:

The Philly government doesn’t want to issue you the state-mandated LTCF, so they will do everything they can to trip up as many people as possible. They know that some percentage of denied applicants will drop it. Some will appeal, but lose. Some will appeal and win, but that’s a smaller number than the total number of applicants, and hey, it’s not like it’s the bureaucrats’ money being pissed away pointlessly, right?

This has to be fixed before I’m even willing to talk about any “Florida Loophole.” The issue is that Philadelphia is routinely abusing its discretion under the character clause. Very few states still allow that level of discretion among their issuing authorities. Perhaps the solution to this is that in PA, we need to spell it out.

Looks like NRA is supporting a federal lawsuit today to overturn Chicago’s ban on gun shops and shooting ranges, and a whole slew of other violations under Chicago’s new ordinance. The federal civil complaint can be found here. It’s civil rights based, obviously:

Jurisdiction is founded on 28 U.S.C. § 1331 in that this action arises under the Constitution of the United States, and under 28 U.S.C. § 1343(3), in that this action seeks to redress the deprivation, under color of law, of rights secured by the United States Constitution.

Seeing that in print related to a subject matter like this is music to my ears (eyes?). The only sad thing is that Daley is being sued in his official rather than personal capacity, but the goal here is to get an injunction, so that doesn’t need to be on the table. So what are they going after exactly? It’s an eight count complaint.

1. Count one goes after the definition of home that’s defined so narrowly.
2. Count two goes after the requirement that they be 21 years of old, arguing it violates the constitutional rights of those adults over the age of 18 but under the age of 21 to keep and bear arms.
3. Count three goes after the ban on gun shops.
4. Count four goes after the ban on shooting ranges.
5. Count five goes after the ban on having more than one operable gun in the home.
6. Count six goes after the unsafe handgun roster that the Police are supposed to maintain under the new ordinance. The complaint argues that the “unbridled discretion” violates the due process clause of the 14th Amendment.
7. Count seven challenges the ban on laser sights.
8. Count eight actually goes after the prohibition on carry outside the home or fixed place of business.

The case is seeking a declaratory judgement, injunctive relief and attorneys fees. Yes King Daley, the Constitutional applies to you too.

I’m not really all that surprised by the Daily Kos embracing gun rights. Markos Moulitsas-Zuniga has been an advocate for the Democrats to dump the gun control crap for a long time. Take a page from the 2006 book he co-authored “Crashing the Gate:”

The Second Amendment pro-gun crowd, an offshoot of the libertarian faction, is one of the few single-issue constituency groups inside the Republican Party, and the National Rifle Association is perhaps the most poerful issue group in the country. There was a time when the Republican Party was their home, as the Democrats worked hard to enact gun-control legislation. But that battle is over, and except for skirmishes in urban jurisdictions, gun control is essentially dead inside the Democratic Party and certainly dead at the federal level.

I’ve never been convinced Markos was a true believer, at least in the sense we are, but he knows what’s winning and losing politics, and he’s never been easy on the Democrats for clinging bitterly to gun control.

At least one of their leaders isn’t just declaring victory after McDonald. This battle through the courts is going to be a long fight. Sometimes we’ll come out on top, sometimes they will come out on top. It’s unfortunate, but I believe the Courts, generally, will allow for more gun control than most of us would like. Probably more, honestly than is done in the vast majority of jurisdictions.

Joe Huffman is continuing his anti-gun cartoon posting theme over at View from North Central Idaho, and notes:

Alan Gura spoke about this some with us bloggers at the NRA convention this year. He is of the opinion the NRA is an expert at legislation and lobbying but that in our current situation civil rights lawsuits are most effective. This is not to say that we can’t have two or more solutions to the same problem but that we should recognize the the problem can be framed multiple ways and that depending upon the framing we change the solution set. And with those changing solution sets it may be that a different set of experts are needed.

I tend to agree that the two tracts are complimentary. I believe the Heller ruling had a serious and positive affect on your average American’s view of gun ownership. I suspect McDonald will add to that. But I think both sets of expertise are going to be needed moving forward. Reason being that I don’t think the federal courts are willing to carve out as broad a right we’d like them to. There are some places I think they will need, shall we say, persuading. Which is the genesis of this idea. My only hope is that the various people of each expertise can find a way to work together.

We’re covering it over on PA Gun Rights. Go see the video there if you’re interested in what Dave had to say before the Committee.