Category: 2nd Amendment

Nelson Lund has been one of the leading law professors in the right to keep and bear arms movement. I very much agreed with his paper that police use needed to be looked at when evaluating restrictions, and believe that is a valuable standard to promote for review of gun control measures. That’s why I’m quite disappointed to see he once endorsed the idea that we can introduce severe financial burdens on the exercise of a right. Granted, this is from a 1987 paper, and perhaps Professor Lund has changed his mind since, but it’s difficult for me to see how an insurance requirement is respectful of the Second Amendment. What other right to we require one to bear insurance to exercise? Insurance companies are in the business of assessing risk, and then essentially betting you that what you’re insuring against will never happen. That risk is going to be higher for someone who’s poor, and lives in a neighborhood they are more likely to need to defend themselves. An insurance measure like this would make it nearly impossible for the poor to exercise their rights under the Constitution, while middle class suburbanites would likely find premiums affordable. I don’t see how that can possibly be constitutional.

h/t Instapundit.

Constitutionally protected, at least in Michigan. The Appeals Court ruled:

While preventing intoxicated individuals from committing crimes involving handguns is an important government objective, the infringement on defendant’s right in the instant case was not substantially related to that objective. We initially note that, at the time of the officers’ entry into the home, and at the time they were actually able to establish the level of defendant’s intoxication, defendant’s possession was constructive rather than actual. Thus, to allow application of this statute to defendant under these circumstances, we would in essence be forcing a person to choose between possessing a firearm in his home and consuming alcohol. But to force such a choice is unreasonable. As the facts illustrate, there was no sign of unlawful behavior or any perceived threat that a crime involving a handgun would be committed….

I’m OK with laws that punish the use of firearms while actually intoxicated, but not for a firearm stored in the home. Such a restriction is probably “common sense” to our opponents, but not to anyone who actually owns a firearm. It’s exactly how the court characterized it.

From an e-mail sent out to the White House e-mail list, from the Vice President, which begins with the sentence:

Taking the oath of office is a serious piece of business.

Put another way, it’s a big ‘effin deal, right Joe? You mean the oath of office which says:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Which refers to the Constitution which says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

If it’s “a serious piece of business,” why don’t you start the first term actually following your oath, Mr. President and Mr. Vice President?

 

Jacob’s reporting a lawsuit is in the works by NYSRPA and NRA. I do hope this is a carefully considered lawsuit that asks narrow questions rather than broad questions. I’ve been wary of taking assault weapons cases forward, but a) New York’s is pretty draconian, and b) circumstances have largely forced this issue. Someone is going to take cases forward, and I’d rather it be with responsible plaintiffs, and not a defense attorney taking bad cases with bad plaintiffs because someone somewhat shady but not prohibited got busted with a gun that had more than 7 rounds in it.

Will the federal courts help the good people of New York? I’d be a liar if I told you I think the odds are better than not that they strike down the law. Much more likely it will be upheld, even in the appeals court. What will the Supreme Court do beyond that? I wouldn’t hazard a guess, because by the time any case gets there, we could be looking at a different Court.

There are several good carry cases moving forward in the courts now, which are much closer to the Supreme Court than any case against the Cuomo gun ban, and for which I feel better about achieving victory. Hopefully the Court will offer some helpful language, and possibly some hints about what issue to press next.

In the case of Shepherd/Moore v. Madigan, Madigan has decided to appeal to the entire 7th Circuit Court to review the case. I don’t know enough about how this works with the 180 day deadline the three judge panel imposed on the Illinois legislature to pass carry laws that are constitutional.

Thanks to Gene Hoffman of CalGuns Foundation for linking the petition. I particularly like this one, so far:

Second, the panel majority held that defendants failed to offer “extensive empirical evidence” sufficient to make a “strong showing that a gun ban was vital to public safety.” Slip op. 13-14. This heightened showing, which approaches strict scrutiny, likewise conflicts with Kachalsky, Masciandaro, and this Court’s en banc decision in Skoien. Thus, if the en banc Court concludes that the Second Amendment extends beyond the home, this appeal asks the Court to decide whether less rigorous scrutiny, and traditional rules of legislative deference, apply in this context.

Let me translate that out of legal talk for you “We just want to be able to say it’s critical for public safety without presenting any real evidence that it is, and have you believe us.” That’s not any kind of heightened scrutiny at all. It’s basically rational basis. I don’t really have time to read the rest right now, but have it.

In 1994, there was considerable effort to try to make the federal assault weapons ban less impactful, which required a lot of compromises. But because of that we got a sunset provision, and nothing nearly as bad as what California has.

To what extent should we, using the Courts as a backstop, be more unyielding this time? Would we be better off with a more draconian ban under the theory the Courts may more easily reach its unconstitutionality? Personally, I think that’s very risky, because I don’t know if I believe the Courts would throw out such a ban, even one as broad and horrid as California’s. It’s a tough call. I’m not sure the Courts honestly buy us much right now on this issue.

John Richardson notes one from the Chicago Sun-Times, where Lisa Madigan speaks about “reviewing her options,” and with the post editorializing they should follow New York’s lead:

The Legislature might even be able to find a way to continue banning concealed carry while rewriting the law to satisfy the appeals court, which said the current law doesn’t rest on sufficient justification. Short of that, the Legislature could consider a narrowly crafted law, such as that in New York, which has concealed carry in theory but does not grant many permits.

This is a lot of ridiculous handwringing and a complete denial of what the political realities are. Governor Quinn’s veto or a pro-gun ammunition bill, and the subsequent override of that veto speaks volumes. The political reality in Illinois is that Todd Vandermyde (NRA’s lobbyist in Springfield) has had concealed carry a hair’s breath away from having enough votes to pass, even over the objection of the politicians from the Chicago area. This ruling does nothing but strengthen his hand, and it’s hard to imagine that this will not now convince a couple more legislators to come over and vote for a shall-issue bill.

The Court has set a deadline. After the deadline, the threat is that Illinois could become Arizona. That’s going to put fear into politicians that have previously been hostile, or lukewarm the shall-issue bill. Both sides have an incentive to compromise, but theirs is stronger. Our fear is that the courts will be unwilling to follow through on their deadline, and the threats are empty. Or that Madigan will appeal to the whole panel and Posner’s ruling will be stayed. Given the strength of Posner’s opinion, I’m not sure that’s a risk they are going to be willing to take. I think this gets us the votes for a shall-issue bill, and probably a stronger one than they would have faced before this case won.

According to an update from NRA board member Todd Rathner, he’s going to be on HuffPo Live today at 4:30 EST. He’s hoping to hear from Second Amendment supporters, so tune in if you can.