Year: 2011

We need more judges like this:

This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake. As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy … A lower-court judge has a special obligation, moreover, to strictly and faithfully follow the lead of the “one supreme Court” established by our Constitution, regardless of whether the judge agrees or disagrees with the precedent.

D.C. believes that its law will help it fight violent crime. Few government responsibilities are more significant. That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime… In the words of the Supreme Court, the courts must enforce those constitutional rights even when they have “controversial public safety implications.”

As I read the relevant Supreme Court precedents, the D.C. ban on semi-automatic rifles and the D.C. gun registration requirement are unconstitutional and may not be enforced. We should reverse the judgment of the District Court and remand for proceedings consistent with this opinion. I respectfully dissent.

Judge Brett Kavanaugh, D.C. Circuit Court of Appeals. Heller v. DC, dissenting.

I believe that Heller II or Heller v. DC is our most significant loss in court to date. It’s being picked up quite heavily by the media, and our opponents are justifiably celebrating. Understand that this is not a District Court loss. Those have become par for the course in Second Amendment cases. This is a loss of an entire federal circuit, and arguably the most important federal circuit. Gene Hoffman had a comment that I think is worth highlighting:

I really wish that people didn’t try to boil the ocean. Any one of the three issues should have had a full and separate case and be brought in the right order…

I think he’s absolutely correct here, and unfortunately this is not the only NRA-backed case that’s flawed in this manner. Benson, challenging the entire kitchen sink of Chicago regulation is similarly flawed. I would also argue that Dick Heller, while a good plaintiff for the original case challenging handgun possession, was a poor choice for going after restrictions on semi-automatic rifles. I believe NRA needs to start being a lot more careful about the battles it’s choosing to fight in Court.

While I believe the case in regards to purchase by 18-21 year olds has merit, I question of the wisdom of going after carry by 18-21 year olds at the same time. Do we really want the courts to understand the full extent of the can of worms they could be opening? We need strong rulings, starting out. What we don’t need are courts getting scared by extraneous issues we can get more easily when the case law looks more solid. Using this example, if you get courts to say 18-21 year olds have Second Amendment rights that can’t be impermissibly infringed, and you can get courts to say that there’s a right to carry, carry for 18-21 year olds flows naturally for that. It’s just not necessary, in my opinion, to bring that suit.

By the same token, I believe pursuing an assault weapons case at this point was highly premature, and said so last year when this failed in District Court. Heller II would have done far better to focus narrowly on the most onerous of DC’s requirements when it comes to the exercise of the core right. I really hope NRA re-examines its legal strategy. At the risk of hurting some feelings at NRA HQ, SAF has a far more coherent and concise legal strategy.

But that said, the greatest thing NRA will do for us, which is absolutely essential, and something SAF cannot do, is to create a political climate where ruling against the Second Amendment is career suicide for judges looking to advance on the bench. We have to get the Second Amendment community obsessed about what federal judges think about the Second Amendment. That is, unfortunately, a tall order. But it is necessary.

It is my honest opinion that if we do not take back the White House in 2012, we’re going to end up with a very weak and nearly meaningless Second Amendment right, that will never mean anything beyond being able to have a handgun in the home, with any manner of obstacles and frustrations being thrown in the way of that being perfectly acceptable by the federal courts. If we can be victorious in 2012, this ruling, as much of a setback as it is, will likely only be a speed bump on the way to turning the Heller II dissent into prevailing legal opinion.

Say what you will about how much George W. Bush sucked for gun rights, and a lot of people make the case, but his judges seem to be the ones who take the Second Amendment seriously. It’s worth noting that Judge Sykes, who wrote the opinion in Ezell, was a Bush nominee. The other two judges were put on the Court by Bush the Elder, and Ronald Reagan. Reagan’s appointments to the Court seem to be more mixed. But Judge Kavanaugh, put on the bench by George W. Bush, was the dissenting judge in this case. From the opinion:

The challenge was on DC’s gun laws as they stand post-Heller. They have been upheld in part and remanded in part:

We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements. We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.

I hope in this case that Heller II stops here, because this is not a good case to move forward, and it’s already done enough damage. Challenging the “assault weapons” provisions of DC’s law was highly premature, especially considering we’re likely to remedy that through Congressional action if we can flip the Senate and the White House.

The record supports the view that basic registration of handguns is deeply enough rooted in our history to support the presumption that a registration requirement is constitutional.

I’m not optimistic that registration requirements will be held unconstitutional. It’s hard to imagine a federal judiciary that doesn’t really like the Second Amendment to rule otherwise. If you look at the core right, as the courts have defined it, it’s difficult to argue how registration infringes on it in a substantial way. Nonetheless the Appeals Court seems to be skeptical about requiring it for long guns.

But the Appeals Court seems to be hanging onto the “longstanding” aspect of the original Heller ruling, and seem to be applying a test that if a law is longstanding, it must therefore be constitutional. This strikes me as extraordinarily weak reasoning, although it was exceedingly weak language from the Court, in my opinion. The Appeals Court’s opinion here seems to be based on the fact that the Sullivan Act is longstanding, and therefore a registration scheme, as applied to pistols, is constitutional.

As between strict and intermediate scrutiny, we conclude the latter is the more appropriate standard for review of gun registration laws.

Couldn’t have seen that coming. Has any court decided that using strict scrutiny is appropriate for anything related to the Second Amendment? Not that I’ve seen. They always find a reason it’s not appropriate. But on to the assault weapons issue, since that is the most curious. There is one bright spot. The Appeals Court found they are in common use:

We think it clear enough in the record that semi- automatic rifles and magazines holding more than ten rounds are indeed in “common use,” as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.

But then proceeded to argue that they were not protected, and restricting them is perfectly constitutional:

Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non- automatic long gun.

They adopted the substitution principle, which was rejected when D.C. made that argument in the original Heller. Basically, because you have access to some firearms in common use, banning other firearms in common use is perfectly OK because of substitution.

Although we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right. As the District points out, the plaintiffs present hardly any evidence that semi-automatic rifles and magazines holding more than ten rounds are well-suited to or preferred for the purpose of self- defense or sport.

Magazines don’t fare any better:

The Siebel testimony moreover supports the District’s claim that high-capacity magazines are dangerous in self-defense situations because “the tendency is for defenders to keep firing until all bullets have been expended, which poses grave risks to others in the household, passersby, and bystanders.”

So they don’t let their police carry them, do they? NRA now has a mission. It needs to overturn the D.C. gun laws through Congressional action, and I think it would be of great benefit if a quip could be added to the bill citing Congress finds this ruling in error. It’s worth noting that none one of the judges on this panel were was the same as those who decided  lone dissenter in the Parker (which then become Heller) case.

I strongly believe the Second Amendment needs to become a litmus test for federal judges. We want the most ambitious of the federal bench fearful to rule against us for the possibility that will be used to prevent advancement to a higher court.

I should note the Court devoted a significant part of their opinion in this case to addressing the dissenting judge in this case. That must mean the dissent is pretty good. We’ll take a look at that later.

Dave Hardy reports that the Supreme Court has refused to hear the case of  State v. Williams. Let’s hope that’s for a reason other than they don’t have the votes for the case to win.