Category: 2nd Amendment

The challenge was on DC’s gun laws as they stand post-Heller. They have been upheld in part and remanded in part:

We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements. We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.

I hope in this case that Heller II stops here, because this is not a good case to move forward, and it’s already done enough damage. Challenging the “assault weapons” provisions of DC’s law was highly premature, especially considering we’re likely to remedy that through Congressional action if we can flip the Senate and the White House.

The record supports the view that basic registration of handguns is deeply enough rooted in our history to support the presumption that a registration requirement is constitutional.

I’m not optimistic that registration requirements will be held unconstitutional. It’s hard to imagine a federal judiciary that doesn’t really like the Second Amendment to rule otherwise. If you look at the core right, as the courts have defined it, it’s difficult to argue how registration infringes on it in a substantial way. Nonetheless the Appeals Court seems to be skeptical about requiring it for long guns.

But the Appeals Court seems to be hanging onto the “longstanding” aspect of the original Heller ruling, and seem to be applying a test that if a law is longstanding, it must therefore be constitutional. This strikes me as extraordinarily weak reasoning, although it was exceedingly weak language from the Court, in my opinion. The Appeals Court’s opinion here seems to be based on the fact that the Sullivan Act is longstanding, and therefore a registration scheme, as applied to pistols, is constitutional.

As between strict and intermediate scrutiny, we conclude the latter is the more appropriate standard for review of gun registration laws.

Couldn’t have seen that coming. Has any court decided that using strict scrutiny is appropriate for anything related to the Second Amendment? Not that I’ve seen. They always find a reason it’s not appropriate. But on to the assault weapons issue, since that is the most curious. There is one bright spot. The Appeals Court found they are in common use:

We think it clear enough in the record that semi- automatic rifles and magazines holding more than ten rounds are indeed in “common use,” as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.

But then proceeded to argue that they were not protected, and restricting them is perfectly constitutional:

Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non- automatic long gun.

They adopted the substitution principle, which was rejected when D.C. made that argument in the original Heller. Basically, because you have access to some firearms in common use, banning other firearms in common use is perfectly OK because of substitution.

Although we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right. As the District points out, the plaintiffs present hardly any evidence that semi-automatic rifles and magazines holding more than ten rounds are well-suited to or preferred for the purpose of self- defense or sport.

Magazines don’t fare any better:

The Siebel testimony moreover supports the District’s claim that high-capacity magazines are dangerous in self-defense situations because “the tendency is for defenders to keep firing until all bullets have been expended, which poses grave risks to others in the household, passersby, and bystanders.”

So they don’t let their police carry them, do they? NRA now has a mission. It needs to overturn the D.C. gun laws through Congressional action, and I think it would be of great benefit if a quip could be added to the bill citing Congress finds this ruling in error. It’s worth noting that none one of the judges on this panel were was the same as those who decided  lone dissenter in the Parker (which then become Heller) case.

I strongly believe the Second Amendment needs to become a litmus test for federal judges. We want the most ambitious of the federal bench fearful to rule against us for the possibility that will be used to prevent advancement to a higher court.

I should note the Court devoted a significant part of their opinion in this case to addressing the dissenting judge in this case. That must mean the dissent is pretty good. We’ll take a look at that later.

Dave Hardy reports that the Supreme Court has refused to hear the case of  State v. Williams. Let’s hope that’s for a reason other than they don’t have the votes for the case to win.

The Hightower case in Massachusetts, involving a former police officer who had her license to carry (also a license to possess in Massachusetts) revoked and her gun confiscated, has been lost in District Court in Massachusetts. The District court in this case argues that the Second Amendment is not implicated:

First, the Massachusetts licensing statutory scheme does not strike at the heart of the Second Amendment: while the difference between a restricted Class A license (which Hightower has not applied for) and an unrestricted Class A license (which Hightower has had revoked) may have some marginal impact on Hightower’s ability to use a gun to defend herself outside her home, it has no impact on her ability to defend hearth and home or to defend herself at home, which she can do adequately with a restricted Class A license or Class B license. Further, because the statutory scheme at issue here imposes only case-by-case restrictions, it creates a narrower restraint than the categorical prohibitions that, under certain circumstances, survive Second Amendment review.

You can read the whole opinion here. I’m not a lawyer, nor a serious scholar, but I find this opinion to be nearly incoherent. The Court essentially says the case is not ripe, because she could have re-applied for a permit. But that doesn’t address the deprivation of the right in the first place that occurred when the state seized the woman’s firearms. The district judge in this case seems to support the notion, without any analysis or justification, that it does not run afoul of the Constitution to have local authorities declare who is “suitable” and who is “unsuitable” for exercising their constitutional rights.

NRA’s lawsuit to overturn the law barring 18-21 year olds from purchasing handguns has been lost in the a district court, I believe in the same district court that decided Emerson back a half decade ago:

“The Court is of the opinion that the ban does not run afoul of the Second Amendment to the Constitution,” the ruling states. “The right to bear arms is enjoyed only by those not disqualified from the exercise of the Second Amendment rights.

“It is within the purview of Congress, not the courts, to weigh the relative policy considerations and to make decisions as to the age of the customer to whom those licensed by the federal government may sell handguns and handgun ammunition.”

So Congress could say no one who has not yet attained the age of 90 is permitted to own a firearm, and that is completely within Congress’ purview? The Courts should have nothing to say about it? What other right do we treat that way?

It continues to amaze me how little regard lower courts have for Heller and McDonald. Maybe there’s sound legal reasoning involved here. I have not seen the opinion. But punting to Congress strikes me as awfully weak.

UPDATE: The opinion is here. To make a relatively short opinion even shorter, he essentially grabbed on to the following passage in Heller:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Emphasis added by the District Court. Judge Cummings essentially argued that this was “a condition and qualification on the commercial sale of arms,” and thus was placed outside of the purview of the Court, leaving in the purview of Congress. But surely the Court did not mean that any condition or qualifications on the commercial sale of arms was presumptively constitutional? What if the qualification was never having received so much as a parking ticket? What if the condition was that each state could only have only FFL that was open 9AM to 11AM on the first Sunday after the first Saturday of each month? Does Judge Cummings really believe the Court meant that was entirely within the purview of Congress? That’s an absurd conclusion that renders a right a privilege.

The law professors who have written the new Second Amendment book have also filed an Amici Curiae with the Supreme Court of Illinois over a carry case that will be heard before the state high court. You can read the amicus here. From the brief:

Over the past two centuries, courts applying the right to bear arms for self-defense under state and federal constitutions have repeatedly affirmed that the right includes the carrying of arms in public. The right can be regulated to an extent, such as required that defensive weapons be carried openly, rather than concealed. However, the right cannot be destroyed by prohibiting public carry.

Our opponents are on incredibly weak legal ground with the argument that the Second Amendment only protects the right to have a gun in the home. Heller pretty clearly recognized the right as being broader than that, and as this amicus points out, state courts have a long history of recognizing that under state right to bear arms analogues. The professors do point out that the character of the state Court decision has allowed substantial leeway for the regulation of the manner in which arms may be borne, but that under virtually all state analogs, a prohibition on the right to bear arms, such as exists in Illinois, has never been held to be constitutional. The professors note:

Post-Heller courts that confine the Second Amendment to the walls of the home have ignored this body of precedent. Astonishingly, the decision below does not cite or examine a single one of the cases discussed above, including the ones explicitly relied upon in Heller. In fact, it does not examine any pre-Heller judicial opinions explicating the right to bear arms — except for the decision in Kalodimus v. Villiage of Mortaon Grive, 470 N.E.2nd 266 (Ill. 1984) (upholding a municipal ban on handguns), which was repudiated by Heller and McDonald.

The same grave omission undermines Dawson, as well as the Maryland decision relied upon by the court below, Williams v. State, 10 A.3d 1167 (Md. 2011). None of these opinions engages with historical evidence or with right to bear arms cases decided prior to 2008. That is an extraordinary way to respond to a pair of landmark decisions as drenched in history and tradition as were Heller and McDonald. This omission is sufficient in itself to raise a presumption that the application of the Second Amendment in these opinions has gone seriously astray.

The Williams case, by the way, has a cert petition before the US Supreme Court. The Maryland Supreme Court, in that case, essentially ruled there was no right to bear arms outside of the home, and that the Heller ruling confined the right to having a handgun in the home. This interpretation is intellectually and historically dishonest. It’ll be interesting to see what the Illinois Supreme Court does in this case.

There’s really no circumstance where I think a lifetime ban on a fundamental right should be constitutional for a misdemeanor conviction, but one of the gravest outrages perpetrated by the federal courts is allowing the ex-post-facto nature of the Lautenberg Amendment to stand. John Richardson has a good example in regards to why. As far as I know, there’s never been any direct Supreme Court ruling on the ex-post facto issue in regards to Lautenberg, but it seems pretty clear to me that stripping a constitutional right post-conviction, without any further due process, ought to be a violation. One might argue that you get around the ex-post facto issue by virtue of the fact that an action is required, namely gun possession with a misdemeanor DV conviction post the date of the act, but when the act of possession is protected by the Constitution, it’s hard to see how that doesn’t amount to punishment after the fact.

The totality of our opponents loss in Heller and McDonald probably didn’t really hit me until I saw this post over at Volokh on a new law school textbook on the Second Amendment. Understand that the Second Amendment is now a hot area in mainstream constitutional law. The textbook is co-authored by Nicholas Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and Dave Kopel (Denver). This is an academic work that’s the culmination of many years of research into this topic. At first, it was not widely accepted, and now it’s mainstream constitutional law. All new law students will be learning this version of history, the true version, our version, rather than the revisionist claptrap whipped up by our opponents.

They have made a list, which is good, because I can never remember who’s funding what these days. I believe this is just ILA supported litigation, and does not include litigation being funded by the Civil Rights Defense Fund.