Category: 2nd Amendment

The Illinois handgun carry ban has been struck down by the 7th Circuit Court of Appeals. From Alan Gura’s firm, From NRA, from Volokh. Looks like Posner was in the majority. One justice voted against. I guess Posner is coming around. More to follow.

UPDATE from Bitter: For those of you who can’t access the document for any reason, here are some choice quotes:

Both Heller and McDonald do say that “the need for defense of self, family, and property is most acute” in the home, id. at 3036 (emphasis added); 554 U.S. at 628, but that doesn’t mean it is not acute outside the home. Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home, as when it says that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Confrontations are not limited to the home.

The Second Amendment states in its entirety that “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” (emphasis added). The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.

For the anti-gunners who simply say that the right is outdated and irrelevant:

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

UPDATE: Dave Hardy: Astonishing ruling! What’s kind of sad is that it is astonishing. Dave notes that this ruling effectively sets up the circuit split that will likely lead to a carry case going before the Supreme Court.

UPDATE: Clayton Cramer: “One of the Chicago newspaper articles included a comment by a reader, warning that the streets of Illinois cities will run with blood.  Perhaps…but how could you tell the difference?”

UPDATE: Kevin Baker: “And Then There Were None” Some might say that this is a bit premature, but the politics of this issue in Illinois has been teetering on the verge, and I think this court decision will make things get very real for a lot of the anti-gun folks in the Windy City. The politics of this will play very much in our favor, I think.

There have been three cases working their way up the 9th Circuit, which covers California, Hawaii, and most of the other western states. Dave Hardy has links to oral arguments in all of them. I have not yet had a chance to listen, but today, there was arguments in the case of Mehl v. Blanas, brought to you by the same guy that brought us the <sarcasm>fantastic and victory for gun rights in Silveria v. Lockyer</sarcasm> (I put it in tags, because the attorney who argued that case thinks he really won it). There is a very real chance that this case will make all the hard work done so far come crashing down like a carefully and painstakingly built house of cards.

Apparently in Mehl today, the Attorney for the Appellant started off oral arguments being late to court. I suppose this is “how the pros really handle appellate work.” Firearms attorney Bobbie K. Ross was live tweeting the oral arguments today. At first I was confused as to what case this was, and was not aware Gorski’s case was still out there. Needless to say, fingers should be crossed this case doesn’t cause extensive damage.

Miguel takes a look at exactly what the Second Circuit Court of Appeals has upheld. Yes, judges Katzmann, Wesley, and Lynch (Clinton, Bush Jr., and Obama, respectively), this is the racist claptrap, that sacred “one-hundred-year-old law” that you tacitly endorsed when you declined to “call into question the state’s traditional authority to extensively regulate handgun possession in public.” You know, slavery and Jim Crow were a tradition in many parts of the country until relatively recently too. Time don’t make right.

Yesterday an NRA backed case that challenged San Francisco’s safe storage and ammunition restrictions lost in District Court. Reading the opinion here, I find myself stunned by this:

Plaintiffs’ showing as to the severity of the burdens imposed by section 4512, “The Safe Storage Law,” is only marginally better. As noted above, section 4512 gives San Francisco residents the very set of rights the Heller plaintiff sought and obtained. San Franciscans may lawfully possess handguns in their own homes, may carry them in their own homes at any time, and may use them for self-defense without running afoul of any aspect of the ordinance. Plaintiffs have offered only the possibility that in a very narrow range of circumstances, the delay inherent in rendering a handgun operable or in retrieving it from a locked container theoretically could impair a person’s ability to employ it successfully in self-defense. Even assuming this rises to the level of a “substantial” burden, however, thereby triggering some heightened degree of scrutiny, plaintiffs have not shown the regulation to be overreaching or improper in any way, or that it fails to serve a legitimate governmental interest. Indeed, as noted in Heller itself, nothing in its analysis “suggest[s] the invalidity of laws regulating the storage of firearms to prevent accidents.”

This is disingenuous, and the quote taken from the full context. The full quote from the Heller opinion, in full context, is this:

The other laws Justice BREYER cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at 2849-2850. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.

