2nd Amendment – Page 8 – Shall Not Be Questioned

Knife Rights a New Front in the Second Amendment

Andrew Branca notes that Freddy Grey’s knife was, in fact, illegal. We need to repeal all knife laws. Laws against sharp pointy things are even more ridiculous than gun control. Even Bloomberg News is recognizing that Knife Rights have become the new gun rights. Of course, I wouldn’t agree gun rights have gotten old, but the Second Amendment isn’t just about firearms, it should be about all personal weapons, armor, and other accouterments.

Against my better judgement, I became involved in a comment discussion on this article that appeared in Raw, accusing the NRA of not caring about the rights of African-Americans, because they weren’t standing up for the Second Amendment rights of Freddy Grey. I viewed my goal in this to dispel myths, rather than sling insults back at people. I do not speak for NRA, but in my opinion, when defending the organization online, I don’t think there’s anything wrong with using “we” if you’re a member. It is, at the end of the day, your organization, and it helps people understand this isn’t just about some nefarious gun lobby:

Myth Number 1: NRA doesn’t care about the rights of someone like Freddy Grey.Â For one, even though NRA is not directly involved in knife rights, KnifeRights.org is a lot of the same people, and there’s cooperation. We are working to try to repeal and preempt the kinds of laws that got Freddy Grey into the situation that got him killed.

Myth Number 2: NRA doesn’t care about the rights of blacks. Gun rights is only for white people.Â No, we stand for the right of all peaceable people to keep and bear arms for self-protection. Gun control is actually far more burdensome for poor blacks to exercise their rights than it is for white people who can more often afford license fees, training classes, and to live in communities they aren’t likely to get harassed by the cops.

Myth Number 3: NRA is just the sales arm of the gun industry.Â It’s amazing how many people have a genuine and sincere belief that this is actually true. I believe it’s a deliberate self-deception at times, because if you’re for restricting the freedoms of millions of Americans, some of whom might be a lot like you, that kind of makes you a real killjoy. But if you’re fighting against some nefarious imagined “gun industry,” well, that’s just sticking it to the corporate man, and you one can think oneself a hero of the common man.

These were the common myths. Of course you had plenty of crap like this:

Niger [Innis]? he’s another self hating black man, who hates his race. Tell me about Wayne LaPiere’s lack of racism. Tell me about Pedophile Nugent’s lack of racism. When the NRA leaders stop making speeches about rebelling against the government, and attacking blacks and Mexicans, I’ll believe there;s no racism in the NRA. until then, the NRA is nothing but an organization dedicated to scaring ignorant white people into buying guns, out of fear of a black president and brown and black people.

He’s not speaking about the actual National Rifle Association, but instead a caricature of the organizationÂ constructed partly by the writer’s vivid imagination, partly by agitators who work very hard to divide Americans against one another, and partly by Ted Nugent, who is the former type’s wet dream, since he self-caricatures.

As an organization, NRA needs a lot more people like Sheriff Clark speaking for the organization, and a lot fewer people like Ted Nugent. Knife Rights, for its part, responded very well, I thought, to the current events happening in Baltimore.

Cody Wilson Sues State Department

Two years ago, Defense Distributed was preempted by the state Department from postingÂ plans for the Liberator Pistol online, arguing they were a controlled munition. Many of us in the tech business got a strong case of deja vu, remembering a similar government assertion in the 1990s that didn’t end up going all that well for the government.

In that grand tradition, Cody Wilson of Defense distributed has filed suit against the State Department, arguing First Amendment grounds. Lest anyone think this is some kind of fringe suit, it has the backing of SAF, and Alan Gura is among the attorneys on the case.

The New York Times describes this as “trailblazing,” but really this is just a continuation of the argument that happened over encryption in the 1990s. I predict this will not go well for the government. It shouldn’t go well for the government.

Civil Rights Defeat in the 7th Circuit

The 7th Circuit Court of Appeals has been more pro-gun than most federal circuits, but asking it to strike down an assault weapons ban was apparently a bridge too far. Easterbrook’s opinion essentially says because assault weapons are relatively recent technology, they can be circumscribed:

But instead of trying to decide what â€œlevelâ€ of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification orÂ those that have â€œsome reasonable relationship to the preservation or efficiency of a well regulated militia,â€ see Heller, 554 U.S. at 622â€“25; Miller, 307 U.S. at 178â€“79, and whether lawâ€abiding citizens retain adequate means of selfâ€defense.

Really? Would Easterbrook be OK with importing this kind of reasoning into First Amendment jurisprudence? The Founders could not have possibly envisioned the Internet, so should it be afforded no protection whatsoever? Can states experiment with publication bans? The Food Babe spreads lies and dangerous information, can we just take her offline?

Easterbrook argues that the banned weapons may be useful for self-defense, but there are plenty of substitutes that citizens can use. DC unsuccessfully made the same arguing to try to save it’s handgun ban. How is this not ignoring Heller? This is probably the most jaw dropping part of the opinion for me. Easterbrook argues that while it might be true that these laws are largely useless, if it makes people feel safe, that’s a compelling enough reason to justify government restriction. Again, do we feel OK importing this reasoning into other contexts? If an officer feels like there’s some pot plants in that house, is that ground for breaking down the door? Do we need to suppress free speech because it makes some precious snowflakes in college “feel unsafe” these days?

