Category: 2nd Amendment

It looks like the lawsuit by NRA and SAF against the City of San Francisco may fall flat on its face due to failure to tie a City Ordinance banning guns from public property to the lease agreement promulgated by the housing authority, which is apparently a federal entity.

Ordinarily, you win some and you lose some, which is why you proceed on multiple fronts, but this is a big enough screw up that the City of San Francisco might be able to seek to have their legal costs recovered. These are not mistakes we can afford to make in the immediate post-Heller legal climate.  Hopefully this isn’t as bad as these articles seem to make it out to be.  Don Kates is one of the lead attorneys on this case, and he’s experienced at these kinds of suits, so it’s kind of hard to believe he’d make a mistake like this.

Hat tip to War on Guns

UPDATE: In the comments Chuck Michel says: “I assure you there is no screw up here“  That’s good to hear.

Team up to slash and burn the Heller ruling, that is.

Dave Hardy points to some upcoming law reviews on the Heller case, and says:

The 2A is becoming the one interesting field of con law. The First Amendment has been mined for, what, forty years or so. Debates over what is obscenity, what are fighting words, and whatnot are really getting to be a bit boring. But the 2A can keep scholars busy for another few decades. And the courts, as well.

It’s certainly going to keep bloggers busy too.

Looks like Wayne Fincher appealed his case based on Heller, and lost, based on the reasoning that machine guns, which are banned, aren’t in common use, which makes their being banned constitutional.

Lots of back and forth in the comments about the absurdity of the ruling.  I agree with folks that the “common use” test proffered by Heller is insufficient, but I think a way around it, without having to blatantly overrule it, is to suggest that one must look at police use, when determining whether an arm in question is protected.  If an arm in question is of a type that is part of the ordinary equipment of police work, it must necessarily be protected by the second amendment.  Of course, this doesn’t necessarily get you machine guns, as I’m not certain whether machine guns are common police equipment.  But it does get you out of the trap where the government could prohibit or frustrate commerce in new arms technology before it becomes “common” and then not worry.  If it’s a useful instrument for self-defense, police departments will probably pick it up, and it will become common.  Note that I don’t think you have to show that every patrol car has one, just that it’s not unusual, or unheard of.

Orin Kerr points out a video by Justice Kennedy that mentions the Heller decision as a great teaching decision (38 minutes in).  Professor Kerr opines:

In particular, Justice Kennedy appears to suggest around the 40-minute mark that he will take a living constitutionalist approach to the Second Amendment that may point to more gun rights under the Second Amendment than an originalist approach would provide.

I believe I read a few weeks ago that Alan Gura was not quite so worried about Justice Kennedy as he was about others.  This would indicate that was good judgement.  I wouldn’t bet the farm on it, but it would seem that Justice Kennedy might not be the vote we have to be concerned might waver.

If the federal courts are going to keep casually dismissing any serious analysis that would seem to be required by Heller, my initial optimisms that this case will be anything more than a limited, obscure ruling a la Lopez, is beginning to wane.

UPDATE: On the bright side, at least they do seem to be deciding that strict liability for Felon-in-Posession might be unconstitutional.  That’s good news.

I wanted to clear the air in regards to some things that have come up lately.  For one, I am not rejecting one of the key purposes of the second amendment, which is to act as a final check on governmental power, and ultimately make it possible for the people to withdraw their consent to be governed.  Nor am I suggesting that this become a taboo topic, to be locked up in the attic like a crazy aunt, never to be talked about or acknowledged.

Michael Bane, in the comments brought up the eloquent dissent from Judge Alex Kozinski in Silveria:

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.

Let us contrast that with what I critisized:

There are some of us “cold dead hands” types, perhaps 3 percent of gun owners, who would kill anyone who tried to further restrict our God-given liberty. Don’t extrapolate from your own cowardice and assume that just because you would do anything the government told you to do that we would.

Maybe I’m more sensitive about how you say things than most, but there’s a big difference between talking to the public about why the second amendment is important, and saying if you get a political result you don’t like, you’re going to start shooting, without first exhausting the political and legal processes as a means of redressing your grievance.  Kozinski speaks of the second amendment as a doomsday provision, which it is.  I think the public can understand and accept it in that light.

I think the nut of the argument here, between myself, and the people who agree with me, and Mike V. and the people who agree with him, is that I don’t think we’re close to needing to use that doomsday provision, and I suspect many of them think we are.

Professor Volokh has a case in the 9th Circuit:

The Supreme Court’s recent decision in District of Columbia v. Heller, holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms….

Sorry to disappoint those who were hoping for the federal courts to embrace the right to own a machine gun.