The majority is refuting justice Steven’s dissenting argument about 18th century laws that mandated storage of excess gunpowder on the top floor of the home, and speaking of safe storage in a context which does not burden the right of self-defense to any real degree. Any honest reading of Heller has to come to terms with the fact that the invalidity of  storage requirements that interfere with self-defense is unambiguously part of Heller‘s holding:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

It is difficult to see how the San Francisco ordinance is materially different from that of the District of Columbia’s. I can accept that on the matter of ammunition restrictions, a judge has some room to suggest that case law is not that well established, and perhaps a preliminary injunction is not appropriate, but regardless of what is stated in Nordyke, which cannot control Heller, any requirement that a firearm be bound by a lock or stored in a way that makes it unavailable for self-defense is pretty unambiguously unconstitutional. The judge here pulls dicta out of context, in an attempt to ignore the core holding in Heller. It is worth noting that the judge in this case is an Obama appointee. Elections have consequences.

Via Jacob, the decision can be found here. The decision will be appealed. In the decision they kind of dabble in the history and tradition argument, without really going into serious analysis, then you get this:

But Plaintiffs’ contention that the proper cause requirement grants licensing officials unbridled discretion is something of a red herring. Plaintiffs admit that there is an established standard for determining whether an applicant has demonstrated proper cause. The proper cause requirement has existed in New York since 1913 and is defined by binding judicial precedent as “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Plaintiffs’ complaint is not that the proper cause requirement is standardless; rather, they simply do not like the standard—that licenses are limited to those with a special need for self-protection. This is not an argument that licensing officials have unbridled discretion in granting full-carry permits. In fact, the State Defendants’ determinations that Plaintiffs do not have a special need for self-protection are unchallenged. Rather, Plaintiffs question New York’s ability to limit handgun possession to those demonstrating a threat to their safety. This is precisely the type of argument that should be addressed by examining the purpose and impact of the law in light of the Plaintiffs’ Second Amendment right.

Plaintiffs’ attempts to equate this case with Heller or to draw analogies to First Amendment concerns come up short.

They go on to conclude the core right is a right in the home, and make analogies to privacy rights, and speak of the home as having high constitutional protections relative to public places, even going so far as to recall rulings that allow obscenity to be possessed in homes, but banned in public.

They then go the traditional route for the lower courts, which is to apply intermediate scrutiny, which of course means the statute in question survives. Can you think of any case where a gun control statute was tossed using intermediate scrutiny? I can think of Ezell, but that was heightened-almost-scrict scrutiny. It seems the courts in these cases believe that if they just rename rational basis to be intermediate scrutiny, using rational basis review somehow becomes OK, as long as you don’t call it that.

Either the lower courts are in for an epic smack down after all these carry cases play out in the lower courts, or taking this issue into the courts is going to turn out to be an epic mistake, and we’re going to end up with a Second Amendment right that is a mish-mash of the worst things the state courts have already done to it. I am sincerely hoping the former is the case.

Our opponents in the gun control movement, when they do try to argue down to the philosophical underpinnings of the gun culture in this country, do little more than display their stunning ignorance of history. I’ll ignore for a moment the utterly false notion that self-defense was never mentioned by any of the founders (Adams mentioned it, several founders carried pistols for self-defense, and it’s mentioned in many state analogues to the 2nd Amendment), and concentrate instead of the notion that militia in the colonial or early republic was anything like the top-down organized instrument of state power that our opponents advocate in their imaginary history of the United States.

A recent publication by Dave Kopel on this very matter was recently published in the American Bar Association’s Administrative and Regulatory Law News (see here if you want the cited version):

Without formal legal authorization, Americans began to form independent militia, outside the traditional chain of command of the royal governors. In Virginia, George Washington and George Mason organized the Fairfax Independent Militia Company. The Fairfax militiamen pledged that “we will, each of us, constantly keep by us” a firelock, six pounds of gunpowder, and twenty pounds of lead. Other independent militia embodied in Virginia along the same model. Independent militia also formed in Connecticut, Rhode Island, New Hampshire, Maryland, and South Carolina, choosing their own officers.

Private militias? Why that sounds to be a bit “insurrectionist,” don’t you think? But not only do our opponents tell us that the founders never conceived a right based on self-defense, they tell us they never conceived a right to arms based on the right of privately organized militias to toss off the yoke of oppressive government!

The events of April 19 convinced many more Americans to arm themselves and to embody independent militia. A report from New York City observed that “the inhabitants there are arming themselves . . . forming companies, and taking every method to defend our rights. The like spirit prevails in the province of New Jersey, where a large and well disciplined militia are now fit for action.”

In Virginia, Lord Dunmore observed: “Every County is now Arming a Company of men whom they call an independent Company for the avowed purpose of protecting their Committee, and to be employed against Government if occasion require.” North Carolina’s Royal Governor Josiah Martin issued a proclamation outlawing independent militia, but it had little effect.

This sounds a lot less like a top-down, government sanctioned movement, than a bottom up, grassroots rebellion. That is indeed what it was to anyone who is not a fool or self-deluded. I encourage you to read the whole thing. It’s basically a good summary of what you may find in a larger, more detailed book on the subject, “Paul Revere’s Ride,” by David Hackett Fischer. From the book:

As the Lexington militia gathered on the Common, Captain Parker exchanged a few words with each individual. He did so less as their commander than as their neighbor, kinsman, and friend. These sturdy yeomen did not expect to be told what to do by anyone. They were accustomed to judge for themselves. Many were hardworking dairy farmers in a community that was already known as a “milk town” for the Boston market. Their ages ranged from sixteen to sixty-six, but most were mature men in their thirties and forties. They were men of property and independence who served on juries, voted in town meetings, ran the Congregational church, managed their own affairs, and felt beholden to none but the Almighty.

This does not comport with the top-down organization, more similar to the modern National Guard, that our opponents imagine colonial militia were like. It is more akin to that of a modern day volunteer fire department, only in an age where that was everyone’s responsibility, and not just the few who chose to serve. It’s pretty clear there was very little or no official state sanction during the early days of the American Revolution, when most of the fighting was being done by independent militias, controlled more by civil society than by government.

If our opponents chose to argue that our modern society is devoid of the kind of “republican virtue” our founders thought was necessary for a free people, they’d likely find a lot of agreement from our side. We are not the same society, and that is one reason we’ve chosen to argue the self-defense aspects of the right more than the civic aspects of an armed population. It’s also part of the reason this country will probably, from here on out, always have some degree of gun control, the forms of which today were largely alien to the founding period.

So why do many in the gun control movement feel a need to imagine history? I think it is precisely because they are fundamentally uncomfortable with the republican virtues of this country’s founding. They are more at home with the virtue of a Bismarckian state rather than a Lockean republic. They are children of social democratic virtues; of state, central planning, and command economies, which would have been utterly foreign and lamentable to people schooled on Locke, Smith, and Montesquieu. But regardless of the values they cherish, or their pursue, it is simply wrong to project social democratic values on what was a very republican age. It is more honest to insist they are simply old, tired and worn ideas who’s time is up. There was a time when progressives indeed argued that. Perhaps it says something about their relative influence on the culture today that they feel they must couch their foreign ideas in the flag of American republicanism in order to find any appeal among the people.

Steven Halbrook notes that the 5th Circuit Court of Appeals got the history wrong, but I hadn’t considered this one silver lining:

The government thus asserted that the plaintiffs were not injured and lacked standing. The court disagreed, finding the inability to purchase a handgun from a dealer to be a concrete, particularized injury.

So the Second Amendment protects some right to purchase a handgun in the 5th Circuit. We think such things are obvious, and they should be, but these are the courts we’re talking about. Halbrook also points out the skewed logic of the decision:

Now for the irony of this exercise, the law allows a person aged 18 to 20 to buy a handgun from a non-dealer and allows a person aged 21 or over to buy a handgun and give it to a person aged 18 to 20. Thus, since persons aged 18 to 20 are too untrustworthy to have Second Amendment rights, they do not have to go through a background check when obtaining a handgun. However, anyone purchasing a firearm from a dealer is subject to a background check for criminal convictions, mental commitments and other prohibited categories giving rise to a denial to purchase firearms. The court rejected the argument that this undermines the reasonableness of the fit between the restriction and the objective to keep firearms out of the wrong hands.

The courts have been basically looking for any excuse not to toss any laws out under the Second Amendment. What other right should work this way?

NRA v. BATF. There is an impression that the Fifth Circuit is pro-gun, because it was the first to rule that the Second Amendment is an individual right. But it’s also worth noting that they upheld the PFA restrictions even though they offer the barest of due process protections. I will have more analysis of the opinion later, when I have time to read it.

UPDATE: Just giving a quick skim, it’s the same sad story. “We are very uncomfortable with this right, so we will go ahead and apply a low level of scrutiny to this which we will call intermediate, which, of course, is just perfect for upholding this statute.” The decision quotes heavily from Saul Cornell, the Joyce Funded scholar who attempted to undo the Standard Model of the Second Amendment.

UPDATE: Some discussion over at Volokh in the comments.

Professor Johnson has a post up speaking of borrowing the “undue burden” concept from abortion rights in order to protect Second Amendment rights, much, I’m sure, to the horror of Justice Breyer if he were to read it.