Category: 2nd Amendment

And it’s a gun related case. You can see the transcript here.

JUSTICE THOMAS: Ms. Eisenstein, one question.

Can you give me ­­ — this is a misdemeanor violation. It suspends a constitutional right. Can you  give me another area where a misdemeanor violation suspends a constitutional right?

 

MS. EISENSTEIN: Your Honor, I ­­ I’m thinking about that, but I think that the — the question is not — as I understand Your Honor’s question, the culpability necessarily of the act or in terms of the offense.

JUSTICE THOMAS: Well, I’m — I’m looking at the ­­ you’re saying that recklessness is sufficient to trigger a violation — misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right.

Emphasis mine. If you’re in a Super Tuesday state, please consider the future of the Second Amendment is riding on this election. I don’t care whether you pick Cruz or Rubio, but please God, we can’t have a nominee that doesn’t even understand how the courts work picking Scalia’s and probably three other replacements. Anybody but Trump!

Maryland (or Murrlnd, as it is known around here) has decided to appeal Kolbe v. Maryland to the entire panel of 4th Circuit judges. As NRA’s Annual Firearms Law Seminar notes, the 4th is pretty stingy with En Banc review, and this case did not overturn the ban, merely vacated the lower court ruling and sent it back for rehearing. So there’s a good possibility the 4th will deny the appeal. Let us hope. We need this case to delay, delay, delay, as long as we can delay it. We need to buy time to hope for favorable changes on The Court.

Finally, judges who are willing to take Heller and McDonald seriously, and offer us serious Second Amendment protections. In short, the lower court had ruled Maryland Assault Weapons Ban was constitutional, having applied intermediate scrutiny. The three-judge panel of the Fourth Circuit Court of Appeals has now vacated that ruling and ordered the lower court to apply strict scrutiny. Note at least one well-known blog is reporting this ruling struck down the ban, but it does no such thing. It merely vacates the lower court ruling and demands the lower court reconsider with the highest standard of review. Though, it is clear from the Court’s language that they do not look favorably on the ban. Here’s a passage talking about “Large Capacity Magazines.”:

Likewise, the record in this case shows unequivocally that LCMs are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States. In fact, these magazines are so common that they are standard.

Finally! A court willing to not only find that they are in common use, but one willing to admit that carries with it serious Second Amendment considerations! Granted, this could still be overturned en-banc, and appealed to the Supreme Court, but if this holds, it will be the end of Maryland’s assault weapons ban. It will be the first instance of an assault weapons ban thrown out by the courts.

Contrary to the district court’s conclusion, the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden.

That’s a refutation of the substitution argument that Eugene Volokh is all too fond of. Quite a step for the federal courts to take. This is not a finding of unconstitutionality, it should be noted. They have only directed the lower court to apply the correct standard of scrutiny.

Because the district court did not evaluate the challenged provisions of the FSA under the proper standard of strict scrutiny, and the State did not develop the evidence or arguments required to support the FSA under the proper standard, we vacate the district court’s order as to Plaintiffs’ Second Amendment challenge and remand for the court to apply strict scrutiny in the first instance. This is not a finding that Maryland’s law is unconstitutional. It is simply a ruling that the test of its constitutionality is different from that used by the district court. The State should be afforded the opportunity to develop its case in light of this more demanding standard, and Plaintiffs should be permitted to do so as well.

This is still very good. Strict scrutiny is a high level of review. One disappointing thing in the ruling is that they rejected the equal protection argument in regards to exempting retired law enforcement from the ban:

For all these reasons, we affirm the district court’s decision on the equal-protection issue. Retired police officers and the public are not similarly situated, and dissimilar treatment of these dissimilar groups does not violate the Equal Protection Clause.

There’s that conservative love of law-and-order again. Police can super-citizens. Like you and me, only better. Still, this is a pretty significant win. Let’s hope by the time this bubbles back down and then back up we might have a friendlier Supreme Court.

