Category: 2nd Amendment

Eugene Volokh discusses the issue. I’m sorry to say, because I otherwise think Eugene Volokh has made great contributions to the Second Amendment, but I really think this kind of concession is unhelpful to those of us who want a broad and meaningful Second Amendment right.

I couldn’t disagree more that such limitations are constitutional, at least as far as magazines holding more than ten rounds are commonly used and possessed by law-abiding citizens. Additionally, every state law limiting capacity exempts the police, who use them for self-defense the same as civilians do. For someone who has three intruders break into their house, and runs her magazine dry before stopping her attackers, that person’s Second Amendment right might not as well have existed at all if the state may arbitrarily limit her magazine capacity to ten rounds.

It may, under most circumstances, be a relatively light burden on the right, but I wish Professor Volokh would not concede that there’s a state interest in restricting magazine size to even balance against whatever minor burden it may place on Second Amendment rights. The very fact that police are exempted should call into question the motives in regards to enacting such legislation, which is transparently a hostility toward the concept of an armed civilian population.

We should not concede any state interest here, and then encourage the courts to take an interest balancing approach, where they analyze the burden on the right, and weigh that against the state interest. We’ve seen so far that those kinds of interest balancing approaches will always be weighed in favor of the state when Second Amendment rights are involved.

Firearms with magazine capacities over ten rounds have been commonly selected by civilians and police alike for self-defense virtually since the technology became available, more than a century ago for rifles, but more recently for handguns. It’s not the place of the courts to determine whether such preferences are rational or not. The state may simply not arbitrarily apply these kinds of limits if the Second Amendment, as a right of the people, is to have any real meaning.

Richards is one of the other cases being appealed through the 9th Circuit in regards to carry. The decision can be found here. The one dissenting judge in Peruta also noted he would have voted to uphold the “good cause” requirement, but agreed with the majority in this case because Pretua is controlling. The suit in Richards was against Yolo County, in the middle of the state.

h/t to a reader who emailed a link to the Calguns forum.

UPDATE: Anyone have anything on the Hawaii case? Looking now.

UPDATE: SAF’s press release on the case.

John Richardson notes that late Friday, the 9th Circuit Court of Appeals stayed the mandate in the Peruta case. It’s worth noting that San Diego already agreed to start issuing on a shall-issue basis. I was very intrigued with Dave Hardy’s line of thinking:

Quaere: since the Defendants have announced they will issue CCW permits to all law-abiding folks, is there even a “case or controversy” left, or is the case moot?

Good question. What happens from here will be interesting. Hopefully the Court here just wants to appear to be reasonable, but will find that neither party has any standing to intervene. No state law was challenged here, only the sheriff’s interpretation of “good cause.”

Glenn Reynolds notes in USA Today:

Overall, the trend of the past couple of decades seems to be toward expanding gun rights, just as the trend in the 1950s and 1960s was toward expanding free speech rights. America has more guns in private hands than ever before, even as crime rates fall, and, after a half-century or so of anti-gun hysteria, the nation seems to be reverting to its generally gun-friendly traditions.

I agree, and it’s good to be optimistic. But it’s also worth noting that we’re one death or retirement away from losing the Second Amendment entirely. Once the lower courts get the green light, they’ll reduce it to a meaningless right, and the Supreme Court will willingly go along with it. Remember, right now, in most federal circuits, the Second Amendment only means a right to have some kind of handgun, but not any type of handgun, in the home, and even that being subject to severe requirements, limitations, and qualifications. At this point, the Second Amendment may be “ordinary constitutional law” as Prof. Reynolds notes, but it’s far from a meaningful right for a sizable number of American citizens. We still have a lot of work to do, especially in 2014 and 2016.

I guess California and Hawaii going shall-issue is a bridge too far for them, for they are willing to push for an en banc ruling, which would likely reverse Peruta, and put the decision to appeal back in the hands of the NRA, probably sending this to the Supreme Court. They have every cause to be worried, because even now sheriffs are being deluged with concealed carry license applications. The Supreme Court, having rejected several new gun cases this week, probably strengthened the hand of the antis, figuring they can get reversal, and the Supreme Court will decline to review. Unfortunately for us, that is not an improbable outcome.

San Francisco prevails on magazine capacity. Our side is going to appeal in the case, but I think this is going to be a tough slog, and I fear we may lose in the end. Some of our academics, even the ones on our side that are very influential, preemptively surrendered on this issue (unwisely in my opinion), and magazines will end up being a difficult hole to dig out of if we can accomplish it at all.

Many people on the other side of this issue have argued that judges are in no position to decide things like how many rounds one does or doesn’t need for self-defense, or whether a certain firearm has features that ought or ought not to be protected. I actually agree with them on that argument. But our opponents then turn around and argue this is the reason to leave such things in the hands of legislatures, which is where I strongly disagree. That would render the Second Amendment meaningless as a right, which is I suppose their purpose in such an argument. There is another way.

The Heller “common use” language provides a means for taking such decisions out of the hands of judges and legislatures, and putting it with the people, where it belongs. If the people generally choose magazines with more than ten rounds for self-defense, or choose rifles with pistol grips and adjustable stocks, then those are protected arms. Period. Once it’s shown at trial that such magazines and rifles now represent a significant percentage of guns sold in the American marketplace, no further analysis need be required. It is apparent that magazines greater than ten rounds are overwhelmingly what the public is choosing to arm themselves with, so those are protected. End of analysis.

