Category: 2nd Amendment

The decision is here. It’s important to note that this is a California state court and not federal court, but since the McDonald decision, the Second Amendment is applicable to the states and state courts are bound to consider it. Well, consider it the California Appeals court did, and decided the right was essentially meaningless, and because an AK-47 is at least as dangerous as a short barreled shotgun, it could be banned, since Heller agreed short barreled shotguns could be banned. Dave Hardy notes:

The inclination of the court is obvious. The situation probably indicates how essential it is to “develop a record” at the trial level. What proportion of firearms are “assault weapons”? One of the answers is that over 20% of current rifle production is by manufacturers who make nothing but AR-platform rifles.

Trial courts are finders of fact, so having trial evidence that these are, in fact, weapons in common use and not unusual (I’d note that Heller says dangerous and unusual, not dangerous or unusual), could help on appeal. I also don’t think one can single out a single model of firearm. I could find plenty of handguns by model or description that are unusual, but few would argue ought to be banned because they fit inside a broader type of gun that’s common. I think you have to consider firearms by functional class, in other words, can you ban or restrict semi-automatic rifles? Bolt action rifles? Lever action? Machine guns? Not by singling out a single model by name, or some obscure feature that doesn’t have any real bearing on how people normally classify firearms.

But then again, I don’t really think the courts give a crap, to be honest. I’ve gotten little indication that most state and lower federal courts, and even most federal circuit court show much interest in seriously evaluating the current state of the law, and making an honest attempt to construct a meaningful right.

Emily Miller talks to Alan Gura about the rejection of Wollard v. Gallagher, who notes there are still a number of cases in the hopper. I’d note that any speculation about why the Court keeps rejecting certiorari for carry cases is just that: speculation. There are a list of reasons a mile long why the Court may not want to grant cert. We’ve speculated on the whys, but reality is we don’t really know. Maybe the Court doesn’t want a carry case. Maybe they want to see how all the circuit courts play out. Maybe the giant spinning wheel of fortune they use to pick cases for the term just hasn’t landed on a carry case yet.* Maybe they don’t have 5 votes to win carry because someone got soft in the mean time. We don’t really know.

* OK, they probably don’t select cases that way.

The Supreme Court has, once again, opted not to weigh in on the issue of carry in regards to the Second Amendment. It would seem like they really don’t want to go there at this point, or perhaps they don’t have the votes in our favor. From SCOTUSBlog:

The Court also granted review of a second case: on the legality under federal law of the owner of a gun selling it to someone else, if the new owner can have a gun legally. That case is Abramski v. United States (12-1493). However, the Court followed its recent pattern of refusing to hear constitutional challenges to gun control laws under the Second Amendment, turning aside a Maryland case seeking to expand the personal right to have a gun beyond the home (Woollard v. Gallagher, 13-42).

The fact that the Supreme Court is completely unwilling to protect your right to actually bear the arms instead of just keeping them should motivate gun owners to get involved in the political fights. It is absolutely clear that you cannot count on the courts, and elections have consequences.

Judge Catherine Blake, a Clinton appointee, has denied a request for a preliminary injunction, allowing Maryland’s new gun control laws to go into place. This is not terribly surprising. The lower courts have generally been unwilling to take the Second Amendment seriously, the the 4th Circuit Court of appeals has hardly signaled they are willing to blaze new ground when it comes to developing Second Amendment case law. I haven’t seen the actual denial, but the article mentions that Judge Blake didn’t seem to consider abridgment of Second Amendment rights to be any big deal. Hopefully this won’t portend how the rest of the case will go.

Given the recent dust-up over certain methods of open-carry activism, I thought it would be worthwhile about talking about where carry law stands, and what legal strategists are trying to accomplish. The next big case the Supreme Court takes is likely going to revolve around the “bear” portion of “keep and bear arms.” We want to get the broadest right possible, but there are complications.

The trouble we run into is that there are several state Supreme Courts have have upheld prohibitions on concealed carry, and many state Right to Keep and Bear Arms provisions specifically allow it to be prohibited or restricted. Now, in many of those instances, the reason that concealed carry was allowed to be prohibited is because open carry was allowed. Historically, in many parts of the country, particularly the South and Southwest, concealed carry was an alarming practice that made people think that the person practicing that carry method was sneaky and up to no good.

