Category: 2nd Amendment

Go outside to shovel some now, and come back in and the world has changed. I wish every snowstorm accompanied good news like this. The restrictive licensing regime imposed by San Diego County, where applicants have to demonstrate need, has been struck down by the 9th Circuit Court of Appeals, which would effectively make California “shall-issue” if the ruling holds. I can’t believe I just said “California” and “shall-issue” in the same sentence. Congratulations to Clayton for having two of his law reviews cited in the opinion. From Dave Kopel:

The Peruta decision does not strike down California’s statutes about licensing for the carrying of firearms. The decision simply says that the “good cause” requirement may not be interpreted in a manner that disable typical law-abiding citizens from being able to obtain carry permits. The state statute is fine; the way the statute was interpreted by many California jurisdictions is not.

The next step for San Diego would be to petition for en banc review, in front of the whole circuit, and from there, to the Supreme Court, if they choose to hear it. Hopefully this is the next step in bringing the blue states back to America.

UPDATE: All is proceeding as Joe has foreseen.

UPDATE: Bob Owens has a pretty good list of choice quotes from the opinion.

UPDATE: Emily Miller: A big win for NRA. It’s been crickets from the gun control groups. They’ve been trying to tailor a narrative that they win most of the court cases, which is true. But we’re winning the ones that matter.

By now most of you have probably seen the news about the ruling in the 7th Circuit tossing Chicago’s ban on gun transfers and sales within city limits. I think the result in the 7th Circuit speaks in favor of taking this issue to the federal courts. I get pessimistic and gloomy sometimes about our prospects of real protections out of the federal courts, but the 7th circuit rulings stand against my pessimism. They’ve been willing to take the right more seriously than other federal circuits. The Court here reasoned that Chicago could not claim to be discouraging criminal acquisition when it likewise discouraged ordinary acquisition:

But these transaction costs are also borne by law-abiding residents of these neighborhoods, who are equally parochial and may suffer many of the same dangers by crossing into gang-infested territory. So whatever burdens the City hopes to impose on criminal users also falls squarely on law-abiding residents who want to exercise their Second Amendment right.

It’s great to see a federal court calling BS on the longstanding argument that it’s just fine to generally discourage exercise of the right because it also discourages criminals.

This is not surprising news for those of us who do not expect the courts to do much in terms of helping uphold a robust Second Amendment right. According to Judge William Skretny, a George H.W. Appointee, the states get to determine what is and what isn’t useful for self-defense:

Unlike handgun bans elsewhere, which affect weapons commonly used for self-defense, wrote Judge Skretny, New York’s law “applies only to a subset of firearms with characteristics New York State has determined to be particularly dangerous and unnecessary for self-defense; it does not totally disarm New York’s citizens; and it does not meaningfully jeopardize their right to self-defense.”

So can we ban any subset of handguns, like semi-automatics, and that’s just fine by the Second Amendment? But we do get a consolation prize:

Judge Skretny struck down a provision of the law, however, that limits a gun-owner from loading more than seven rounds in a gun at a time, calling it “largely an arbitrary restriction that impermissibly infringes on the rights guaranteed by the Second Amendment.”

It’s all arbitrary. There’s no public safety issue. They are just trying to ban what they can get away with. If the Second Amendment can’t save NY from SAFE, it might as well not even exist in the Bill of Rights.

The oral arguments on this challenge were held this week, and Gene Hoffman has an update.

Dave Hardy looks at the history books and finds the term well-regulated being used in contexts where it unambiguously means well-functioning, orderly, and organized. One of the big turds that Dick Metcalfe stepped on, was to parrot the other side’s distortion that “well-regulated” meant “tightly controlled and subject to much regulation.” Research on this matter has clearly shown that it was not understood that way at the time the Bill of Rights was ratified. It goes back to the analogy, almost a tired one at this point:

“A well-educated electorate, being necessary to the security of a free state, the right of the people to print and read publications shall not be infringed.”

But our opponents don’t want to accept the plain English, even now, long past the point where well-regulated could possibly be interpreted as a tactic endorsement for controls by anyone who actually has honestly done the research.

Growing up, I never had any ideas that the Second Amendment meant anything other than what it plainly says, because I can read. I didn’t find out the words were a controversy until I was an adult, and the audacity of those on the other side, to subvert the plain language, is part of the reason I got into activism. I went through most of the Clinton years not understanding how the Assault Weapons Ban was even remotely constitutional, and wondering why nothing was done about it. When I found out, I became angry.

The law review article by Clayton Cramer, Joe Olson, and Dave Kopel, arguing that knives are just as much deserving of Second Amendment protection as firearms, has just hit the printers. I’d also throw chemical defensive sprays, tasers, and electric stun guns into that mix eventually as well, but one step at a time. Knives are probably among the oldest arms human beings recognize, and currently have far less legal protection than firearms. I can carry a Glock 19 into the City of Philadelphia and there’s nothing the corrupt politicians can do about it. But they absolutely could pinch for for carrying a 3 inch folding knife. Firearms regulation enjoy statewide preemption. Knives and other weapons? Not so much.

Several people have drawn my attention to this Texas A&M professor opining that it’s time to repeal the Second Amendment. These folks have never really engendered the same visceral outrage in me that others who advocate against the Second Amendment do. They at least acknowledge the proper mechanism for having this debate, and understand that the Constitution and Bill of Rights is a meaningful restraint. I get much more annoyed with people who want to treat the Constitution and Bill of Rights like a buffet line, taking from it the parts they find appealing, while leaving the parts they don’t.

I’ve always thought Writ of Mandamus sounded vaguely like the title of a Wagnerian Opera, but it’s essentially an order from a superior court to an inferior court to do something. The case is Palmer v. DC, and it’s a carry case.

[A] case challenging the carry licensing in the District of Columbia. Though DC may license the manner of carry, DC must allow law abiding residents to carry a handgun in public for self defense.

According to the SAF press release:

“We realize this is a difficult step to take,” said SAF Executive Vice President Alan Gottlieb, “but this case has been languishing for 1,475 days, and counting since it was ready for decision. In our case in Moore v. Madigan, challenging the carry ban in Illinois, the trial court took 172 days to rule, and the Seventh Circuit Court of Appeals took 202 days to issue its ruling on the appeal. We have been waiting well over four years for a decision in the Palmer case, which was filed in August 2009, and waiting four more is not an option.”

This would work toward getting us back to a situation where there is a prohibition on carry before the Court, similar to the situation in the 7th circuit, which resulted in a victory. It’s possible that the court doesn’t want to deal with may-issue v. shall-issue, but would rather have a case that involves prohibition. There was an opportunity for that with Illinois’ total prohibition, but the win in Shepherd/Moore at the Circuit Court of Appeals, and Illinois subsequent capitulation, took that off the table for reaching the Supreme Court.