Category: 2nd Amendment

The rationale sounds pretty weak to me:

While broad restrictions might be judged under a stricter standard, Margulies wrote, Heller makes clear that courts will continue to apply rational-basis review to laws barring possession by “disqualified” persons, including misdemeanants and those on pretrial release.

What if the misdemeanor was non-violent? Does rational-basis apply to prohibitions on people convicted of say, reckless driving? Speeding? Spitting on the sidewalk? This seems to be a very broad reading of Heller, which only mentioned felons.

He moved to Florida with his family, which pulls him off the case. He will be replaced by others. I guess he can return to being able to dress up for Halloween and quote books and movies without the Brady Campaign and CSGV shopping his Facebook entries around to the media.

Gura’s optimism is refreshing. I am probably more pessimistic by nature about the Federal Courts’ willingness to give us a strong Second Amendment right. It’s good to hear experts who feel strongly that our chances are good.

Dennis Henigan starts out, instead of talking about constitutional law, talks about public policy instead, talking about how this is just a strategy to implement our “guns everywhere” policy. He later goes on to speak of how narrow the Heller decision is, suggesting that the right is limited to the home. He pleads with other panelist not to regard the Second Amendment like the First Amendment:

The Second Amendment should be regarded as, to some extent, sui generis. It is like no other right. It is, in my view, the most dangerous right. It demands its own unique constitutional jurisprudence that is highly deferential to the very very difficult judgements our elected officials have to make as they seek to formulate policies that will prevent future Tucsons, and that will reduce the tragic toll of gun violence in this country that now takes 80 of our fellow citizens lives every day.

In other words, because the right is unique, and lots of people die by gunfire, we should read it as meaning as little as possible.

Nelson Lund makes a number of criticisms of Heller from an originalist point of view. He seems to be much more on the pessimist side, and doesn’t seem to like the Heller and McDonald decision all that much, for similar reasons we all don’t like it. I’m probably not even close to as pessimistic as Lund, though maybe not so much as Gura. But I think I’m closer to Gura’s position than Lund’s.

Alan Morrison was supposed to argue the Heller case for DC, but infighting in DC government prevented it. He also reiterates that the Second Amendment can’t be like the First Amendment because “guns can hurt you.” It’s funny how many of his criticisms are identical to Lund’s.

Suffers a setback in Georgia. I think these kinds of lawsuits, at least on Second Amendment grounds, are highly premature. It’s disappointing many are not seeing the long term consequences to pushing todays hot political fights into the courts before the Courts are really prepared to listen to them with open ears.

The Court’s conclusion here appears to ignore a lot of places in Heller where the right to carry outside the home is taken as a given:

We shall hold that Section 4-203(a)(1)(i) of the Criminal Law Article, which prohibits wearing, carrying, or transporting a handgun, without a permit and outside of one’s home, is outside of the scope of the Second Amendment. We also shall hold that, because Williams failed to apply for a permit to wear, carry, or transport a handgun, he lacks standing to challenge Section 5-301 et seq. of the Public Safety Article, Maryland Code (2003),4 as well as COMAR 29.03.02.04.5 As a result, Williams’s conviction will stand.

It’s outside the scope because the right is only at force in the home, per the Supreme Court rulings. This supposedly a constitutional right that has no force outside the home. The standing issue might make sense, since he never applied for a permit. We all know that’s a fruitless endeavor in Maryland, since they routinely deny permit applications for nearly anyone who applies, but I think they might have a point that because he never was denied a permit, he can’t challenge the law this way. In other words, he would have been better off applying, then suing over the denial, than just breaking the law anyway.

It seems clear, however, that Maryland Courts are joining the other anti-gun state courts who continue to pretend the right to bear arms is meaningless, and without substantive effect, except for places where the Supreme Court has made it abundantly crystal clear. In fact, they even go so far as to say, “If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly,” as if the Supreme Court didn’t mention in multiple places carry outside the home in Heller.

There was at least one opinion that concurred in upholding the conviction, but added:

While I agree with the majority that the Petitioner’s conviction should be affirmed, I would not hold that the Petitioner’s conduct is “outside of the scope of the Second Amendment.” I would affirm on the ground that, although the Second Amendment is applicable to an “on the street” possession of a handgun, that Amendment is satisfied by a statute that places reasonable restrictions on the constitutional right to bear arms.

A reasonable restriction such as you need a permit that no one can really get. Slightly different way to fry the same fish, but probably on more sound footing than the main opinion. It may be reasonable to require a license, and perhaps Maryland is wronging their citizens by their subjective non-issuance policy, but the proper way to challenge it is the way SAF is approaching the problem. This case can be appealed to the Supreme Court, but for various reasons I don’t think it’s the ideal case to take forward, and suspect the Court would deny cert. I would not like to head back to the Supreme Court with a poorly thought out criminal case.

New case in the fourth circuit. Covered by Dave Hardy here, and Clayton Cramer as well. There have been a few courts that have taken this issue seriously. What interesting about this ruling is that it would seem to have been decided under intermediate scrutiny:

We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond.

Not a clear cut victory just yet, but it’s about as close as we can ask. The shame is this defendant seems a good bit less than ideal.

John Richardson has the details. It looks mostly good from our point of view.