John Richardson has the story. The fortunate part is that it’s on procedural grounds and not on the merits of the case. Essentially the Court of Appeals argues that Judge Scullin should never have been assigned a case like this, since he was sitting on the DC Court from another district. It’s not uncommon for “retired” federal judges to serve when they are needed. Even Justice O’Conner has been hearing cases in the 9th Circuit since retiring from the Supreme Court. In this case, the Court has decided that Wrenn must start over.

This is unfortunate, but to be honest, we should want the wheels of justice to turn slowly, on the hope that if we have a favorable outcome in 2016, we can get changes on the courts that will help us secure a more robust Second Amendment we clearly will never get from this Supreme Court.

We’ve been waiting with bated breath as the Supreme Court kept holding over the case of Friedman v. Highland Park. Will they take cert? Are they still arguing? Are they waiting for a dissent to denial to be finished?

We now have our answer. Cert is denied: the Supreme Court will not hear the case. That leaves the ban to stand. However, Justice Thomas penned a powerful dissent, which was joined by Justice Scalia. Scroll down to the very end to read the dissent:

This is not really much of a surprise, as the Second Circuit has been in open defiance of Heller and McDonald since the Court handed down those decisions. The Second Circuit sustained the unconstitutionality of the seven round load limit, made by the lower court, but also invalidated the ban on the pump-action Remington 7615.

You can read the whole opinion here. They followed the same reasoning as the Heller II court, arguing that they are indeed in common use, and typically possessed for lawful purposes. But they put all that aside and said they could be banned anyway. The reasoning is even worse than in Heller II.

Heightened scrutiny need not, however, “be akin to strict  scrutiny when a law burdens the Second Amendment” — particularly when that burden does not constrain the Amendment’s “core” area of protection. The instant bans are dissimilar from D.C.’s unconstitutional prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose” of self‐defense.94 New York and Connecticut have not banned an entire class of arms. Indeed, plaintiffs themselves acknowledge that there is no class of firearms known as “semiautomatic assault weapons”—a descriptor they call purely political in nature.95 Plaintiffs nonetheless argue that the legislation does prohibit “firearms of a universally recognized type—semiautomatic.” Not so. Rather, both New York and Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more enumerated military‐style features.

In other words, it bans an entire class of arms, but we’ll just use some trickery and tell you how it really doesn’t. After that it’s your basic Intermediate Scrutiny two-step. One wonders why the Court of Appeals even bothered with the first part of the analysis.

Again, the lower courts are in open revolt against Heller and McDonald, and I do not think the Supreme Court has any stomach to put the revolt down. If we can win the White House in 2016, we need to call on Congress to save the states which treat the Second Amendment as if it were toilet paper.

Bob Owens’s money is on “no.” I also think that is the safe bet. Trying to divine the purpose and meaning behind the Supreme Court’s moves is really not much more rigorous than tea leaf reading. But as I’ve said before, I don’t think Scalia and Thomas’s dissent in denying cert in Jackson was a good omen. Ian seems to have agreed with that assessment. I haven’t seen anything that changes my mind. The Jackson case would have just been reinforcing Heller. It would not have required the Court to do much in the way of blazing new trails in Second Amendment law. I took Scalia and Thomas’s dissent as desperate frustration that the Court was not only unwilling to take additional cases to further define the contours of the right, but was also unwilling to even defend Heller from the predations of the lower courts.

It’s quite possible that one of the Heller justices in the majority voted with the majority because he wasn’t willing to nullify the Second Amendment, but beyond that has little desire to see a lot of state and local gun laws overturned. This would fit the judicial minimalism philosophy of Justice Roberts. I’ve been amused by a lot of folks suggesting that Roberts is going liberal. I don’t think this is the case. Judicial minimalism or judicial restraint have generally been regarded as conservative philosophies rather than liberal ones. Also consider the President who appointed Roberts mostly had an interest in ensuring his “Global War on Terror” initiatives were upheld by the Court. Minimalism has been a good way for politicians who seek power to fool a lot of people into allowing them power under the banner of “conservatism,” with courts willing to strike down unconstitutional excesses being labeled “activist.” The American people have been played, but hopefully have started to catch on. We have to demand the next President appoint justices who are ready and willing to strike down unconstitutional laws, and enforce appropriate limits on governmental power.