2nd Amendment – Page 3 – Shall Not Be Questioned

The Senate Math for CCW in 2017

It’s not looking probable; we would need a miracle. Here’s the breakdown

Starting with the 2013 vote (57 Ayes to invoke cloture), I did up a spreadsheet of the likely vote results in 2017, based on current occupancy, the 2013 vote, and the Senators political stances on the issue.

I came out with maximum of 59 Aye votes (assuming Luther Strange gets to vote Aye or his replacement votes Aye).

The vote delta (because we had both gains and losses)

NH: -1 (Maggie Hassan replaced Kelly Ayotte)

IA: +1 (Joni Ernst replaced Tom Harkin)

SD: +1 (Mike Rounds replaced Tim Johnson)

WV: +1 (Shelley Moore replaced John Rockefeller)

However, what IÂ don’t see is the 60th vote. I broke out the Nay votes who are in seats up in 2018 in states that voted for Trump

Bill Nelson is a hard NO
Claire McCaskill is a hard NO
Sherrod Brown is a hard NO
Bob Casey is a firm No
Tammy Baldwin is a hard NO

And, if anyone flips to be the 60th, I wouldn’t put it past some of the presumptive Ayes to flip to Nay to prevent it. Fix NICS is already being pulled out as a cover for voting Nay (and was used for that purpose in the House).

Now, maybe the GOP leadership knows something I don’t, or this really was a setup to burnish everybody’s 2A pro/con credentials. Whichever way that goes, if you want reciprocity this year, better start praying.

Should Have Cut a Deal When You Had a Chance

Prof. Adam Winkler is taking to the op-ed pages speaking out against H.R. 38, mostly because it lets people from California get an out of state license and carry in their home state. I’d note that previous versions did not have this feature, and were limited to non-residents and only to people with licenses. If gun control folks had cut a deal with us years ago, that’s the law they would have gotten. But they made us wait hoping things would get better for them. They bet wrong, so I have no sympathy. I have no sympathy for the argument that the law is unconstitutional:

The law is likely also unconstitutional. Congress has only limited powers, and the Supreme Court has expressly held Congress has little authority to regulate carrying guns on public streets.

The carry act has language seeking to work around this problem. It is limited to possessing or carrying a handgun that has traveled in interstate commerce. But this is a clear pretext, as nearly all guns travel in interstate commerce. Whether that pretextual hook will be enough for the courts we will have to see.

It’s enough to ban felons possessing firearms and to ban machine guns, isn’t it? Or does the “herpes theory” of the commerce clause only apply when we’re talking gun control, rather than civil rights protection. I’d give Prof. Winkler that there are potentialÂ Bourne issues with the 14th Amendment, but I don’t also see why Congress can’t enact this based either on Full Faith and Credit or its Militia powers. The contours of both have never really been all that extensively litigated. Even BourneÂ may not really be an issue, since it’s arguable that H.R. 38 compliments the right to carry, which was already assumed to exist in Heller. Additionally, H.R. 38 implements the kind of framework which is actually a more apt exercise of Congressional power than Judicial power. So are the Bourne issues really there? Bourne was meant to reinstate the Sherbert test, which SCOTUS decided to abandon. The RFRA specifically was targeted to overturn a Supreme Court decision. H.R. 38 does not do that. The Supreme Court recognized a right to carry in Heller, and applied it to the states under the 14th Amendment in McDonald. If one believes that the federal government has a role to play in civil rights protection, something that liberals used to strongly support, why should H.R. 38 be unconstitutional, rather than an appropriate exercise of Congress’ Section 5 powers of the 14th Amendment?

How Philadelphia Plans to Shut down Convenience Stores that Sell Beer

If you’re Councilwoman Bass, you’ll put them out of business by making them easier to rob.

A controversial bill under consideration would require liquor stores to pull down the bulletproof glass they currently use to protect their clerks. After all, liquor stores are often prime targets for robbery. The glass keeps clerks safe, at least to some extent, and now it needs to come down.

These store owners tend to be Korean, so the accusation is being thrown around that the motivation for this is straight up racism. These business technically operate as restaurants. Convenience stores can’t sell alcoholic beverages in Pennsylvania, so what some stores do is to have a limited menu of items, apply for a liquor license as a restaurant, and then sell takeout, which restaurants are allowed to do.

