Category: 2nd Amendment

Eugene Volokh has a translation into English of the opinion.

NRA is filing suit against Illinois’ total prohibition on carrying firearms. I have not yet read the complaint, but will take a look at it as soon as I have time. It’s worth noting that the Concealed Carry bill was pulled before all the votes were in, so it’s still alive. This presents a cash strapped state with two options. One option is to spend a lot of money fighting a lawsuit in the courts, the other is to pass the concealed carry bill, which will be a source of revenue. The choice is theirs.

A few weeks ago it became impossible for residents of DC to purchase firearms because the only FFL in the city has stopped doing business. That created an opportunity which SAF is now exploiting with a lawsuit. Dave Hardy wonders where Alan Gura finds the energy.

Ruling can be found here. A newspaper article from a few weeks ago was written about it here. Much the the analysis here strikes me as weak, particularly the question of whether the Second Amendment protects unlicensed carry outside the home. I believe the question should be whether the Second Amendment protects carrying outside the home, and then next question is, under a chosen standard of review, does the licensing requirement impermissibly burden the exercise of that right. The court gives short service to analysis even under intermediate scrutiny.

I agree with the court’s conclusions in regards to carrying in a courthouse, which I believe the government can legitimately proscribe. I believe Pennsylvania’s statute is set up in a constitutional manner. But I’d like to see courts taking the overall right more seriously.

I am very pleased to see a judge understanding that the Second Amendment is about more than just firearms:

“Because the court finds that a stun gun is an arm under the Second Amendment, it likewise follows that states may regulate the ownership and possession in the same manner as any other arm,” the judge wrote. “However, this court holds that a total ban of stun guns … is unconstitutional.”

This seems correct to me. Hopefully other courts will come to similar conclusions in regards to non-firearm self-defense items like sprays and knives.

A Massachusetts appeals court rejected an argument that there’s a Second Amendment right to have a gun in someone else’s home. Eugene Volokh thinks this is an incorrect ruling. It’s been a huge disappointment to see how few courts are taking the right seriously. While I am still optimistic we’ll end up better off for having gone to Court, I don’t think we’ll end up with nearly the level of protection most of us would like.

Law review article by Prof. Glenn Reynolds and Prof. Brannon Denning. I am most interested in their fifth take, which looks at what the lower courts are doing and will likely do with the case. It is not very optimistic, but not terribly pessimistic either. They conclude by saying:

Will the Heller and McDonald decisions herald another constitutional revolution where no one showed up? Probably not. To a much greater extent than the Commerce Clause issues addressed in Lopez, the Second Amendment involves questions and issues that inspire fierce passion in large numbers of Americans, and in well-funded organizations both equipped and inclined to pursue follow-up litigation in both state and lower federal courts. So in concluding that this is, at most, “the end of the beginning,” we do not mean to suggest that there will not be further battles – only that those battles will now be fought on terrain, and in fashions, that constitutional lawyers will find familiar.

And some of those well funded organizations have the political muscle to make sure friendly Presidents and Congresses put the right people on the Court. NRA needs to be able to demonstrate it can play the role of kingmaker when it comes to federal judges, which they can’t do without us.

The goal would be to make it such that any federal judge who wants to be elevated to a higher bench had better not have a weak record on the Second Amendment, either in opinions from the bench or in their writings. I would imagine that judges are like anyone else who’s ambitious in their careers, in that every Federal Magistrate imagines himself a District Judge, every District Judge images himself on the Circuit Court, and every Circuit Court Judge imagines himself on the Supreme Court. If bad rulings on the Second Amendment end up being a ticket to a dead end career on the federal bench, that might tame some of the more ambitious judges, and force them to take the right more seriously than they might otherwise be inclined.

I’ve generally been more impressed with SAF’s litigation strategy than I have been with NRA’s. However only NRA has the power to influence which judges end up on the bench or get elevated. Both roles are going to be critical moving forward, if we’re going to win a broad, well-protected right.

The Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, argue that the “presumptively lawful” language in Heller is not dicta, under the following criteria:

We agree with the Second and Ninth Circuits that Heller‘s list of “presumptively lawful” regulations is not dicta. As we understand Heller, its instruction to the District of Columbia to “permit [Heller] to register his handgun [and to] issue him a license to carry it in the home,” was not unconditional. See Heller, 554 U.S. at 647. Rather, it was made expressly contingent upon a determination that Heller was not “disqualified from the exercise of Second Amendment rights.” Id. The District of Columbia could comply with the Supreme Court’s holding either: (1) by finding that Heller was “disqualified from the exercise of Second Amendment rights” under a “presumptively lawful” regulation (such as a felon dispossession statute); or (2) by registering Heller’s handgun and allowing him to keep it operable in his home. Id. Accordingly, the Supreme Court’s discussion in Heller of the categorical exceptions to the Second Amendment was not abstract and hypothetical; it was outcome-determinative. As such, we are bound by it.

The Court probably did us a favor by preventing felons from testing the limits of the Second Amendment. I think the Third Circuit is on solid ground here. On considerably less solid ground is that among these “presumptively lawful,” restrictions on keeping and bearing arms is pretty much anything the courts or gun control activists think is reasonable. I would also argue that laws banning certain misdemeanants from possessing arms is neither longstanding nor covered in this opinion. Many courts have taken bans on misdemeanants seriously, but others have not.

A Mexican reporter asked Obama why he doesn’t just veto the Second Amendment. What’s surprising is the answer:

“Well, the Second Amendment in this country is part of our Constitution, and the president of the United States is bound by our Constitution. So I believe in the Second Amendment. It does provide for Americans the right to bear arms for their protection, for their safety, for hunting, for a wide range of uses. That does not mean that we cannot constrain gun-runners from shipping guns into Mexico. And so we believe that we can shape an enforcement strategy that slows the flow of guns into Mexico, while at the same time preserving our Constitution.”

Has anyone trolled Monster.com lately to see if the Brady people have their resume’s out yet? I would if I were them. The writing is on the walls, folks. Not that I believe this issue is going away, but the form it’s going to take heading into the future will not be the Brady model.