2nd Amendment – Page 35 – Shall Not Be Questioned

Great News

The Second Circuit has ruled that a person has a clear liberty interest in carrying a firearm, and that there are due process interests within the permitting process. At issue would seem to be the claim that the permitting process couldn’t repeatedly demand proof of citizenship (you had to do it to get the permit, so what’s the need to do it repeatedly?). Also it would appear to hinge that the delays areÂ unnecessaryÂ and don’t serve any compelling state interest.

Dave Hardy adds, “Amazing how this legal field has turned around in a year or two.”Â This is a big deal, because this is going to play very much against the City of New York’s entire system of licensing even ownership of firearms, and New York State is part of the Second Circuit. It might be that the courts will allow licensing of the right to own a gun, much like they’ve done with the right to marry, but with significant judicial oversight as to what’s allowed and what’s not. They will only be able to do what is needed to determine your qualification, and nothing more. They won’t be able to put in requirements intended to frustrate the ownership or carrying of firearms.

Ideally, I’d like there to be no licensing, and that’s entirely possible to achieve, but even the allowing of a relatively easy and unobtrusive licensing provision would be a major weakening of the licensing regime for the most restrictive states, to the point where I’m not sure how many jurisdictions are going to bother with them. The entire point of licensing was to frustrate people from exercising their rights. If they can no longer do that, I wouldn’t be shocked to see the requirement start to become viewed as arcane, and for it to be politically easier to remove them entirely. That’s actually been able to happen in a few states that had relatively meaningless permit requirements, namely Missouri and Nebraska. North Carolina also has such a permit, but we’ve not gotten much traction on that issue there, largely because North Carolina has been swelling with population fleeing the northeast and maintaining their voting habits from back home. But the precedent is there.

Is the Sullivan Act appealing once its primary purpose of frustrating the right is no longer served? We might find out.

Pennsylvania Dems Go Far Left on Guns

It’s not just a little gun control the Democrats seeking the gubernatorial bid are going for – they are all in. It’s a sad thing to say – the most moderate only wants to ban your EBRs. And, to some degree, Jack Wagner really only said he supported it previously. I haven’t seen him release an action plan to take them. And, yes, that puts him far above the other options for Democratic gun owners have on their primary ballot.

Take Dan Onorato. Apparently, there was early speculation that he was pretty pro-gun. He squashed that rumor at his campaign launch saying that any speculation about his support of the Second Amendment was “a mischaracterization.” Turns out that may be the understatement of the year.

Yesterday, he released his “plan for safe communities.” In it, we find a plan to end preemption (say goodbye to carry in Philly!), a proposal for statewide lost-and-stolen, and a plan to challenge Heller/McDonald.

Say what?

Yup. Dan Onoranto wants to force all gun owners who have minors in the home to lock their guns. Apparently he missed that key part in Heller:

In sum, we hold that the Districtâ€™s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

You don’t lose your right to read scary news or watch violent movies just because there are kids in the home. You shouldn’t lose your right to self-defense over the same. There is a factor of common sense, but that hasn’t been a serious problem for the overwhelming majority of families. Just like most parents don’t let their 6-year-old watch a gory horror flick or read extremely graphic descriptions of war to them at bedtime, gun owners take care when children are around their guns. There’s a difference between discovering the right solution for your home and the state removing your right to immediately defend yourself and those same children you love.

I think we can all agree that any perception of Dan Onorato supporting civil liberties is, in fact, a mischaracterization. He was absolutely right about that – just about the only thing he’s been on right on in this campaign.

Popular Constitutionalism

From Sanford Levinson, Professor of Law of the University of Texas, on interpreting the Constitution:

â€œIt really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens.Â Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.â€

He must hang out in very different bars than the ones I’ve known, but the assertion is interesting. The article goes on to say:

Those arguments can and should have consequences, according to scholars who endorse what they call â€œpopular constitutionalism.â€ â€œBasically, itâ€™s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,â€ Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.

This is versus originalism, which essentially argues the meaning of the constitution doesn’t change over time, and its meaning is divined either through original public meaning or original intent (of the founders). I’m probably a bit more of a pragmatic originalist. I think you have to be rooted in the text of the document, and when its meaning is apparent and has a clear meaning, you interpret along textual lines. But I also tend to agree with Jefferson, who once wrote:

The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.

