Category: 2nd Amendment

Dave Hardy, who has done a good bit of academic work discrediting the Heller dissent, notes that it was the dissent that took the insurrectionist view of the Second Amendment, arguing that it had nothing to do with self-defense.

Alan Gottlieb, on our victories in McDonald and Heller:

Gottlieb attributes the rapid turnaround in part to the brazen overconfidence of gun controllers. If Washington, D.C., had not challenged the March 2007 appeals court decision overturning its highly restrictive gun ban, the Supreme Court would not have had the opportunity to declare in Heller that the Second Amendment guarantees an individual right to arms. If Chicago had not insisted on maintaining its gun ban after the Heller decision, there would have been no McDonald, and the question of whether the Second Amendment binds states and cities would have remained unsettled. “We needed a little luck, and the other side gave us that luck,” says Gottlieb. “Our opponents are our biggest supporters.”

Read the whole thing.

There has been some Shenanigans happening in the case of Ezell v. Chicago. Ezell is the case that challenges Chicago’s prohibition on shooting ranges on both First and Second Amendment grounds.

Alan Gura is the attorney in this case, and I’m fortunate to have seem seen some of the transcripts from this case so far. In short, here’s what’s going on. Everyone was playing nice with each other until Chicago filed a Motion to Reassign for Relatedness, suggesting that Ezell is close enough to Benson (NRA funded case) they ought to be heard by the same judge. Gura perceived this as a delaying tactic, and retaliated by filing for a Temporary Restraining Order (TRO), asking the court to stop the city from enforcing the range ban until the preliminary injunction is ruled on. The standard for this would seem to be irreparable harm.

Short of it is that the judge denied to TRO, using an intermediate scrutiny standard. I should note that from the transcripts, he denied without prejudice, which means the plaintiff is still free to raise the argument that strict scrutiny ought to be the standard later in the case. The judge seems to have an open mind, and a desire to take the issue seriously, which is why I would imagine Chicago would like to get this case reassigned.

I would be bad if Ezell were eventually consolidated with Benson. They are very different cases, Ezell is narrow, and the other very broad. I don’t think it would be wise to put all our eggs in one very broad basket, with lots of issues for the Court to consider.

Looks like some folks in Georgia are suing over the state law that prohibits guns in churches. At the first stage, it would seem to have not managed to get a preliminary injunction against enforcement of the law. The lawsuit also makes a First Amendment claim. This is an interesting case, but not one I think is wise to make this early. We need the Courts to say there’s a right to carry outside the home first. Heller strongly implied that there was, but I’m not sure the case I’m comfortable doing that with is a fairly narrow ban of guns in churches. At some point we’re going to need to litigate on this issue, but I don’t think now is the time.

They appear to want to proceed with the lawsuit on their safe storage ordinance, and have proffered perhaps one of the most stupid quotes I’ve seen from a politician in a long time:

“When this legislature passed these laws, they were constitutional,” said Legislator Martin Rogowsky, D-Harrison, and chairman of the Committee on Public safety and Security. “If we were passing the laws today, we might pass the same laws.”

No. They were always unconstitutional, the Supreme Court just hadn’t told you yet. Now they have. The Supreme Court threw out safe storage laws that made a firearm unavailable for self-defense. All they are doing is wasting the tax dollars of the residents of Westchester County on a pointless lawsuit.

The safe storage law requires that unlocked guns be in the owner’s immediate possession. It does not make an exceptions for households without children. It’s just a hair less restrictive than DC’s “safe storage” law. It should be a pretty unambiguously unconstitutional.

That’s what Jon Stewart calls NRA members.

Watch the clip, and wait for the entire segment.  It is a great reminder of what a powerful speaker Charlton Heston really was when he was presiding over the NRA. Enjoy the video. You won’t hear top lefty entertainers say this too often: “The point is, I was wrong and Heston was right. … He’s still right.” (Video found via Radley.)

John Richardson has the details. It’s being funded by the Mountain States Legal Foundation. I don’t know much about MSLF, or their experience in running gun cases, or appellate level litigation, but the case looks pretty good. It’s essentially an Ohio woman who is challenging the FOID requirement, because they don’t issue FOIDs to out-of-state individuals, and require one to keep a loaded gun in your dwelling. It’s seeking injunctive relief, either to keep the State of Illinois from enforcing the FOID requirement on non-residents, or forcing them to issue FOIDs to non-residents. I’m hoping they do the former. This looks like a carefully thought out case, and isn’t asking the Court to do a lot. I wish them luck.

I’m very pleased with this new SAF and ISRA lawsuit against Chicago. Though the earlier NRA-backed Benson v. Chicago lawsuit takes a kitchen sink approach, which would include this question, SAF seems to be taking a more narrow strategy. I think this is smart. Depending on what happens, on appeal the court it ends up before might not want a kitchen sink case, and I believe it’s beneficial for us to have a narrow case available as well.

Randy Graham, vice president of Action Target, said, “We believe that citizens have a constitutional right to use and train with firearms in a safe and controlled environment. As a leader in the firearms training industry, Action Target is committed to standing up for these rights.”

And we want the courts to say that the right to keep and bear is also the right to practice with arms. That opens the door to many possibilities in terms of expanding this right. The First Amendment angle on this is also interesting. It would appear that they are essentially arguing the ban on public ranges prevents education in firearms, which violates free speech. It almost sounds like a stretch, but when you think about it, would a ban on, say, chalk boards be constitutional if it interfered with teaching English Literature? What if there was no reasonable substitute? What if you could show the law was specifically intended to frustrate teaching of English Literature? In a different context it’s very plausible.

UPDATE: John Richardson notes that the Benson complaint has been amended, and is now less of a kitchen sink approach. He also notes which counts they dropped. This looks sensible. A lot of the dropped complaints still made sense, but probably not all for a single case.