Clayton Cramer takes a detailed look at Chicago’s Amicus brief filed on behalf of the Chicago Board of Education, and various other parties. Clayton says it’s “Embarrassingly Bad.”
Category: 2nd Amendment
Incorporation Podcast
I appeared on SnarkyBytes podcast “Vicious Circle” last night to talk about the 9th Circuit decision on incorporation of the Second Amendment. My segment starts at about 21:50, or about a third of the way through.
9th Circuit Incorporates Second Amendment!
In the Nordyke case, linked here.  More commentary to follow. Nordyke was the case where county officials kicked a gun show off of county property. Nordyke argues that violates Second Amendment rights.
UPDATE: An excerpt:
The County does little to refute this powerful evidence that the right to bear arms is deeply rooted in the history and tradition of the Republic, a right Americans considered fundamen- tal at the Founding and thereafter. The County instead argues that the states, in the exercise of their police power, are the instrumentalities of the right of self-defense at the heart of the Second Amendment. This argument merely rephrases the col- lective rights argument the Supreme Court rejected in Heller. Indeed, one need only consider other constitutional rights to see the poverty of this contention. State police power also covers, for instance, some of the conduct the First Amendment protects, but that does not deny individuals the right to assert First Amendment rights against the states.
[…]
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.†Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.†Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
So they took the due process clause route, rather than the privileges and immunities clause route. But the ruling is a great victory for our side regardless.
UPDATE: I should note this ruling only applies to those states in the 9th Circuit Court. Those states are Montana, Idaho, Washington, Oregon, California, Nevada, and Arizona. If you live in those states, congratulations, the Second Amendment now applies to your states and local governments (that means you, California). The County of Alameda will be able to appeal, naturally, first to the entire 9th Circuit, en banc, and then to the Supreme Court of the United States.
UPDATE: Dave Hardy has more. It looks like the ban on gun shows on county property is being upheld as reasonable under the Second Amendment, even though we won on incorporation. This means that Alameda technically won the case, and the decision can only be appealed by the plantiffs. This means the incorporation decision will likely stand in the 9th circuit.
Total Bans on Juvenile Possession
Professor Volokh takes a look at the issue of under-21 possession on possessing any firearm in New York City.
Would the right to keep and bear arms not fully apply to under-21-year-olds, the way some constitutional rights today don’t fully apply to under-18-year-olds (consider the right to sexual autonomy, the right to marry, the right to abortion, which could be limited through certain kinds of parental consent laws, and likely the right to bear arms itself)? Or does the right apply to all adult citizens — unless otherwise disqualified by reason of felony conviction or the like — under today’s age of majority, regardless of what the age of majority was at the time? Or has the right always extended to everyone 18 and above, regardless of the age of majority for other purposes?
I’m going to guess, as with most rights, some restrictions will be permitted while others will not. At the very least, I would imagine it would be unconstitutional to ban all juvenile possession of arms, for any purposes.  But it’s a good question to start asking.
Interesting Second Amendment Case
This case Eugene Volokh highlights challenges part of California’s Welfare and Instutions Code, which bars people who have been involuntarily admitted for mental treatment from possessing firearms for a period of 5 years. I believe this section would also apply a federal ban as well. The plaintiff in the case went through the normal channels for relief from this type of firearms disability, and was denied.
The question is whether or not a “preponderance of evidence” standard is sufficient to deny Second Amendment rights, or whether a stronger standard, such as “clear and convincing evidence” need to be required for a civil commitment. The court reasons:
When evaluating whether the private interest affected by the civil proceeding requires a standard of proof higher than the preponderance of the evidence standard, the courts consider “the nature of the private interest threatened and the permanency of the threatened loss.” (Assuming arguendo the Second Amendment applies to the states, under Heller an individual’s right to possess certain firearms in the home for defensive purposes is of constitutional stature. However, under section 8103, the deprivation of this interest is temporary, lasting for five years. Further, the loss concerns the loss of property, and does not involve deprivation of physical liberty or severance of familial ties. The deprivation is not akin to the types of cases -— such as termination of parental rights, civil commitment, or deportation —- where a clear and convincing evidence standard is typically imposed. Moreover, although the loss of the right to possess firearms can impact an individual’s ability to defend him- or herself, the deprivation does not leave the individual exposed to danger without recourse to other defensive measures, such as installing home security devices and summoning the police.
The court goes on to argue that balancing the consequences of a mentally unstable person having a gun, versus the temporary loss of liberty favor using preponderance of the evidence standard.
What I don’t quite understand is why, in a case like this, the “clear and convincing” standard isn’t sufficient? I would imagine even under that standard this guy is pretty clearly and convincingly mentally disturbed. I think the court also errs in assuming that substitutes are as readily effective. As someone in the comments point out, “Those alternatives were just as available to the residents of Washington DC, but the supreme court rejected such reasoning when presented by the DC government.”
I can understand why the judge felt the need to reach this conclusion, because this person is a poor plaintiff to be making Second Amendment claims. Who wants to be responsible for allowing a mentally disturbed individual access to firearms? But I think the standard is too low, and relegates the Second Amendment to second class status among our panoply of rights.
I’d say I hope the case is appealed, but this plaintiff is awful. It would be ideal to appeal a better case, but we might not get ideal.