I covered this issue some time ago, about the double standards at work here, and was very proud to have the current Mayor of Philadelphia tell me to go eff myself. You sell 7% ABV beers to white hipsters and no one cares. Do the same in minority neighborhoods and the world is coming to and end and we must stop it. Hard for me to agree there’s no racial issues at work here. I get the concern over social problems, but last I checked, dealing drugs, public intoxication, and public urination (all mentioned by Councilwoman Bass) were all crimes. Maybe address those issues, rather than targeting people who run the stores and ultimately their customers, many of whom probably just want a beer at the end of a hard day like we all do.

It is absolutely beyond the pale that this Councilwoman would see people get shot and stabbed. She should be ashamed for even proposing this. I would argue that armor are arms, and a bill like this should be properly found unconstitutional under the 2nd Amendment.

Movement on National Reciprocity

House Judiciary Committee approves HR38 by a 19-11 vote. Lately we’ve had some argument within the community about the powers National Reciprocity, and the power thatÂ is based on.

H.R.38 should be amended to (1) unhinge it from the constitutionally- antagonistic Commerce Clause doctrine, and (2) expressly provide statutory protection of the fundamental, individual rights under the Second Amendment made applicable to the States and local governments by the Fourteenth Amendment.

I’d note that H.R. 38 does not go into any detail about which federal power it’s based on, and frankly, it doesn’t have to. There’s not requirement that Congress enumerate what powers it’s using and it doesn’t always do this. Any and all arguments about this being within Congress’ enumerated powers can and will be made when this law is inevitably challenged in Court. There is more than one power that plausibly supports H.R. 38 and the Fourteenth Amendment is one of them.

But whether the constitutionalist in us all likes it or not, the most solid framework National Reciprocity rests on is the commerce clause. This shouldn’t be, but based on existing court precedent, it is. There are serious Bourne issues arguing the 14th Amendment. So here’s the question: do you want to win, or do you want to participate in a constitutional debating society? Note that the test cases for this are likely to involved good people risking many years in prison. I’m absolutely comfortable arguing anything that will prevent this from happening. My conscience will be clear, because if the Courts actually did their jobs, the Constitution would mean you can carry anywhere already. If I have to fight within the framework they created to achieve that, so be it.

Understand that the entire felon-in-possession statute, all of 18 USC 922(g), 922(o), rely on “that has been shipped or transported in interstate or foreign commerce.” The federal courts are going to be very reluctant to start rocking that apple cart. But yeah, we could be pure and only make the 14th Amendment argument. And the courts, which are going to be looking six ways from Sunday to invalidate National Reciprocity, especially in the hostile jurisdictions it’s likely to face challenge in, will just cite Bourne and be done with it. Off to jail with the unlucky bastard who ends up being the test case. Good luck with life on the inside while you await your appeal.

No, we make the commerce argument, along with anything else that could possibly uphold this. It might not please the constitutional debate society, but I’m tired of that shit. I want to win. I want our rights protected, and I don’t care if I have to work in whatever shitty framework the courts have laid out for me.

Hardly a Surprise

SCOTUS has denied cert in the Kolbe case challenging Maryland’s assault weapons ban. They have also denied cert in Norman v. Florida challenging Florida’s ban on open carry.

Heller and McDonald are all we’re getting out of this court. That much is apparent. We need to change one, possibly two justices on the Supreme Court of we’re going to take the Second Amendment any further. That’s just the way it is.

No Right to Sell Arms

The 9th Circuit sitting en-banc has ruled there’s no particular Second Amendment right to sell guns. So that means you can own one, but the government doesn’t have to let anyone sell it to you. At least one judge dissented from the facial challenge, and another concurred on the facial challenge but “dissented from the dismissal of the constitutional challenge as applied to plaintiffs, stating that the majorityâ€™s analysis of the Second Amendment challenge to locating a full-service gun shop in an unincorporated area of Alameda County substantially interfered with the right of its customers to keep and bear arms.”

If there’s a right to bear arms, there has to be a right to sell them. That’s like arguing for freedom of the press, but it’s illegal for anyone to sell presses. They’d never accept that in a First Amendment context.

The courts will continue to read the Second Amendment into meaninglessness unless the Supreme Court steps in to stop them.