So in terms of going the other way, we also have to deal with the fact that a number of states with a strong gun culture either prohibit or restrict open carry. There’s also a long legal tradition in bearing arms that there’s no right to bear arms in a manner or way that’s intended or likely to cause alarm among the population. That number has been dropping, but it’s something that has to be dealt with from a legal point of view if you want to take this issue to court.

The way legal strategists are attempting to reconcile these two traditions is to argue that there is a right to bear, or carry firearms for self-defense, but that the state has an interest in regulating the means by which one may wear a firearm for the purposes of not disturbing or alarming the public. In this theory, states could prohibit either concealed or open carry, but had to allow it in some manner, and could only regulate it in a manner that’s consistent with serving the government’s interest (in other words, they couldn’t regulate in a manner meant to discourage people from carrying generally). This is less than ideal, but when dealing with a long tradition of regulating, rather than prohibiting carrying firearms, is something that has to be dealt with when this is put before judges. Something to think about in the current dust-up currently occurring with certain styles of open carry activism.

Brian Aitken, the man that New Jersey authorities arrested & convicted for legally owning guns while moving, is writing a book, and he need people to pre-order to fund the many costs associated with it. Oh, and the profits will go to funding a Supreme Court appeal. Why is he going the route of writing a book to tell his story?

I don’t know about you guys, but my heart just breaks when Brian says, “My biggest goal with this book is just to put my story on paper so that one day my son can pick it up and read it, and know that I never stopped loving him. So that one day, he’ll know why I wasn’t around when he was young.” Excuse me, I might have something in my eye…

For a conviction that never should have happened and wasn’t violent or remotely to do with his ability to be a good influence on his son, Aitken has not seen his son in years and doesn’t even know the sound of his voice since the state of New Jersey took away his custody rights. He’s hoping that an appeal to the Supreme Court could change that.

His fundraiser serves as his pre-sale, and the e-book starts at $8 with hardcover copies going for $32. He has other donation gifts available, including dinner with him & possibly some of his legal team.

From a legal perspective, his case could be interesting. New Jersey is the outlier with the only conviction he has remaining – possessing the hollow-point ammunition while moving. Even though it’s a criminal case, it’s also the rare one with a completely sympathetic defendant.

Following the result of the Seventh Circuit’s holding in Moore v. Madigan, the Illinois Supreme Court issued a unanimous ruling in People v. Aguilar agreeing with the results. From the opinion:

After reviewing these two lines of authority—the Illinois cases holding that section 24-1.6(a)(1), (a)(3)(A) is constitutional, and the Seventh Circuit’s decision holding that it is not—we are convinced that the Seventh Circuit’s analysis is the correct one. As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the second amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home. Moreover, if Heller means what it says, and “individual self-defense” is indeed “the central component” of the second amendment right to keep and bear arms (Heller, 554 U.S. at 599), then it would make little sense to restrict that right to the home, as “[c]onfrontations are not limited to the home.” Moore, 702 F.3d at 935-36. Indeed, Heller itself recognizes as much when it states that “the right to have arms *** was by the time of the founding understood to be an individual right protecting against both public and private violence.” (Emphasis added.) Heller, 554 U.S. at 593-94.
…
Accordingly, as the Seventh Circuit did in Moore, we here hold that, on its face, section 24-1.6(a)(1), (a)(3)(A) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. Defendant’s conviction under that section therefore is reversed.

A California court rules that there’s no Second Amendment protection for someone carrying a “billy.” In this case a baseball bat with a hole hollowed out and a bolt put through it, presumably for bashing in skulls with greater ease than one can accomplish with hickory alone.

Instead, it appears to us to be a weapon which, by its very nature, increases the risk of violence in any given situation, is a classic instrument of violence, and has a home-made criminal and improper purpose. Likewise, it appears to be the type of tool that a brawl fighter or a cowardly assassin would resort to using, designed for silent attacks, not a weapon that would commonly be used by a good citizen.

This strain of thinking has a long history among the courts in interpreting the right to keep and bear arms. There’s always been a strong bias against the types of weapons you might find wielded by the lower classes.