Category: 2nd Amendment

The Supreme Court has agreed to hear the incorporation case:

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).

Congratulations to Alan Gura, who will be going back before the Court. Let’s hope this works out, but I suspect it will. I think the Supreme Court wouldn’t have taken the case if they didn’t have five votes.

A lot of what we’re seeing from the gun control crowd now, with Bloomberg heading up MAIG, is honestly panic. No New York Mayor has been as big of a pit bull in going after the Second Amendment, but no New York Mayor has ever been faced with the prospect of his own citizens being able to sue to get their civil rights back.

MAIG might be attacking in Pennsylvania, on our home territory, but that’s because Bloomberg knows we will likely soon be attacking the New York City gun control regime, and overturning it. The last time Pennsylvania was invaded, it didn’t work out too well to help preserve the institution that was being fought over. Let’s hope Bloomberg’s luck is about as good as Jeff Davis’.

Law.com has a report from yesterday.  Looks like Jerry Brown really threw a wrench in the gun control works:

“Do you disagree with your own state attorney general?” he asked a lawyer representing the county.

“Yes. Yes I do,” replied Sayre Weaver of Richards, Watson & Gershon.

“I won’t tell him when I see him,” quipped Chief Judge Alex Kozinski, breaking up the courtroom. To which Weaver turned and gestured toward the galleries packed with spectators and press: “I have a feeling he’ll find out somehow.”

Looks like Kozinski was in good form too.  Let’s hope this goes our way.

The en banc hearing is up tomorrow for Nordyke vs. King.  Go read the article. They talk about how former California Governor and now Attorney General Jerry Brown hasn’t been much of a crusader against the Second Amendment, and has not filed a brief in Nordyke. I don’t know if we’ll ever classify Jerry Brown as a friend, but it’s hard to say he’s been an enemy. Even if Jerry Brown is just keeping the heat off, I appreciate that. I’ve heard from someone close to the case that:

[T]he first time the 9th heard the case, California gun owners packed the courtroom (actually we packed 3 courtrooms). We think that our presence reminded the Judges that gun rights are not just about guns, but they’re about people. We intend to do it again on Thursday.

You can find more information on that here. I’d stop by if I were close, but I’m on the other side of the country. Let’s hope this all turns out well for us. We really need to get incorporation.

Bad case, bad defendant.  This was probably a fore drawn conclusion.  Gura’s case in Palmer is different, as he says here:

Alan Gura, the Alexandria, Va. attorney who filed the civil suit, told me on Wednesday evening that he doesn’t think the recent appeals court decision will make much of a difference.

“We’re not challenging the requirement for a license,” Gura said. But, he added, “there has to be the ability for people to quality for a license.”

I fully believe that a requirement for having a license to carry a concealed firearm is not within the spirit of what our founders would have believed about the Second Amendment, but it probably follows the Joe Huffman Corollary:

Infringed rights extinguished for a generation are probably going to go extinct. Think of machine guns in this country and handguns in the U.K. the odds are very slim that those will be regained via political and/or judicial processes.

I think this is unfortunately true, so I can appreciate Gura’s strategy here.  If we’re not going to get unlicensed carry out of the courts, objective criteria is at least better than what you’ll get in New Jersey, Massachusetts, or Illinois.

The Supreme Court might be setting up something very interesting for us.

From the DC City attorney in his Motion for Summary Judgement in the Palmer case challenging DC laws on carrying firearms:

The District’s regulation of handguns at issue here is squarely in the mainstream and eminently reasonable, minimally intruding on the right announced in Heller to bear arms for the protection of “hearth and home,” while at the same time safeguarding public safety under traditional police powers.

I think DC’s attorney is a bit confused as to what defines “mainstream” outside of DC.

Via Dave Kopel:

Heller is the product of a mature current of constitutional thought, spurred by private groups but also by committed academics, that had clearly become prominent in nationwide politics and culture and that, by 2008, had established itself as thoroughly mainstream. In sharp contrast, Griswold was the result of an early effort by an incipient movement for reproductive rights and sex equality that had yet to become highly visible on the nation’s cultural viewscreen. In this sense, Heller has far more in common with Brown v. Board of Education than with Griswold—in the particular sense that Brown, like Heller, was the culmination of a long process of advocacy, in a self-conscious effort to entrench a certain understanding of the Constitution in the interest of social reform. In short, Heller and Griswold have distinctive sociologies. While the two are both responsive to public convictions, the cultural backdrop for the two decisions was radically different.

That’s Cass Sunstein, appointee to the Obama Administration.  He may be an animal rights whack job, but he may very well be the most pro-Second Amendment person nominated to serve in the administration (which isn’t saying much).  Griswold is the case which created a right to privacy, specifically in matters of contraception.  That case was expanded on in Roe and Lawrence.

That Heller is a closer cultural decedent of Brown is a very high compliment.  That’s an accomplishment we can all take some measure of credit for.

Our token gun control blogger MikeB relays an interesting video here:

[youtube]http://www.youtube.com/watch?v=umK8U_FxPic[/youtube]

I think looking at the Second Amendment solely as a means to deter governmental malfeasance is a bit short sighted, and while many activists choose to focus on that aspect, I don’t.  What the Second Amendment really protects, at root, is the right to self-preservation, and I think that is an important right of free people who inhabit a liberal democracy.  In fact, it’s hard to think of any right which is more fundamental than that of self-preservation.  Preventing serious government malfeasance is merely a side-effect of preserving the means to exercise the right.

And understand, the kind of government abuses that the Second Amendment is meant to deter does not sink to the level of the PATRIOT Act.  While I have many problems with more than a few provisions of that act, it was still enacted by an elected legislature, signed by an elected President, and will be scrutinized by functioning courts, all using a Constitution and other bodies of law that we still largely follow.

I generally follow the philosophy of Judge Alex Kozinski, in his dissent in Silveira vs. Lockyer, when it comes to the Second Amendment and its purpose as a check on governmental power:

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

It’s reasonable to say that Lawyers and Money are the most important, but if those don’t work, then what?  If the worst you can think up when it comes to government abuse is the PATRIOT Act, I would argue you’re a poor student of history.  We know just from the twentieth century that human beings are capable of far far worse.  Having a gun never means you’re always guaranteed to come out on top, but it expands your options and capabilities.   Let me ask MikeB, and others like him this: if you were a member of the Secret Police, would you prefer to have to go round up dissenters in Germany?   Or would you prefer to try doing it in Texas, where there will be a gun behind every door you kick in?

Nordyke is going En Banc, meaning it will be heard by the entire circuit.  This usually indicates that the consensus of the circuit is that the decision was wrong, and it likely means Nordyke will be overturned.  This would remove the circuit split, but as Eugene Volokh points out, having two third of state Attorneys Generals speaks loudly, and the other circuit decisions are inconsistent with the Court’s modern incorporation doctrine.  So we might still be going to the Supreme Court with incorporation, but this isn’t a welcome development by any means.

But hey, the 9th is the most reversed appeals court of all the federal circuits.  Maybe this puts us in a better position if the Supreme Court does take up the issue.