DC Won’t Appeal Concealed Carry Ruling

They made that mistake before. I’m guessing they don’t want to risk a change on the court, which would mean that ruling would end up applying to the whole country. That’s the mistake they made with Heller. I’m also sure they figure they can make the requirements so onerous that as a practical effect no one qualifies for a permit to carry. It would probably be preferable for Congress to act to fix these issues, and remove DC’s ability to regulate firearms.

DC Circuit Overturns “Good Cause” Requirement

This opinion was just handed down today, before Judges Griffith and Williams who were in the majority, and Judge Henderson who dissented. I’d note that Judge Griffith was a George W. Bush appointee. Judge Williams was a Reagan appointee, and Henderson an George H.W. Bush appointee. Elections do matter, and as I’ve said before, we can move the ball forward even with very flawed candidates.

This point brings into focus the legally decisive fact: the good-reason law is necessarily a total ban on most D.C. residentsâ€™ right to carry a gun in the face of ordinary self- defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. We say â€œnecessarilyâ€ because the law destroys the ordinarily situated citizenâ€™s right to bear arms not as a side effect of applying other, reasonable regulations (like those upheld in Heller II and Heller III), but by design: it looks precisely for needs â€œdistinguishableâ€ from those of the community. So we neednâ€™t pause to apply tiers of scrutiny, as if strong enough showings of public benefits could save this destruction of so many commonly situated D.C. residentsâ€™ constitutional right to bear common arms for self-defense in any fashion at all. Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test that was appropriately written and applied, so we strike down the Districtâ€™s law here apart from any particular balancing test.

Finally, a court willing to reject interest balancing approaches to the Second Amendment! The ruling upholds licensing for carry, which is disappointing, but at this point eliminating “good cause” requirements and rejecting the assertions that entire cities can be off limits to carry is a step in the right direction.

We pause to draw together all the pieces of our analysis: At the Second Amendmentâ€™s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense.

One thing I’d notice, however, as we look toward this case possibly moving forward, is that Justice Kennedy has not announced any retirement, and it’s getting late in the summer. The Court goes back to work September 25th.

Bucking Precedent

While I was taking a break over the week of the 4th of July holiday, a ruling was handed down by a federal court in California enjoining the state from carrying out its confiscation of standard capacity magazines. Dave Kopel’s article about the case is the best I’ve seen, so read the whole thing.

The court ruled that the Second Amendment was implicated in the magazine ban and such a ban failed intermediate scrutiny. To me this should trigger strict scrutiny, but intermediate scrutiny, prior to Second Amendment law, was still a pretty high standards if Courts actually applied it. The problem with what the lower courts have done is they’ve taken to just reclassifying rational basis review as some higher level of scrutiny, and so far SCOTUS has allowed them to get away with it.

The court here also ruled that the taking was an issue, that essentially the state can’t confiscate property without fair compensation.

It will take courts willing to buck precedent in the future if the makeup of SCOTUS improves, so that we can move cases forward. There are judges out there that think what the lower courts have done with Second Amendment law is wrong and are willing to help us address that. It should be noted that Judge Benitez, who wrote the opinion in this case, was appointed by George W. Bush. It is possible for us to improve our lot even with very imperfect presidents in the White House.

Cert Denied in Peruta v. California

The Supreme Court will not hear Peruta. It looks like Thomas and Gorsuch dissented from the cert denial, signaling that Gorsuch is willing to take the torch from the late Justice Scalia when it comes to Second Amendment issues. From the dissent, written by Justice Thomas:

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to â€œbear armsâ€ means to â€œwear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offenÂ sive or defensive action in a case of conflict with another person.â€

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiÂ quated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

Also, some tea leaf reading: if Kennedy retires this summer, as is rumored, if you ask me it’s a strong signal that he’s not the weak link in the Heller majority. The case would be heard before whatever justice replaces him, which given Trump’s short list, is liable to be good on the issue. I’ve long argued that I believe Roberts’ judicial minimalism is the issue we’re up against, and not Kennedy’s tendency to switch hit. Though, it could be a combination of both.

What we do know is that Thomas, Alito, and now Gorsuch have written or joined forceful dissents of the Supreme Court abrogating its responsibility to the Second Amendment. That’s three solid votes. Unfortunately, we need five solid votes to move the ball forward.