Category: 2nd Amendment

Looks like Nordyke is about to be reconsidered in the 9th Circuit “En-Banc,” meaning the entire Circuit Court will reconsider the decision, which held that the County of Alameda could ban gun shows on its property if it so wished, and not run afoul of the Second Amendment.

It’s interesting to see SAF and CalGuns Foundation announcing they are going after the Assault Weapons Ban in California. While I’m wary of AWB suits in general, they have a unique angle. I’ve had this case in my tabs for a few weeks now, meaning to write something on it, but hadn’t taken the time to do the research. The case has an Iraq war veteran at the center of it, an individual who has repeatedly been unjustly arrested several times because California cops don’t know what an assault weapon is (which is understandable, considering no one else really does either). The case is also narrow, rather than being a kitchen sink of issues.

The argument, as best I can tell, is that the California AWB can’t survive constitutional scrutiny due to vagueness, and due to the fact that it’s interfering with the exercise of a fundamental constitutional right. The interesting thing about the vagueness angle, is that it’s already been tried before, and prevailed in a case in Ohio in the Sixth Circuit, and as best as I’ve found, none have outright failed either. These cases were pre-Heller, and I would think Heller should change the dynamic a good deal.

Given the Heller II case has upheld an Assault Weapons Ban as constitutional, at this point a circuit split is likely on the matter, which makes it likely the Supreme Court will take a case to resolve the split. This lawsuit looks interesting enough, and the plaintiffs well selected, that this would be something we’d want before the Court if they choose to resolve the conflict. They might be more open to a constitutional argument that includes a strong element of vagueness.

That said vagueness challenges are tough to win, though this area of gun control seems particularly ripe for it. When you regulate by cosmetics rather than function, it necessarily is going to include a large degree of vagueness. This centers around things like prohibiting barrel shrouds, which even Carolyn McCarthy will tell you is a “shoulder thing that goes up,” or prohibiting flash suppressors, but not muzzle brakes, and how is law enforcement to know the difference? There’s also, in California, the issue of the bullet button, which has effectively neutered their assault weapons ban for all practical purposes. Essentially as long as it takes a tool (and a bullet has been determined to be a tool) to drop the magazine, it’s not considered “detachable,” and therefore none of the assault weapon characteristics apply. The problem is that police in California haven’t been well trained to know the difference.

It’s not the anti-gun people, it’s guys like this:

The attorney for a Kingsburg[, CA] man charged with allegedly possessing 33 assault rifles, a grenade launcher and a silencer said Thursday that the Second Amendment gives him the right to collect guns.

Apparently some of those assault rifles were actual assault rifles. This is not going to end well folks, if this argument moves forward. I was always pretty pessimistic about saving the right to machine guns in court. I am now getting pessimistic we’ll ever get rid of bans on assault weapons. We really need a few more Supreme Court cases, and some changes on the federal courts, before we’re ready to start litigating on bans on narrow classes of firearms rather than bans on broad categories of firearms.

Had Obama not won, we could have gotten there much faster. But he won, and by historical precedent, he’s likely to win a second term. I think we might have to write off “assault weapons” as protected by the Second Amendment, at least by the courts. Certainly we’ll fight bans politically, and probably win, but that won’t help the half-dozen or so states who restrict narrow categories of firearms. Even Eugene Volokh doesn’t seem too optimistic about slipping that by the federal courts.

There are going to be too many guys like this out there taking cases too soon. If you think about the kind of logic allowing selective banning of classes of weapons requires, it blows a hole in the Second Amendment the size of a barn.

This time in North Carolina court:

The trial court concluded that, when Heller said that bans on felon possession of guns were “presumptively valid,” this presumption could be rebutted, and in this case it was rebutted, given the age of Johnston’s conviction and his apparently blameless life since then. The court also suggested that its analysis might also apply to people whose last convictions were as recent as seven years ago, especially when the convictions were for nonviolent crimes; but it didn’t have occasion to issue any specific holding on that point.

I agree that not all felony convictions should be disabling, especially when you have lawmakers that want to do things like mislabeling syrup to be a felony. It’s also interesting that the Court noted:

There are additional and substitute procedural safeguards which could go far towards preventing the erroneous civil deprivation, or continued civil deprivation, of a citizen’s rights under the Second Amendment. For example, a felon’s potential subjection to the civil disability could easily be dealt with in felony sentencing by findings of fact and rulings on the civil deprivation of the right after giving the felon an opportunity to be heard on the issue. An expansion of the persons allowed to ask for review, and a provision allowing such review at a meaningful time on the issue of whether the person poses a continuing threat to public safety, can satisfy a procedural due process requirement for a meaningful post-disqualification review. The fiscal and administrative burdens that these procedures would entail would not be great if the issue of future dangerousness and consequent civil deprivation of a fundamental liberty were dealt with in the sentencing phase of a trial or plea. The burden of an expanded procedure for review of a felon’s continued dangerousness may only be excessive if all felons continue to be deprived of firearms rights by conviction alone. If, however, that deprivation is limited to those who are found to pose a continuing danger in the sentencing phase after having been given an opportunity to be heard on the issue, then the additional burden of allowing periodic review of the continuing validity of that determination should not be unduly burdensome for a government that seeks to preserve the fundamental rights of its citizens.

I’m glad to see this, because I have always believed a blanket ban on felons is an improper means of handling the issue, and that a prohibition on firearms possession should be something placed on a person convicted during sentencing. Of course, legislatures would be free to require this punishment for certain crimes, but not necessarily all crimes. It’s hard to see how public safety is served by a blanket ban that also covers non-violent felonies.