Saul Cornell Responds to Hardy
As Dave Hardy mentioned over on his blog, Saul Cornell published a law review in response to Dave’s earlier review article on the lecture notes of St. George Tucker. I’m not sure what’s more amusing, the degree Cornell is willing to go to ignore or downplay Tucker’s blatant reference to self-defense in regard to the Second Amendment, or the fact that we now have liberal scholars lecturing conservatives on not being good originalists!
Harder Questions on Political Disputes
Joe Huffman makes the legitimate observation that most of the issues I mentioned in the last post were pretty easy, but mentions they can be harder:
How about question such as banning all semi-automatic firearms? Or nationalization of the banking industry? Nationalization of the oil/energy industry? Nationalization of telecommunications industry? Nationalization of health-care? Nationalization of the software industry? Nationalization of all corporations? Confiscation of all real property?
With the exception of the banking industry, and possibly health care, most of those aren’t currently on the table, and I was more attempting to frame the issue in what we’re dealing with today. Even Obamacare doesn’t go as far as nationalization of health care (so far), and governments have been so heavily involved in banking since modern banking emerged, that I’m not as concerned about the prospects of some banks being nationalized, especially if it’s under the auspices of the FDIC process for insolvent banks.
But there’s little doubt we’re slowly moving toward many of these things. I don’t think there’s an easy answer to the problem. Unless there’s some majority, or even a sizable minority, I’m not sure how you have an organic “people” who can offer legitimacy to a government through their consent to be governed by it. If a majority of people are happy or indifferent with a slow creep toward social democracy, I’m not sure what can be done to stop it. In other words, I don’t think the Second Amendment provides a solution for the boiled frog problem. The idea being if you want to cook a frog, if you throw him into boiling water, he’ll just jump out. If you put him in cold water, and slowly turn up the heat, he’ll never realize he’s being stewed.
I heard it suggested tonight that John Edwards is actually right, and that there really are two Americas. I sometimes wonder if our political discourse is devolving to the point where the two Americas won’t be able to tolerate being in one America with the other. Last time that happened, things got ugly.
The Boundaries of the Second Amendment
SayUncle brings up a post from a blogger who is unhappy about some of the stuff appearing on the Free Republic.  Stuff which is pretty tame by Internet standards. SayUncle comments:
Any way, I don’t mind so much. The Bush years turned a lot of lefties into gun nuts. In fact, the picture that Mr. Fifth Of November Poser used was prominent on a lot of lefty, pro-gun sites. Looks like the Obama years will get a lot of righties back into the gun rights movement.
I agree with Uncle to the extent that it’s making people understand, in an abstract way, why the Second Amendment is important, but I can sympathize with concerns about people speaking of revolution as a means for resolving disputes among political factions. When I think about the Second Amendment philosophically, at least its collective purpose rather than its personal one, I think of it as a means for ultimately enforcing Popular Sovereignty as the source of government legitimacy. It restricts the government’s power only to those actions which embody a will of the people as a whole, and seriously raises the cost of defying that will. In other words, you “vote from the rooftops” because you can’t, in a meaningful way, vote from the ballot box. I’m less sanguine about arms as a means for resolving domestic political disputes between quarreling factions. Down that road lies disaster, and the end of our Republic. Political disputes should be resolved with words, ideas, activism, organization, campaigns, and civility. Arms are for extreme circumstances.
I am sympathetic to those that believe Democracy is two wolves and a sheep deciding what’s for dinner, and the Second Amendment was meant to allow the well armed sheep to contest the vote. I do not believe we ought to worship at the altar of Popular Sovereignty to ridiculous levels. If a majority of Americans ever vote for a government that advocates exterminating an unpopular minority, I will agree we ought resist it, with violence if necessary. If a majority acquiesce to Congress unilaterally dissolving our Republic and reforming it around a Parliamentary model, I would agree that should be a deal breaker as well.
But no one is seriously proposing these things, and what is being proposed is in the realm of peaceful partisan politics. I’m not going to machine gun my fellow man over medicare, or take out a tank over taxes. I won’t shoot it out with a subgun over the stimulus, nor defend my construction of the commerce clause with continuous cannonade. We have a system that allows us to redress that peacefully, and without annoying, aggravating alliteration. While I share Uncle’s sentiment about making more people see the importance of the Second Amendment, I worry greatly about what people are thinking it’s actually for.
Bump on the Road
The Second Circuit seems to have ignored some important dicta in regards to the Second Amendment and ruled that the Second Amendment doesn’t apply to the states, citing Cruikshank. In Heller, The Court said:
With respect to Cruikshank‘s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
I would seem to be that would require some more serious analysis on the part of the circuit court. Looks like it was a nunchaku possession case that is less than an ideal case to take forward, but not much is going to stop defense lawyers from hopping in the Hellermobile for a little joyride with their clients. Hopefully we can have better luck in other federal circuits before someone wraps it around a telephone pole.
Amicus Briefs Filed in Chicago Case
Today, the Congress of Racial Equality, the Independence Institute on behalf of a coalition of law enforcement organizations, Institute for Justice, the Constitutional Accountability Center on behalf of constitutional law professors, and 70 state legislators from Illinois, Indiana and Wisconsin submitted amicus curiae briefs in support of National Rifle Association’s (NRA) appeal of the City of Chicago and the Village of Oak Park’s unconstitutional bans on handguns.
I anxiously await the Brady amicus brief. As Dave Hardy pointed out, if Heller is such a great thing because it takes the fear of a total ban off the table, and open the possibility gun owners will accept more reasonable gun control laws, then incorporating Heller should be 50x better!