Category: 2nd Amendment

Looks like SCOTUS has granted Cert in NYSRPA v. City of New York, which challenges the city’s prohibition on removing a licensed firearm from the City. This is great news. It would seem Kennedy’s retirement may have changed things, and this is a case where the stakes are not that high if Roberts goes wobbly, since it would only affect New York City, which already sucks. Here’s hoping for a strong opinion from SCOTUS. The Second Circuit is in serious need of a smackdown on this issue.

Seems Cody Wilson has fled to Taiwan. Hey bud, thanks for opening up this whole can of worms and leaving the gun community holding the bag. I appreciate it. I’d say careful who you hitch your wagon to, but often when people warn of that they are working on an understanding that you can help that. Sometimes someone hitches his wagon to you, and I think that was the case here. Then your only choices are to stop pulling, or keep pulling and try to make the best of a bad situation. In politics, if you do the former, you lose. The latter is usually what ends up happening.

Apparently the girl is 16-years old, and if the investigating detective is to be believed, she looks younger than she is. They say they have video of the two at the hotel, which corroborates the victim’s story.

There are two things about Cody Wilson I have believed: first that he’s a narcissistic egomaniac who thinks the rules that apply to ordinary mortals don’t apply to him, and two that he’s a brilliant showman and provocateur. Sadly, all this fits within my understanding of him, so I’m not liable to believe this was a setup. I think events have caught up with him. There is no escaping this issue. It will come up again, hopefully with a different plaintiff. Maybe DD can hang on without Wilson, but I’m doubtful of that. My impression is that if Wilson remains on the lam, or even if he doesn’t and goes to jail, it will greatly complicate the lawsuit to defend 3D printing and sharing of technical documentation, CAD drawings, and plans. While SAF is also on the lawsuit, DD is at the center of the controversy. SAF’s standing is based on: “SAF members reside in the Defendants’ jurisdictions and seek to receive the computer files that Defense Distributed seeks to publish on the internet via its website.”

We’ve had some pretty significant court wins lately, and I’m hoping it’s just a preview of things to come. The latest is a ruling that there’s a constitutional right to carry openly. This is probably all fallout from the Kennedy retirement. Lower court judges don’t really like to be overturned, and the change is also a signal to supporters if they buck Circuit precedent and rule against the state in a gun rights case, they might get some help from the top. No one wants to stick their neck out.

None of the judges involved here are Trump judges yet. The panel in the magazine case was appointed by George W. Bush and Bill Clinton, with the judge appointed by Nixon dissenting. That is not surprising to me. The Greatest Generation are actually gun unfriendly, for the most part. Silents less so. Boomers even less so.

In the open carry case, it was a Reagan appointee and a George W. Bush nominee ruling in favor of the plaintiff, with another George W. Bush appointee dissenting.

George W. Bush was hardly a perfect President on the gun issue, and Trump won’t be either. But if they put the right judges on the bench they can end up being good enough, and that’s all we need.

He was the dissenter in Heller II.

From NRA:

Fairfax, Va.— The National Rifle Association’s Institute for Legislative Action (NRA-ILA) today announced support for a lawsuit brought by Vermont citizens, sporting-goods stores, and shooting clubs to challenge the state’s recent ban on many of the most popular firearm magazines in America.

“The magazines Vermont has now banned are owned by millions of law-abiding Americans,” said Chris W. Cox, executive director of the National Rifle Association’s Institute for Legislative Action. “In fact, nearly half of all magazines in the nation would now be deemed ‘large capacity’ by Vermont.”

At issue in the lawsuit is one of the measures signed into law by Governor Scott on April 11, which bans the possession, sale, purchase, or transfer of long-gun magazines with a capacity greater than 10 rounds and handgun magazines with a capacity greater than 15.

“Vermont claims its new ban will advance public safety, but we know from other States that have experimented with this type of misguided ban that violent criminals are not going to adhere to the ban. The only people really harmed by the ban are the law-abiding citizens who will now be forced to defend themselves, their families, and their homes from violent attack by using sub-standard ammunition magazines. We are pleased to have been able to support the plaintiffs in this fight to vindicate their rights under the Vermont Constitution, and we expect the Vermont Courts to swiftly strike down this plainly unconstitutional ban.”