This is more a 14th Amendment case, but the State Appeals Court tossed a conviction for having an unlicensed gun, arguing that it violated equal protection, and his right to bear arms. Eugene Volokh notes:

This independent focus on the Second Amendment is important because the Supreme Court has read the Equal Protection Clause as barring most (but not all) state discrimination against noncitizens; the federal government remains generally free to discriminate against noncitizens. But if the Washington Court of Appeals is right that legal aliens are protected by the Second Amendment, that means that even the federal government may not ban them from owning guns.

This would basically mean that anyone who’s in the country legally has a right to bear arms. Current federal law severely curtails the right for non-resident aliens, so this could be interesting if it makes its way to federal court.

Quoting from an interview appearing in Time:

I would change the interpretation of the Second Amendment. The court got that quite wrong. Gun policy should be handled by legislatures and by states, not by federal judges appointed for life.

The Second Amendment is never really going to be safe until we stop hearing things like this from left-leaning judges. The only thing that’s going to save the Second Amendment is getting judges on the bench who are willing to uphold it.

The Supreme Court must be interested in the case of Masciandaro v. US, which involves a man who was convicted of violating the gun ban in National Parks by having a loaded pistol in his vehicle. The Supreme Court asked the Obama Administration for its opinion, which you can read here. Lyle Denniston has a very good article about the opinion over on SCOTUSblog.

While recognizing there is a right to carry a firearm outside of the home, the Administration’s position is that this is only deserving of some form of mid-level scrutiny, and that a ban on carry is not among those regulations which could be deemed unconstitutional under this standard. The Administration is asking the Court here to deny review.

We need more judges like this:

This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake. As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy … A lower-court judge has a special obligation, moreover, to strictly and faithfully follow the lead of the “one supreme Court” established by our Constitution, regardless of whether the judge agrees or disagrees with the precedent.

D.C. believes that its law will help it fight violent crime. Few government responsibilities are more significant. That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime… In the words of the Supreme Court, the courts must enforce those constitutional rights even when they have “controversial public safety implications.”

As I read the relevant Supreme Court precedents, the D.C. ban on semi-automatic rifles and the D.C. gun registration requirement are unconstitutional and may not be enforced. We should reverse the judgment of the District Court and remand for proceedings consistent with this opinion. I respectfully dissent.

Judge Brett Kavanaugh, D.C. Circuit Court of Appeals. Heller v. DC, dissenting.

I believe that Heller II or Heller v. DC is our most significant loss in court to date. It’s being picked up quite heavily by the media, and our opponents are justifiably celebrating. Understand that this is not a District Court loss. Those have become par for the course in Second Amendment cases. This is a loss of an entire federal circuit, and arguably the most important federal circuit. Gene Hoffman had a comment that I think is worth highlighting:

I really wish that people didn’t try to boil the ocean. Any one of the three issues should have had a full and separate case and be brought in the right order…

I think he’s absolutely correct here, and unfortunately this is not the only NRA-backed case that’s flawed in this manner. Benson, challenging the entire kitchen sink of Chicago regulation is similarly flawed. I would also argue that Dick Heller, while a good plaintiff for the original case challenging handgun possession, was a poor choice for going after restrictions on semi-automatic rifles. I believe NRA needs to start being a lot more careful about the battles it’s choosing to fight in Court.

While I believe the case in regards to purchase by 18-21 year olds has merit, I question of the wisdom of going after carry by 18-21 year olds at the same time. Do we really want the courts to understand the full extent of the can of worms they could be opening? We need strong rulings, starting out. What we don’t need are courts getting scared by extraneous issues we can get more easily when the case law looks more solid. Using this example, if you get courts to say 18-21 year olds have Second Amendment rights that can’t be impermissibly infringed, and you can get courts to say that there’s a right to carry, carry for 18-21 year olds flows naturally for that. It’s just not necessary, in my opinion, to bring that suit.

By the same token, I believe pursuing an assault weapons case at this point was highly premature, and said so last year when this failed in District Court. Heller II would have done far better to focus narrowly on the most onerous of DC’s requirements when it comes to the exercise of the core right. I really hope NRA re-examines its legal strategy. At the risk of hurting some feelings at NRA HQ, SAF has a far more coherent and concise legal strategy.

But that said, the greatest thing NRA will do for us, which is absolutely essential, and something SAF cannot do, is to create a political climate where ruling against the Second Amendment is career suicide for judges looking to advance on the bench. We have to get the Second Amendment community obsessed about what federal judges think about the Second Amendment. That is, unfortunately, a tall order. But it is necessary.

It is my honest opinion that if we do not take back the White House in 2012, we’re going to end up with a very weak and nearly meaningless Second Amendment right, that will never mean anything beyond being able to have a handgun in the home, with any manner of obstacles and frustrations being thrown in the way of that being perfectly acceptable by the federal courts. If we can be victorious in 2012, this ruling, as much of a setback as it is, will likely only be a speed bump on the way to turning the Heller II dissent into prevailing legal opinion.

Say what you will about how much George W. Bush sucked for gun rights, and a lot of people make the case, but his judges seem to be the ones who take the Second Amendment seriously. It’s worth noting that Judge Sykes, who wrote the opinion in Ezell, was a Bush nominee. The other two judges were put on the Court by Bush the Elder, and Ronald Reagan. Reagan’s appointments to the Court seem to be more mixed. But Judge Kavanaugh, put on the bench by George W. Bush, was the dissenting judge in this case. From the opinion: