Category: 2nd Amendment

The Heller decision pretty clearly and unambiguously said that there was a Second Amendment right to bear arms, in addition to keeping them in the home. The McDonald decision incorporated that Second Amendment right through the 14th Amendment, so that it applies to both federal, state and local governments equally.

Cliff Schecter, a paid shill strategic advisor for Mayor Bloomberg’s group of illegal mayors, apparently has never heard of it. Let me remind Mr. Schecter of an important part of the 14th Amendment, from Section 5: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” I would like to note the language of H.R. 822:

(3) The Congress has the power to pass legislation to protect against infringement of all rights protected under the Fourteenth Amendment to the Constitution of the United States.

(9) Among the purposes of this Act is the protection of the rights, privileges, and immunities guaranteed to a citizen of the United States by the Fourteenth Amendment to the Constitution of the United States.

Regardless of all the policy hysteria in Mr. Schecter’s op-ed, constitutional rights trump all but the most dire policy arguments. The fact of the matter is, anyone who’s not disqualified for crimes committed from exercising their right ought to be able to do it without regards to state borders. My right to free speech, free religion, or right be free of unreasonable searches and seizures does not appear and disappear as I move from state to state. Why is the Second Amendment any different?

But I understand why Schecter is working this issue, because it scares the hell out of Mayor Bloomberg. Well, tell your boss, Mr. Schecter: we are coming for his city’s gun laws, and we’re going to be relentless in this. We’re going to lay waste to the 20th century gun rights monstrosity that has been erected in New York City. Those laws are, and always have been, unconstitutional. There’s no amount of hewing and hawing on his part, or on the part of people he’s paying to hew and haw on his behalf, that’s going to stop us.

No Lawyers, Only Guns and Money is reporting on a loss in District Court. I think we’re probably going to lose in District Courts a lot. What matters is losing in higher courts. This will be appealed. Even if, on appeal, the case loses, it may still create a circuit split that will force the Supreme Court to make a final decision.

Dave Kopel has a recent article that talks about how the collective rights theory of the Second Amendment sprang into life and then was eventually abandoned. The short of it was that collective rights theory didn’t really exist until the 20th Century, being created by a 1905 Kansas Supreme Court case, Salina v. Blaksley. It made its way into the federal court system in 1935, by a judge who was later impeached and removed from office by Congress.

Yet the collective-right theory itself contained the seeds of its own destruction. Emboldened by the collective right’s negation of the Second Amendment, politicians and gun-ban lobbies intensified the pressure for draconian gun control, and so scholars began looking into the actual legal history of the Second Amendment. One such scholar was a University of Arizona Law School student named David Hardy. His 1974 article in the Chicago-Kent Law Review, “Of Arms and the Law,” marked the beginning of the historical rediscovery of the Second Amendment.

For a while, the legal academy tried to ignore the mounting historical evidence that the Second Amendment protects an individual right. But in 1989, left-leaning University of Texas professor Sanford Levinson penned “The Embarrassing Second Amendment” for the Yale Law Journal.

His article also speaks about the other side of the coin as well

While Verdugo-Urquidez was working its way through the appellate courts, Handgun Control Inc., (which later renamed itself the Brady Campaign) hired attorney Dennis Henigan. In a 1989 article for theUniversity of Dayton Law Review, he recast the (untenable) collective right cases as actually standing for a narrow individual right: “It may well be that the right to keep and bear arms is individual in the sense that it may be asserted by an individual. But it is a narrow right indeed, for it is violated only by laws that, by regulating the individual’s access to firearms, adversely affect the state’s interest in a strong militia.”

This would be the theory later adopted by Justice Stevens.

Read the whole thing. I think it’s important to put this bit of our movement’s history in context, as well as understand how our opponents fit in.

The Battle Swarm Blog recently asked Clayton Cramer to respond to Prof. Adam Winkler’s article “The Secret History of Guns,” and got a response. I recommend reading both. Professor Winkler is not a person I’d classify as part of our movement, but he’s made some useful contributions to the debate. I’d classify him as a moderate. Clayton Cramer has been citied in a number of Second Amendment cases, including Heller, McDonald, and Ezell.

The case involves someone convicted of a drug misdemeanor so minor, there’s not even jail time for it. The court mentions the Second Amendment argument, and then proceeds to completely ignore it. Eugene Volokh notes:

So it seems that the court is concluding that the Second Amendment doesn’t protect people who have even a minor misdemeanor marijuana possession conviction — not a felony, not a violent misdemeanor, not even a misdemeanor that could yield any time at all in jail, and not anything that involves a finding that the defendant is an illegal drug user right now — without at all explaining why this should indeed be so. Strikes me as pretty hard to defend; or am I missing something here?

I’d say it’s pretty hard to defend, and I find it interesting how many lower level courts just want to dispose of the Second Amendment issue, usually through citation of the “longstanding prohibitions” language in Heller. I think it’s probably constitutional to deny Second Amendment rights to people addicted to drugs much in the same manner as people who are mentally ill. But that prohibition shouldn’t be permanent. It seems ridiculous that someone could suffer a lifetime prohibition for a crime that doesn’t rank much higher than a traffic ticket.

An memorandum in support of a preliminary injunction has been filed in the NRA-backed case of Shepard v. Madigan, heavily citing the Ezell ruling a few days before. Shepard is a case challenging Illinois’ prohibition on carrying firearms, and the NRA is asking the district court to enjoin the State of Illinois from enforcing this law. If this were to happen, Illinois will likely quickly follow on the heels of Wisconsin to pass a concealed carry law.

UPDATE: SAF followed up yesterday with an injunction request of its own.

It looks like Mr. Gura has won his injunction. From the opinion linked to in the tweet:

We reverse. The court’s decision turned on several legal errors. To be fair, the standards for evaluating Second Amendment claims are just emerging, and this type of litigation is quite new. Still, the judge’s decision reflects misunderstandings about the nature of theplaintiffs’ harm, the structure of this kind of constitutional claim, and the proper decision method for evaluating alleged infringements of Second Amendment rights. On the present record, the plaintiffs are entitled to a preliminary injunction against the firing‐range ban. The harm to their Second Amendment rights cannot be remedied by damages,their challenge has a strong likelihood of success on the merits, and the City’s claimed harm to the public interest is based entirely on speculation.

For those that missed it, the judges savaged the City’s attorney pretty badly during oral arguments. I encourage you to go listen. It’s ear candy for gun rights proponents. This is indeed very good news. We thank Alan Gura and Second Amendment Foundation for taking the time and effort to pursue this case, and for future efforts in continuing to pursue it. I would imagine the next issue would be whether Rahm’s BS ordinance satisfies the injunction. I think the answer should be an emphatic “no.”

UPDATE: Reading the opinion in full, it’s a pretty substantial victory. You get passages like this, where the court is speaking of it being improper to consider individual circumstances on a facial challenge rather than an as-applied challenge:

That is, the City Council violated the Second Amendment when it made this law; its very existence stands as a fixed harm to every Chicagoan’s Second Amendment right to maintain proficiency in firearm use by training at a range. This kind of constitutional harm is not measured by whether a particular person’s gasoline or mass‐transit bill is higher because he must travel to a firing range in the suburbs rather than one in the city, as the district court seemed to think.

UPDATE: We’re told by our opponents that you can’t take the Second Amendment in the same context as the first Amendment. This opinion would seem to slap down that notion:

This reasoning assumes that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction. That’s a profoundly mistaken assumption. In the First Amendment context, the Supreme Court long ago made it clear that “ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ”

Hey, what do you know Brady’s, CSGV, and VPC, it is a right after all. More here:

The City urges us to import the “undue burden” test from the Court’s abortion cases, see, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876‐79 (1992), but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context […]

Remember this case next time the Brady’s get on their “can’t treat it like the First Amendment” kick.

UPDATE: Here’s another topic: lead contamination:

On appeal the City raised but did not dwell on its concern about lead contamination. For good reason: It cannot be taken seriously as a justification for banishing all firing ranges from the city. To raise it at all suggests pretext.

Perhaps the City can muster sufficient evidence to justify banning firing ranges everywhere in the city, though that seems quite unlikely. As the record comes to us at this stage of the proceedings, the firing‐range ban is wholly out of proportion to the public interests the City claims it serves. Accordingly, the plaintiffs’ Second Amendment claim has a strong likelihood of success on the merits.

UPDATE: This is from the female judge who was least sympathetic to Alan Gura’s argument. She joins the majority opinion in judgement:

A complete ban on live ranges in the City, therefore, is unlikely to withstand scrutiny under any standard of review. The plaintiffs have a strong likelihood of succeeding on the merits of this claim.

Of course, she later goes on to say:

A right to maintain proficiency in firearms handling is not the same as the right to practice at a live gun range. As such, I cannot agree that “a more rigorous showing than that applied in Skoien, should be required, if not quite ‘strict scrutiny.’ ”

Spoken like someone who knows nothing about guns or training :) But we’ll take it. She did the right thing by the law. I disagree with her opinion that lesser scrutiny is called for, but she still agreed in terms of judgement.

SAF is filing a suit in federal court in California challenging the state’s assault weapons ban. The challenge appears to be for vagueness, which are notoriously difficult, but not impossible to win.

“California attempts to make a distinction among firearms where no natural one exists,” noted Calguns Executive Director Gene Hoffman. “The generic definition of so-called ‘assault weapons’ was simply an attempt to prohibit possession of guns that look scary.”

Plaintiffs are represented by attorneys Don Kilmer of San Jose and Jason A. Davis of Mission Viejo. Kilmer said the case is indicative of the way things have become in California.

“Now that the right to keep arms has correctly been recognized as fundamental and applicable to California,” Kilmer said, “gun owners can’t be faced with the practice of ‘arrest them first and let the courts sort it out’ for exercising constitutional rights. That is just how things are done in our country.”

Combined with the Second Amendment, this could be a winning argument. I would think the trick is to try to get the Courts to say two things. One that a law governing a fundamental, constitutional right cannot be worded so vaguely, and/or that laws can’t be passed that serve the purpose of frustrating the lawful exercise of that right, or making it too legally risky. That would be a huge win if they would rule along those lines.