Category: 2nd Amendment

Eugene Volokh has the story here, and notes:

The reasoning, I’m afraid, is pretty sketchy; it may well be, for instance, that the Second Amendment rule applicable to the government acting as proprietor should be less protective than the rule applicable to the government acting as sovereign, controlling behavior on private property. That’s certainly so in large measure for the First Amendment, the Fourth Amendment, and substantive due process. But it doesn’t follow that there’s no protection offered by the Second Amendment there; that, I think, should take more argument. Nor is it clear that the “sensitive places” exception from Heller should cover parking lots as well as buildings — Heller itself, of course, was quite opaque about the scope of this exception, but I wish that courts applying it went into somewhat more analysis about what makes a place “sensitive” enough to justify gun bans.

Another case of the courts just citing Heller without doing any serious analysis. This opinion is considered “unpublished” which means it does not have precedential value.

UPDATE: Just to make it clear what I think Prof. Volokh is speaking about here, the government may exercise power as a proprietor, and eject someone carrying a firearm from its premises, but when it brings criminal charges unrelated to the exercise of its property rights, it exercises its power as a sovereign, to punish the deed of carrying a gun in a government building.

Clayton has a very good article up over at Pajama’s Media, and it discusses a topic we spoke about a bit yesterday, namely whether the Court will choose to incorporate the Second Amendment through the traditional due process clause, or the privileges or immunities clause:

This could be a momentous decision. I can understand why the Supreme Court might look at the mess it will create if it admits that all of these previous selective incorporation decisions were wrongly made — because so much of our current society is based on these decisions. Perhaps they will decide to incorporate the Second Amendment through privileges or immunities and pretend that the results are pretty much the same either way. The results, however, will provoke a firestorm of suits seeking clarification, of that I can assure you.

I would imagine the Court can overturn Cruikshank without overturning its due process based decisions, and make a reasonable argument that incorporation can be reached through both mechanisms. But Clayton is right about the potential mess the Court could make if it choose the privileges or immunities path. Clayton speaks about one complication in regards to corporations, but there’s another complication as well. Is the right to be indicted by a grand jury amoung the privileges and immunities of citizens of the United States? It would certainly appear so, but the Supreme Court has never incorporated the right to be indicted by a grand jury, a positive right rather than a recognition of a natural right, against the states. Pennsylvania is one state that does not use grand juries to bring criminal charges, except in rare circumstances, though the other states in the Third Circuit, New Jersey and Delaware, both do.

It’s the complications that overturning Cruikshank presents that makes me skeptical the Court will want to go there, but I’m holding out hope.

There are a few ways to interpret a law or constitutional provision, and one of those ways is originalism. Originalism can generally be decided into two categories. Original intent, which is interpreting according to some divined intent of the founders, is one of those methods, and though largely disfavored now. More favored is the second method, which is original public meaning, which serves to illustrate what people at the time thought the words meant.

For something like the Second Amendment, for which there has been little case law, it’s relatively important to understand what people thought it meant back when the constitution was first adopted, and in the early years of the Republic. That’s why many of the briefs in Heller, and the opinion itself, cited so many sources that were contemporary with the Bill of Rights in order to uncover the how people understood the words at the time of its adoption.

One lefty blogger is rather upset that one of those contemporary sources used is Scott v. Sanford, or the infamous Dred Scott case:

In one of the weirdest aspects of the Second Amendment debate, it has become acceptable to quote Dred Scottas a legitimate constitutional authority. This is one of the most thoroughly discredited cases in Supreme Court history, there is a run up between this case Korematsu v. United States, 323 U.S. 214 (1944) and Buck v. Bell, 274 U.S. 200 (1927) for most disreputable Supreme Court Case. Dred Scott is considered to be the product of an overly ideological and reactionary judge relying on poor scholarship and weak legal reasoning in an effort to shape public policy.

It is in the context of originalism that one small part of Scott is quoted:

It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

The interest in this passage is not in the value of the ideas presented here, which today we properly recognize today as racist and dreadful, but it tells us that people of the time recognized the right to “keep and carry arms wherever they went” as being within the collection of rights that citizens enjoyed. It tells us that a Supreme Court justice believed that.

Of course, Scott is only a small part of the framework on which the originalist case for the Second Amendment rests. For the rest of it, there probably isn’t any better source now than Heller itself.

More interesting will be the McDonald case, which will rest on the original meaning of the 14th Amendment. There’s a strong possibility the court may finally be looking at overturning US v. Cruikshank, which was another racist and wrongheaded ruling, which gutted the “privileges and immunities” clause of the 14th Amendment, originally intended to protect the civil rights of freed blacks during the Reconstruction Era.

