2nd Amendment – Page 12 – Shall Not Be Questioned

Petition Being Considered in Drake v. Jerijian

Today the Supreme Court will be deciding whether or not to grant certiorari in the case of Frake v. Jerijian, challenging New Jersey’s restrictive handgun carry licensing regime:

Issue:Â (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a â€œjustifiable needâ€ for doing so.

The Court could announce as early as Monday what they decided. Obviously this is one to watch, because the Court is running out of cases they could use to decide this issue. It’s not certain yet what the fate of the 9th Circuit cases are going to be yet, and so it is also uncertain whether the Supreme Court will get a stab at those as well.

SAFE Act Upheld In Sloppy Lawsuit

Last week a judge of the New York Supreme Court held that the SAFE act was constitutional. This danger hit the news last year when both Schultz and NYSRPA were filing their suits against SAFE. It was run by a pro-se plaintiff who enjoys filing lawsuits for what he views as constitutional violations. These people are the greatest threats to our Second Amendment rights out there;Â even more than the anti-gunners.Â Robert Schultz quite possibly just lost for New Yorker’s any substantive right which they can claim against SAFE. The New York Rifle and Pistol Association suit is still in play, but existing bad precedent greatly complicates matters.Â You can read the opinion here:

The complaint and memoranda submitted by plaintiffs are unclear as to other bases for challenging the SAFE Act. For instance, in the complaint plaintiffs allege that the Safe Act arguably infringes on rights protected by the Second AmendmentÂ ofÂ the United States Constitution and Civil Rights LawÂ Â§4.Â Plaintiffs also assert that the statute arguably infringesÂ onÂ rights guaranteed byÂ NewÂ York Constitution ArticleXII. However, Legislative enactments enjoy a strong presumptionÂ ofÂ constitutionality and while the presumption is rebuttable any invalidity must be demonstrated beyond a reasonable doubt (Matter ofÂ McGee v Korman,Â 70 NY2d 225,231 [1987]). Here, plaintiffs have failed to demonstrate in what manner the SAFE Act infringes upon their asserted rights.

In other words, he failed to make his case. These things are really left up to professionals and experts, and not rank amateurs out to make a name for themselves or to stroke their own egos. I’m normally very amiable towards amateurs, but this the practice of law is not one of those cases.

Harvard Law Review: New Issues in Gun Rights

Appearing here, with articles by Dave Kopel, Alan Gura, Joseph Blocher, and Darrell A.H. Miller. “Comment on Peruta and Other Recent Cases.”

I’ll have a news link post a little later, but I wanted to put this one out there because it’s a lot of good stuff. I haven’t read it yet, and probably won’t have time for a bit.

Otis McDonald Passes

He was a civil rights pioneer by being willing to be a face for the individual right to bear arms in a major Supreme Court case, so it is with a sad heart that I see Otis McDonald passed away at the age of 79.

Sebastian & I were fortunate to meet him and enjoy dinner with him, his wife, and many others involved in the landmark case the night before it was heard in the Supreme Court. I know that many who were close to him could use our thoughts and prayers.

Colorado Gun Control on Trial

The case that challenges Colorado’s new gun control laws, including the magazine ban, goes to trial today, and is expected to continue for several weeks. The judge in this case is the Hon.Â Marcia Krieger, who was put on the bench by George W. Bush, which I would say offers some possibility the Second Amendment will be taken seriously. I think a magazine ban, especially one that sets the limit at 15, is going to be a tough sell to federal judges, but I’m going to hope she’ll see through the state’s smokescreen over public safety and properly declare it unconstitutional, since magazines that hold more than fifteen rounds are in common use for lawful purpose, and are also not restricted for the police.

9th Circuit Upholds Storage Requirement & Hollow Point Ban

The 9th circuit upholds a requirement that guns be locked up. There’s more here over at the Volokh Conspiracy. Once again, I’m disappointed to see Prof. Volokh promoting balancing tests:

The court also upheld a ban on sale of hollow-point bullets, though it stressed that the ban didnâ€™t prohibit possessing or using hollow-points, or bringing them in from neighboring cities. Here, the burden does seem likely to be less than substantial …

Would we argue that a ban on newspapers or books being sold in the city is a less substantial burden, because they could still be bought outside the city and brought in? No, that would be properly ruled unconstitutional. I will repeat that endorsing this kind of burden analysis, even if it is used in other rights, is a green light for the courts to gut any substantive protection, because the courts will always balance in favor of the government. The courts, who have zero expertise in self-defense (very few would have ever taken a course), are in no position to make these calls, and shouldn’t be encouraged to make them.Â Limiting my magazine size, restricting my access to effective ammunition, and adding precious time between me and my firearm are not light burdens, and shouldn’t be treated as such.

