NRA Firearms Law Seminar – Panel I

Sorry for the dead air the last few days, but we’ve been on the road. Now we’re at the NRA Firearms Law Seminar, and I am going to try to live blog the seminar, so keep updating if you’re interested in the speakers and topics. First up is Professor Joyce Lee Malcolm:

8:30AM CDT – Joyce Lee Malcolm

Professor Malcolm starts out with the history of British gun control. It’s amazing how their gun control seems to parallel ours up until fairly recently, only with the British always being a step ahead of us on the way down the slippery slope. British gun control started with World War I, when the government took over many aspects of British life. After the war, they were largely concerned with two things: anarchists and bolsheviks, along with a lot of young and angry men returning from the war. British continued restrictions on gun ownership for self-defense in the 1950s and 1960s, including their “offensive weapons” law, which essentially makes self-defense impossible. It was two mass shootings in Hungerford and Dunblane, which lead to the current handgun ban. That’s lead to the ridiculous situation where the British Olympic Pistol team being unable to train in their own country.

Malcolm goes into the debates that surrounding the restricting of “offensive weapons” in Britain, and relays a story of an MP who knew a woman who carried a knitting needle, and asked proponents of the legislation whether that woman would go to prison for using it on an attacker, as she once did. The MP answered in the affirmative. She also tells the story of a man who was attacked on the tube, draw a cane sword and stabbed his attacker. He was instantly arrested, but it turned out that they had not added cane swords to the list of “offensive weapons,” which Parliament, of course, quickly remedied.

The zeitgeist of the British elite is that the government will protect you. She reports that the BBC even published a guide to citizens about what was allowed, which advised shouting “Call the police!,” if one was attacked, rather than “Help!,” because “Help!” might encourage someone to intervene and harm the attacker. They never view it as a legitimate thing to use deadly force against an attacker, or even very vigorous force. The authorities and elite do not even use the term “self-defense” anymore. It is called “violent force.”

Has it made the British people safer? In 2009, they had the highest victimization rate of any country in Europe. There are people who gets robbed and burglarized over and over, because the criminals know their victims are powerless to stop them. Meanwhile in the United States, violent crime has decreased substantively while the number of firearms and firearms in public has risen.

9:10AM CDT – Steven Halbrook, Ph.D.

Steve Halbrook’s seminar is “Void Where Verboten: Constitutional Challenges to Firearms Prohibitions.” He begins by speaking about how cases had to be argued prior to Heller and McDonald, and giving some background on the professionalization of firearms law. I’ve seen that in just how much this seminar has grown since I’ve been attending it, and I only started post Heller. As Glenn Reynolds will speak to over lunch, the Second Amendment is becoming an ordinary part of Constitutional Law.

Halbrook classifies the actions of lower courts as “massive resistance,” when it comes to how it’s treating the two Second Amendment cases. One exception to that has been Tyler v. Hillsdale County Sheriff’s Dept. (6th Circuit, 2014), where strict scrutiny was applied to a man who was committed while going through a nasty divorce many years ago, but had been fine since. The Court ruled that the law was not narrowly tailored. The judge in the case very eloquently rejected intermediate scrutiny, which has been what the courts have mostly used to gut the intent of Heller and McDonald.

Halbrook gives an update on Heller II, where the DC Circuit upheld the ban on “assault weapons.” and magazine ban. The surprising thing about that case was that the court found that these weapons were in “common use,” but were nonetheless not worthy of constitutional protection. He notes that in the case, they made extensive use of Brady testimony before DC Council, when they originally passed the law. Of course, that testimony was pretty much all nonsense.

Halbrook also notes that DC has argued, on remand, that the basis for imposing registration was so that officers would know whether there was at the scene if they were responding. The only problem is DC got their talking points from the Legal Community to Prevent Gun Violence (LCPGV), and never bothered talking to the police. It turns out the police don’t bother checking the registry before responding to calls. It’s not part of their procedures. Halbrook notes that the “assault weapon” issue is still pending in that case.

Halbrook speaks of the cases he’s arguing in NY, CT, and MD, humorously arguing one of the judges said “You mean to tell me the Glock I keep by the bedside, with a 15 round magazine, isn’t protected by the Second Amendment?” So he’s cautiously optimistic for that one. He noted things did not go that well in the 2nd Circuit (which encompasses New York and Connecticut). He notes the Connecticut case is the first where they have argued that semi-automatic firearms are more deadly than machine guns because semi-automatic fire is more accurate. “So why don’t they ban sights?,” notes Halbrook, “It was Dan Malloy’s legal team that came up with that argument.”

Shifting the topic to bearing arms, and not just keeping them, Halbrook notes why Heller essentially assumed there was a right to bear arms outside the home, having mentioned hunting, self-defense, and other activity outside the home. Nonetheless, that didn’t stop the 4th Circuit from arguing:

One the question of Heller‘s applicability outside the home environment, we think it prudent to await direction from the Court itself.

Also, the Maryland Supreme Court, in Williams v. State:

If the Supreme Court, in dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.

Williams was appealed to the Supreme Court, but they denied certiorari.

Next up will be Panel II. I will be liveblogging that in a new post.