But common use is not the only mechanism by which we can save judges from having to make judgement calls. After all, it’s always possible a legislature can pass a ban on new technology before it ever gets to be in common use. This is where Professor Nelson’s Lund’s assertion that we must also look at police use comes in handy in relieving judges from having to engage in interest balancing. Any law that citizens are subject to that law enforcement agents are not should automatically make justices suspicious of legislative motives in passing such a restriction. A legislature can not ban an arm for supposedly only having criminal use, or overwhelmingly having a criminal use, or being dangerous and unusual, and then turn around and exempt police officers, claiming those officers need those very arms for their own defense. That goes double if those arms are actually in common police use, such as magazines holding more than ten rounds.

Judges don’t need to engage in interest balancing when deciding the Second Amendment. We already have several proposed mechanisms that would allow the right to be evaluated in a more objective and bright-line fashion. We may have to decide how broadly or narrowly we define “common use,” and how judges and legislatures can classify or sub-classify arms, but the pre-existing mechanisms provided by Heller and Professor Lund provide an inherently better, limiting mechanism that obviates the need for any interest-balancing approach required to decide what the magic number is in regards to how many rounds in a magazine are protected, and how many aren’t.

It’s well known that the American Bar Association are a left-leaning organization that is institutionally anti-gun. But just how institutionally anti-gun? Well, they are having a symposium in Philadelphia that essentially invites no one who is any kind of expert on the current state of Second Amendment law, despite the fact that we have at least one local expert, and several others that aren’t too far away. The closest they come is Erwin Chemerinsky, who as far as I know has only published one very brief law review article on the subject that really breaks no new ground on the subject. The only other bit of legal writing on the Second Amendment I can find was his Amicus Brief before the Heller Court, which he co-authored with Professor Adam Winkler, in support of the District of Columbia. Their brief argued such things that even if the Second Amendment is an individual right, unlike any other right it may be subject to essentially no higher scrutiny than rational basis review:

Assuming an Individual Right Unrelated to Militia Service, the Text of the Second Amendment and the History of the Right to Bear Arms Support the Application of Reasonableness Review [..] Reasonableness Test Is Consistent with the Text of the Second Amendment, Which Explicitly Acknowledges the Necessity of Government Regulation for Public Safety and Security.

These arguments were rejected, and thus don’t represent the current state of the law. I have no doubt that Prof Chemerinsky is well aware of the current state of Second Amendment law, but let’s not pretend this is anything other than refighting the Heller and McDonald decisions, and commiseration on just how wrong the Supreme Court got it. Meanwhile, next week in Knoxville, there will be a symposium on the Second Amendment that discusses “New Frontiers in the Second Amendment.”

The scary thing in all this? All it would take is one death or retirement out of five for the ABA viewpoint to become law, and for all our gains to end up reversed or minimized into little to no effect. We are essentially walking a dangerous tightrope for the next three years, and that’s assuming we win in 2016, which I’d not bet money on at this point.

The tears of journalists and editors with an axe to grind against the Right to Keep and Bear Arms are sweet indeed, so let us savor.

Delaware Online is concerned for what this could mean for Delaware gun laws, stating that we just can’t have “common sense.” Such hand wringing is unwarranted. In the lower counties CDWLs are effectively will-issue already, and Delaware is also an unlicensed open carry state. That makes the situation different from must other restrictive may-issue states. I’m not sure I’d feel good about challenging Delaware’s law, even if Peruta prevails in the end.

The LA Times is naturally wringing their hands over the ruling, and in the process gets nearly everything wrong.

There are two problems with this conclusion. In 2008, the Supreme Court did rule that the 2nd Amendment protected an individual right to “keep and bear arms” — a decision that upended a long-standing consensus that the amendment was intended only to provide for a “well-regulated militia.”

There was never any such consensus. Research on this topic began in the 1970s, you know, right after the federal government gave people a reason to inquire about the Second Amendment. The consensus of that research was what informed the Heller decision. That consensus only exists in the ignorant minds of the LA Times editorial board, who are not experts on this subject, and don’t even have the barest of educations on it.

Justice Antonin Scalia‘s majority opinion made clear that the case involved only prohibitions on handguns “in the home.”

I don’t think these people even read the Heller decision. I wouldn’t even involve myself in a forum debate with someone this ignorant, to be honest. “Go read the Heller decision in its entirety, and then you might relieve enough ignorance to even have this debate,” is what I would say.

Equally important, Scalia acknowledged that the right to bear arms is “not unlimited.” He specifically noted that “the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the 2nd Amendment or state analogues.

Read the Peruta decision too, while you’re at it. Because the prohibition on concealed weapons still allowed for open carry of firearms, which California law also prohibits. Heller mentioned that as well. Peruta flows from the Heller decision. The editorial board of the LA Times does know how to read, right?

The Brady Campaign seems to be the only gun control group out there to do a formal press release about the Peruta decision, and they essentially say it’s an “aberrant” decision, out of touch with history, and will just allow more people to defend themselves from people beating their heads into the pavement, and isn’t that an awful thing?