My big problem with doctrinaire originalism is precisely what Jefferson speaks of here, of previous generations imposing their “burdens on future generations.” So when Alan Gura, in the the oral arguments of McDonald says the court should be originalists in its identification of a right, but take a modern view of that right, I can relate to what he’s saying.

How much of a role should originalism play in constitutional interpretation versus such a “Popular Constitutionalism” method? Keep in mind you will generally arrive at an individualist Second Amendment either way. But originalism and popular constitutionalism probably yield different results when it comes to interpreting the boundaries of that right. The founders’ concern, which prompted the inclusion of the Second Amendment, had very much to do with the distribution of military power in society and keeping military power be in the hands of the people. It’s not that they didn’t believe in individual self-defense, but that wasn’t the primary intent.Â From the founding up to the civil war, the public understanding became centered around individual self-defense. This is largely the popular understanding today, and what The Court went with in Heller. It’s always seemed to me that original public meaning originalism (as supposed to original intent) is actually a form of popular constitutionalism, though one that looks back at the meaning at the time the text was adopted, instead of how people view it today. A Second Amendment right centered on the original intent distribution of military power probably looks very different from one centered on self-defense in an original public meaning context, which looks different yet from one in a modern popular constitutionalism context.

I’m not sure that any method has to necessarily disparage the other when it comes to the right to bear arms, but which one is most legitimate? Which one is most rooted in the real world? Which one best preserves liberty?

Premature Celebration

The Brady Center are elated over two recent Massachusetts Supreme Judicial Court decision in regards to gun rights. Two two cases are Commonwealth v. Runyan and Commonwealth v. DePina. Both cases rest a great deal of their reasoning on the fact that the Second Amendment is not incorporated against the state. In the latter DePina case, the entire Second Amendment claim would seem to rest on the lack of incorporation, and also on a related state case Commonwealth v. Davis, which gutted Massachusetts’ right to bear arms provision from its Constitution.

There is some glimmer of hope for the Brady Center though, in the Runyan case, the other leg on the Second Amendment claim was that Massachusetts safe storage law is distinct from that of the District of Colombia. The Massachusetts SJC notes:

Under this provision, an individual with a valid firearms identification card issued under G.L. c. 140, Â§ 129C, is not obliged to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual’s control. A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device. The gun owner’s obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner’s immediate control.

That may be so, but the exception only provides for carrying or immediate control. Does that apply to sleeping with a loaded gun in your bedside drawer? It’s interesting that the SJC notes in Footnote Seven:

We note that the Court inÂ Heller, supraÂ at 2820, declared that its analysis should not be taken to “suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” We do not, however, decide whether the defendant’s alleged violation of G.L. c. 140, Â§ 131L (aÂ ), could survive a motion to dismiss if the Second Amendment were made applicable to the States through incorporation under the Fourteenth Amendment’s due process clause.

To be honest, the SJC probably did us a favor by dismissing Runyan, because I don’t really like the facts of the case. Runyan came about because the mentally disturbed eighteen year old son of defendant Richard Runyan was firing a BB gun at his neighbor’s home. When police arrived, they asked the son if there were other guns in the house, which lead to the discovery of an unsecured rifle. Runyan was not home at the time. If G.L. c. 140, Â§ 131L (a) is to be held unconstitutional, Runyan isn’t the case to do it with. The facts of the case are not good. It would be far better to pursue this claim with a defendant who was home at the time police discovered an unsecured firearm. Runyan also possessed an expired license for the rifle, as required by Massachusetts law, so that further complicates the claim. As it is, Massachusetts used to issue lifetime licenses, but later changed the law, so there are a lot of Massachusetts gun owners walking around with licenses that don’t have expiration dates on them, but are nonetheless expired because they were unaware of the change in the law.

We may have better luck going forward, but I would say this wasn’t the case, and that the Massachusetts SJC probably isn’t a favorable venue for future cases.

On Our Side, But Wrong

This article from the Pittsburgh Tribune-Review is on our side, and I’m happy about that, but:

If that indication from oral arguments inÂ McDonald v. Chicago holds true, the court will quash the notion that the Second Amendment somehow is a collective, “militia”-based right. If the rest of the Bill of Rights protects individual rights — and it does — so must the Second Amendment.