We have to advocate a different approach if we want this right taken seriously. I’m a great fan of Professor Nelson Lund’s approach, on examining police use and practices.

“I Sure Wish They Would”

On Friday, Bill Mahr complained to Democratic Congressman Keith Ellison that “your party come out against the Second Amendment.” Ellison’s response? “Bill, I sure wish they would. I sure wish they would.”

After talking about how much he wished the Democratic Party he is a member of would come out and actually oppose the very existence of the Second Amendment, Ellison finished up the segment with some false figures to make the case for gun control – figures debunked today by Andrew Johnson.

Ninth Circuit Hands Down Baker Ruling

As expected, the 9th Circuit has handed down a decision in the case of Baker v. Kealoah. There aren’t really any surprises. The decision is vacated and remanded back to the lower court in light of Peruta. I should note that the decision does not yet make Hawaii shall-issue. Hawaii still has a chance to appeal the ruling en banc in front of the entire 9th Circuit. Even if they decline to appeal, the case still has to go back to the lower court, and the lower court has to enjoin the State of Hawaii. It’s not clear, in that instance, whether Hawaii will become a shall-issue state, or whether they’ll be enjoined from enforcing their concealed weapons laws as a whole, making the situation more like Illinois than like California. We shall see.

Civil Rights Victory in Delaware

In response to a question from the Third Circuit Court of Appeals, The Delaware Supreme Court has ruled in Doe v. Wilmington Housing Authority that Section 20 of the Delaware Constitution, passed in 1987, is more extensive than 3rd Circuit precedent recognizes for the 2nd Amendment, which does not extend outside the home. Delaware’s Section 20 explicitly recognizes a right to carry outside the home for self-defense.

At issue is Wilmington Housing Authority’s revised regulations on guns, which prohibits carrying firearms in common areas. The Delaware Supreme Court argues they violate Section 20 of the Delaware Constitution. The Court uses intermediate scrutiny here, but they do a much more honest analysis at that level than most courts, which have really just instituted rational basis review under the guise of intermediate scrutiny. Here’s the Court:

To satisfy its burden, WHA argues that it has an important governmental interest in protecting the health, welfare, and safety of all WHA residents, staff, and guests who enter onto WHA property. WHA argues that an accidental discharge of a firearm may have serious fatal consequences and that dangers inhere in the increased presence of firearms. But these same concerns would also apply to the area within any apartmentâ€”interior locations where the WHA concedes it cannot restrict the possession of firearms for self-defense. The Revised Policy does more than proscribe the unsafe use of a firearm. It also prohibits possession in the public housing common areas except where the firearm is being transported to or from an apartment. In this context, WHA must show more than a general safety concern and it has not done so.

In Griffin v. State we explained that an individualâ€™s interest in the right to keep and bear arms is strongest when â€œthe weapon is in oneâ€™s home or business and is being used for security.â€61 Residents have a possessory interest in both their apartments and the common areas. And although Residents cannot exclude other residents or the public from the common areas, their need for security in those areas is just as high for purposes of Section 20 as it would be inside their apartment or business. The common areas are effectively part of the residences. The laundry rooms and TV rooms are similar to those typically found in private residences; and the Residents, their families, and their guests will occupy them as part of their living space.

The Court court had before it two questions: was the ban on firearms in common areas of public housing constitutional under the Delaware Constitution. They answered that no, it was unconstitutional. The second question is whether they could require copies of permits and licensing other documentation in support of enforcing their regulation, and the Delaware Supreme Court answered that that provision was overbroad, and was likewise unconstitutional under Section 20:

The Reasonable Cause Provision was enacted, together with the Common Area Provision, by the WHA in response to McDonald. Because the unconstitutional Common Area Provision is not severable as a matter of Delaware law, the Reasonable Cause Provision which enforces it is unconstitutional and overbroad as well. For that reason, we answer the second certified question in the negative.

If only ever court did intermediate scrutiny analysis like the Delaware Supreme Court just did it, we might be in much better shape. Congratulations Delaware, you have a Supreme Court that takes your rights seriously.

Understanding SCOTUS

Sebastian has been really busy the last couple of days, but he noted that quite a few people shared links to Dave Hardy’s explanations for the actions of SCOTUS in regard to the Sunnyvale mag ban.