Challenging through state court is smart. We’ve had much better luck with state court rulings on the Second Amendment and state analogues than we have with the federal courts. Pursuing this via the First Circuit Court system would have a predictable result: we’d lose.

I couldn’t have asked for a better gift. First reaction is that this is at least an honest position. I agree most with Glenn Reynolds on this particular op-ed by the former Supreme Court Justice:

1. Calls to repeal the Second Amendment are, despite whatever gyrations the callers go through, tacit admissions that the Second Amendment bars sweeping gun control.

2. Good luck with that, we’re more likely to see an amendment banning abortion pass than one repealing the Second Amendment.

3. The Second Amendment, according to the Framers (and some Supreme Court dictum) recognizes a natural right; repealing the amendment doesn’t extinguish the right.

4. Nothing could be better for the GOP in 2018 and 2020 races than for the Dems to make this an issue.

I think this is right. It’s also a good time to rehash Charles C.W. Cooke’s take on it. The one thing that can save the GOP from its own incompetence, sloth, and back stabbing is the Democrats taking positions far outside the mainstream and that are politically untenable. I actually wish they wouldn’t, because I’d like to put some epic punishment on the GOP, but I fear their chief competitor needs it worse at the moment.

While ANJRPC are filing suit in the 3rd Circuit over Governor Murphy’s reversal of former Governor Christie’s policy of granting carry licenses to those who have demonstrated true threats against them, in the 2nd Circuit, NYSRPA are filing suit over a provision of the SAFE Act that just went into effect requiring licenses to be renewed every 5 years. Most gun owners in in New York State are now felons, without even realizing it. Massachusetts made a similar move some years ago, and yes, people did go to prison over it. Most gun owners are not all that political, and many of them will never hear that their handgun permit, which has been a lifetime permit for years, is now suddenly no longer a lifetime permit. Many others will hear of the law, but see their permit is a lifetime permit, and think “Well, this doesn’t apply to me then.” The idea that people like this belong in state prison is kind of sick. This is not tin-foil-hat paranoia; I can point to cases where this has happened. When Bitter was working for the issue in Mass, even years later, there would still be the occasional felony charge for someone caught with an “expired” lifetime license. Sorry, we’ve altered the deal. Pray we do not alter it any further.

The resumption of lawsuits is a welcome development, and probably represents the belief that the makeup of the Court will soon be changing in our favor. Second Amendment law has not gone well for us since McDonald, for the most part. The midterms may be a bloodbath for the GOP, so I still do worry. I also believe Ginburg and Breyer will only vacate their seats via hearse. Kennedy likewise doesn’t seem remarkably interested in retirement. But it takes cases years to get to the Supreme Court, and it seems likely by the time these lawsuits reach the high court, it will have changed. The question is whether it will have changed for the better.

At least some courts have been willing to take the Second Amendment seriously. As Dave Hardy mentions, we’re getting so many new levels of scrutiny from the Second Amendment, one can hardly keep up with them all. But at least the Illinois Supreme Court was willing to entertain the idea that the Second Amendment deserves something better than a dressed up version of rational basis review.

Eugene Volokh’s analysis can be found here. The court seems to have correctly discerned that the reason for such a law has more to do with discouraging people from exercising their rights than with public safety.

A federal court has ruled that the prohibition on domestic violence misdemeanants from keeping and bearing arms is constitutional. This is not surprising, since the Supreme Court has basically signals to the lower courts that they are free to ignore Heller and McDonald, and that they need not fear having their ruling, however awful, overturned. Here’s things I wish courts would consider:

• There’s a difference in degree of infringement between someone who already owns firearms and being forced to give them up, and someone who does not own firearms not being able to buy any for the duration of the prohibition.
• While the Lautenberg Amendment may not be an ex post facto law, the application of the prohibition on anyone who was ever convicted is a violation of their right to due process under the 5th and 14th Amendments.
• Lifetime prohibitions triggered by misdemeanor convictions should always be regarded with considerable suspicion in regards to constitutionality.
• Prohibitions should be something applied by judges as part of a sentence. The retroactive application of a prohibition is always a due process violation, even for felons. A defendant has to know which of his rights are on the line at the time he is accused and tried.

I don’t think applying a temporary prohibition to misdemeanants is on its face unconstitutional, but Lautenberg probably should be.