We won that argument already, two years ago. This one is just about incorporation.

Great Day

Looks like the transcript just came out. We’re sitting in a bar under the NRA-ILA Federal Affairs office in DC going over it. Chris Cox was kind enough to offer to print out copies for us, which we gladly accepted.

In a way, you’re all probably more informed than me being here in DC on the ground. Having only handheld PDAs, it’s rough.

Everyone I’ve spoken to is optimistic. While the Court seemed to quickly shut down the Privileges or Immunities route, they absolutely grilled into Feldman, the attorney for Chicago, who seemed to have great difficulty with his argument. I asked Dave Hardy as he came out of the court what he thought, and he said, “I think we have five votes.”

Let us hope. We still have a long road ahead, regardless.

The Big Day

Today is the big day. The day the Supreme Court will hear both sides in whether or not the Second Amendment applies to state and local governments through the Fourteenth Amendment, and also on which clause of the Fourteenth Amendment incorporates those rights. I’m about to head over to the Supreme Court building to try to cover the happenings outside. I will try to provide updates on here, but Twitter is going to be easier for me. At this point, it’s probably too late to get inside to hear oral arguments. Reports are that about 50 people were outside as of about 3AM, and 50 is about the number of seats available. Â The Supreme Court is hearing two cases today, which unfortunately reduces seating capacity for McDonald.

Gura v. Henigan

From Fox News:

LA Times Manages to Miss Real Issues

Someone wrote this who kind of sort of knows the legal issues in McDonald, but not really. We’ve already won on most of the issues presented here. This case is about incorporation, they got that part right, but the question presented to the Court is whether it’s incorporated under the Privileges or Immunities clause of the 14th amendment, or incorporated through the due process incorporation route that’s been how we’ve done things in the 20th century. This has implications far beyond gun rights, which you’d expect a newspaper like the LA Times to cover.

Hat Tip to Dave Hardy for the article.Â Hat tip for also choosing a great Chinese place in Northern Virginia for dinner too.

Tag Team: A Dangerous Right

Looks like Saul Cornell and Dennis Henigan have gotten together to disparage the Second and Fourteenth Amendments in this months edition of the National Law Journal. Saul Cornell argues the 14th Amendment has no problem with disarmament, as long as it’s done equally:

There are some facts that are beyond dispute. Although there is ample evidence that the 14th Amendment was widely understood to bar the selective disarmament of blacks by Southern governments, there is absolutely no evidence to suggest that anyone believed that the 14th Amendment prevented the states from passing neutrally applicable gun regulations designed to promote public safety.

The argument would seem to be that because the post-reconstruction courts effectively eviscerated the 14th Amendment, so that Jim Crow could properly imposed on the South, that of course means there was never intended to be any right-to-bear arms, by blacks or anyone. This strikes me as a weak argument given our modern understanding of the amendment, and just so there’s no misunderstanding about the case which Saul Cornell cited, you can read about it here.

Backing up Saul Cornell is Dennis Henigan, who says that guns are such a menace to society that it justifies essentially ignoring, or largely ignoring, one tenth of the Bill of Rights:

There is at least one respect in which the new right to have guns is vastly different than other rights. A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. However the Court decides the incorporation question, its discussion of Second Amendment issues inÂ McDonald and its future Second Amendment jurisprudence must recognize that the Second Amendment is, indisputably, the most dangerous right.

I don’t know about that Dennis. Ideas can be some of the most dangerous things humans can generate, and speech is the primary mechanism by which these ideas are spread. I mean, how many people did this idea kill? Â Or this one? How long did this idea relegate a significant portion of the American population to second class status? This man’s speech and a set of box cutters killed 3000 Americans and dragged us into a decades long war.

Gun are potentially dangerous. No one denies that. But it’s bad ideas, conveyed by speech, that’s responsible for the worst humanity has to offer. In this country, we protect speech, of both good and bad ideas, in the belief that the best way to counter bad ideas is to challenge them with good ones. Does that always work? We accept a lot of risk allowing free speech in society, and most Americans, including me, wouldn’t have it any other way. If the best defense against bad speech is good speech, maybe it’s not too far of a stretch to suggest that the best defense against bad guys with guns is more good guys with guns. Why is that so alien to our constitutional framework?