I find it ironic that a lefty blogger who rightfully hates Scott, doesn’t seem to appreciate the opportunity to actually fix a great wrong here with the McDonald case. While Scott was never formally overturned, its holding was essentially rendered moot by the passage of the 13th and 14th Amendments, and isn’t really legally relevant today. But Cruikshank is still valid law, and it’s holding is nearly as racist and disgusting as Scott‘s. It might not have said blacks aren’t citizens, but it at the least said the 14th Amendment didn’t protect any rights they might have had to, you know, not be murdered. Let us hope that the Supreme Court does the right thing and reverses Cruikshank by incorporating the Second Amendment under the Privileges and Immunities clause of the 14th Amendment. I would think that something a lefty could appreciate, even if they don’t much like the Second Amendment.

From Broward County Florida:

Goldstein, who lives in Hallandale Beach, is a Holocaust survivor whose family was forced out of its home in Romania and into a ghetto.

“We went through hell,” she said. “We could not defend ourselves.”

Goldstein said that is part of why she feels passionately about the Second Amendment’s right to bear arms, which she said provides “the freedom that I know I can defend myself.”

Good for her. She’s been a member of the NRA for years, but hadn’t shot a gun until now. Follow the link for video.

Kay Bailey Hutchison plans to file a brief in McDonald. But I don’t mean to be too cynical. This is a vitally important effort, and it will be a tremendous help in showing the political branches are behind the Court ruling in favor of McDonald. Hutchison deserves credit for spearheading the effort.

The First Circuit Court of Appeals, which covers the states of Massachusetts, Maine, New Hampshire, and Rhode Island, has upheld the ban on possession of handguns by juveniles. You can read the opinion here. I’m happy the Circuit Court in this case took the time to do a careful analysis and lay out its reasoning for upholding the law against the Second Amendment claim.

The Circuit Court basically took a two pronged argument, showing that there are many longstanding state analogues to the federal law that go back to the post-Civil War era, and also hypothesizing that the founders would have intended juvenile possession to be outside the protections of the Second Amendment, using state laws that exempted children from militia service as evidence of their unsuitability to bear arms. Never mind those statutes also exempted women and the elderly. I’m also not pleased to see the Circuit Court adopt Saul Cornell’s “civic right” characterization of the Second Amendment. But it is at least treating the subject seriously, not just pulling some dicta from Heller that seems to support the position and being done with it.

The Circuit Court also points out the claim made by the appellant in this case that the YHSA is identical to the prohibition in DC is incorrect, considering the YHSA contains exceptions for possession for self-defense in the home, and for supervised possession for other lawful purposes, which the DC law did not. An interesting argument would be what if the YHSA had not done this, but simply banned handgun possession by minors in its entirety? Surely juveniles have to retain some right to keep and bear arms, even if that right is more limited than that of an adult.

What’s more disappointing is the failure of the commerce clause arguments. I guess it’s time to admit that Lopez only means Congress needs to be more careful drafting laws, rather than actually preserving any semblance of federalism. Juvenile possession is not properly regulated the federal level. Many states, including Pennsylvania, allow juvenile possession under limited circumstances, but less limited than the federal standard. For example, the federal statute covers handgun ammunition, but there’s so such provision in Pennsylvania’s Uniform Firearms Act, which only restricts possession of handguns to minors, which exceptions. The federal statute also requires written consent, which the UFA also does not require. This potentially opens up the possibility of a juvenile being in legal possession in his state, but still subject to federal prosecution because his parents did not fulfill one of the federal requirements, or fell out of one of the federal exceptions.

With the Supreme Court ready to hear the next case in what’s going to be a long stream of Second Amendment litigation, the pessimists are coming back again.  Both here in my comments and at SayUncle. I can’t say I really understand it, and still stand by Heller being a significant victory.

One of the things I’ve noticed about gun owners is that there’s a certain characteristic about many that make them revel in victim hood. To some degree, I can understand this, because for a large part of the last century, we spent it on the defensive, and there have been a lot of cultural changes in the country that many gun owners haven’t been happy with. But I don’t think that’s a reason for continuing pessimism and victim hood.

Are we going to get machine guns down at the corner hardware store for all? Probably not without a titanic shift in public opinion on the matter. But we can probably get a pretty broad Second Amendment right. There is no constitutional right that is absolute. Not having any restrictions at all on guns was never in the realm of possibility. But if you had told me at the beginning of this decade that the Supreme Court, out of the gate, would throw out a safe storage law, and that DC’s handgun ban would be history, I would have said you were nuts. If you had told me Chicago’s handgun ban would be in serious jeopardy by the end of the decade, I would have said you were a wild eyed, cheery optimist. But that is now the reality we live in.

It would have been nice if the Supreme Court had just ruled “It’s an individual right suckas, and for the states too! Machine guns for everyone!” but that wasn’t even going to happen. What did happen was pretty good, and better than I would have imagined was possible. It’s time for gun owners to stop wallowing in the victim hood mentality. It accomplishes nothing except disabling us from pursuing further victory. You’re declaring defeat before we’ve even begun this stage in the fight. Heller offers us a lot we can use to expand Second Amendment rights. Far more than it offers the other side. That the other side would grasp on to the few morsels that were left in there for them is understandable and predictable. But we won that day. They didn’t. They know that too, but can’t admit that much in public. I think we will win the day again. We’re not victims anymore. We’re winning our rights back.