Category: 2nd Amendment

See Alan Gura’s update here.  Looks like all the Chicago-area cases are being consolidated on appeal.  Let’s hope we win on this.

Eugene Volokh points to a case in the federal courts.  If I’m reading it right, judge rules that as applied to the defendant, that 18 USC 922(g) is constitutional, but suggests that the felon-in-possession statute is “strikingly large” in scope, and that the scope in some situations should be called into question under Heller.  I think this is a sensible approach, and I’m glad to see some judges taking it seriously.  There does need to be some limits to state power to remove this right. Otherwise, what is to prevent a state from arguing that, say, careless driving shows a serious lack of judgement, and anyone convicted of such an offense clearly does not have the judgement necessary to own a gun?  I would not argue, as some would, that any prohibition is unconstitutional, but not all crimes can be considered disabling for the purposes of exercising that right, and the courts owe the public well reasoned opinions as to why certain crimes should and should not be disabling.

In the Second Circuit, a District Court rules that mere accusation of a crime is not sufficient for stripping someone of their Second Amendment rights.  This is another baby step on a long journey of having the Right to Keep and Bear arms held to the same standard as other important constitutional rights.  Hopefully this won’t be an aberration.

Randy Barnett discusses Nelson Lund’s criticisms of Justice Scalia’s originalism in Heller.  I agree there are a number of problems with the Heller decision, particularly in the guidance it offers as to the scope of the Second Amendment.  Read the whole thing, including Lund’s article.  It’s worth your time.

Dave Hardy takes the Stevens dissent in Heller to task in a Northwestern University Law Review.  A nice Christmas present to the gun community.  Discrediting the Heller dissent will be important going forward.

Just got an e-mail from The Independent Institute, where Steven Halbrook is a research fellow, on the success of the Second Amendment Book Bomb so far:

As an update, our book THE FOUNDERS’ SECOND AMENDMENT: Origins of the Rights to Bear Arms, by Independent Institute Research Fellow Stephen P. Halbrook, has skyrocketed to the following rankings at Amazon.com:

#1: Law
#1: Civil Rights and Liberties
#1: Constitutions
#1: Constitutional Law
#1: Revolutionary and Founding History
#12: History
#11: Professional and Technical
#26: Nonfiction (all)

The book has soared to an overall ranking of #140 at Amazon.com and #105 at Barnes&Noble.com. (With the enormous response, Amazon.com temporarily sold out of the book and is now being restocked.)

By any measure this is a pretty stunning success for a special interest, academically oriented book.  If we keep buying, and encouraging other people to buy, this book could rocket even higher.  I am pleased so far.  I was worried that we Internet warriors have become much better at tearing other people down, than building people up.  This shows that we can do both, which encourages me.

Spread the word far and wide, today is the day of the Second Amendment Book Bomb.  We’re trying to get Steven Halbrook’s new book “The Founders Second Amendment” ahead in the rankings for Amazon, in order to prmote the Second Amendment.  Please, if you don’t have a copy already, I highly recommend getting one.  If you already have a copy, it makes a Christmas Gift.  Click on the link for more information.

I’ve seen a few suggestions around both Volokh and some other places that the first order of business is to challenge the NFA LEO sign off as arbitrary and capricious.  Something to think about: first you really need to get the courts to recognize that an NFA item is an “arm” protected by the Second Amendment.  If you don’t have a right to own something, than the government can get away with a lot more shennanigans than it can if you do.  There might be grounds you could challenge LEO sign off on, but I’m not sure the Second Amendment is one of them, unless you can make a case that the arm in question is within its scope.

I agree with folks that the “common use” language presents a logical problem, but I don’t think it’s an insurmountable one.  There are ways out of the trap, which I’ve talked about before, where if a law is interfering with determining whether an arm is “common” or “unusual and dangerous” one has to look at police use.  I would also add that looking at commonality in countries which don’t have such restrictions on the item in question also needs to be considered.

A District Court rules that it may be a constitutionally protected right.  Go read the circumstances.  It’s truly appalling.