Judge Manion wrote a dissenting opinion, essentially arguing that the majority was gutting the Second Amendment, and ignoring Heller. A favorite line of mine:

Here, the court comes not to bury Miller but to exhume it. To that end, it surveys the landscape of firearm regulations as if Miller were still the controlling authority and Heller were a mere gloss on it. The courtâ€™s reading culminates in a novel test: whether the weapons in question were â€œcommon at the time of ratificationâ€ or have â€œsome reasonable relationship to the preservation or efficiency of a well regulated militia,â€ and â€œwhether law-abiding citizens retain adequate means of self- defense.â€ Ante at 7â€“8.

The problem is Heller expressly disclaimed two of the three aspects of this test; and it did so not as a matter of simple housekeeping, but as an immediate consequence of its central holding. It held as â€œbordering on the frivolousâ€ arguments thatÂ recognized a right to bear only those arms in existence at the time of ratification. Heller, 554 U.S. at 582 (â€œSome have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.â€). Likewise, it expressly overruled any reading of the Second Amendment that conditioned the rights to keep and bear arms on oneâ€™s association with a militia. Id. at 612. (â€œIt is not possible to read this as discussing anything other than an individual right unconnected to militia service.â€). For this reason, there is no way to square this courtâ€™s holding with the clear precedents of Heller and McDonald.

I certainly hope this case gets appealed. The majority opinion seems exceptionally weak here, even compared to some of the “intermediate scrutiny two-step” opinion I’ve read.

Amish Farmers in New York Denied Gun Rights by SAFE Act

Apparently the SAFE Act is having an unintended consequence for Amish farmers. The Amish maintain a religious objection to being photographed. Before the SAFE Act, private transfers of rifles used to be legal in New York, so the Amish still had means to get a firearm without photo-id. Since SAFE outlawed private transfers, there’s now no way for an Amish person to get around the photo-id issue. New York State has required photo-id for pistol licenses for some time.Â The Shooter’s Committee on Political Education (SCOPE) is meeting with the farmers to presumably discuss a lawsuit.

The Brady Act essentially requires photo-id to purchase a firearm, and ATF has been pretty clear on the matter:

ATF has been asked whether firearms purchasers may be exempted from the requirement for an identification document with a photograph based on religious objections. The Brady law does not provide for such an exemption. All over-the- counter transfers are subject to the photo identification requirement.

The Brady Act may not provide any exception, but the RFRA certainly does. I would think a plaintiff would easily prevail in a suit against ATF for failing to make a reasonable accommodation under the RFRA.

The SAFE act is another matter, however, being a function of state law. The federal RFRA was ruled not to apply to the states under the 14th Amendment, and unlike most other states, New York has never passed a state analogue. I am not aware of whether or not New York provides religious protection through its courts that is greater than the federal courts provide, but it looks like as of at least 1999 they had not. There has, however, already been a case in theÂ New York courts involving this very subject, from that same article linked previously:

In an interesting application of the state constitution’s free exercise clause, the court in In re Miller recently authorized a religious exemption to a requirement that an applicant for a pistol permit must submit a photograph. An Amish man refused to allow himself to be photographed for the permit on the ground that being photographed was against his religion. In lieu of a photograph, he offered to allow himself to be fingerprinted. The court balanced “the importance of the right asserted” against the governmental “needs and objectives being promoted” and concluded that the defendant’s right to free exercise justified an exemption from the photograph requirement. Although the court did not explicitly spell out a compelling interest test, it did note that “the Assistant Attorney General has argued very ably and cogently that the State’s interests in requiring a photograph are ‘compelling,’ extending beyond mere administrative convenience.” Nevertheless, the court decided that the applicant’s free exercise interest outweighed these compelling state interests because a less restrictive means of identification was available.

This would help them if they pursue relief in state court, but it would seem to me that if it is the federal photo-id requirement that is at issue here, the federal RFRA would be the easiest way to force an accommodation here. If the photo-id requirement is a function of the SAFE act directly, and not just an indirect consequence of banning private transfers, it’s good to see there’s existing cases in the New York Court system that make an accommodation for people’s religious practices and beliefs.

SCOPE may want to consider engaging the ACLU, who has shown a willingness to get involved in these kinds of suits that involve Second Amendment rights, but also touch on some of their traditional areas of litigation, like this case. Their presence on the case may play well with old-school liberal judges (who date back to when liberals cared about civil liberties), and they are experienced at fighting cases like this.

A Pardon Well Deserved

Chris Christie is clearly trying to boost his pro-gun credibility in whatever way he can given the extremely anti-gun legislature he deals with since he signed a full pardon of Shaneen Allen today.

This is wonderful news for Allen, and it will hopefully send a message to New Jersey’s police officers and prosecutors. New Jersey isn’t exactly going pro-gun, but maybe there will be a little more sanity in the enforcement of the laws.

Peruta Goes En Banc

According to legal sources, it seems the Ninth Circuit has issued an order for an en banc hearing in Peruta. It might be the bit of pessimist in me, but I doubt this is good news for gun owners in the Ninth Circuit.

National Firearms Law Seminar

If you’re an attorney or just interested in firearms laws, then you shouldn’t miss the National Firearms Law Seminar at the NRA annual meeting.

I have to say that this year’s program really stands out for the combination of nationally known speakers, as well as the practical topics covered a bit more in-depth by some of the lawyers working on Second Amendment issues you may not have heard about yet.

For one, the lunch speaker is Glenn Reynolds of Instapundit fame. Having heard him speak before, I can say that he always delivers a really good presentation that informative as well as entertaining. The program notes that his lunch speech will look at “the transformation of the Second Amendment from an ’embarrassing’ outlier to the Bill of Rights, to a provision that, like other parts of the Bill of Rights, protects identifiable individual rights in court.” Massad Ayoob will be giving a presentation on armed self-defense, highlighting mistakes “by the shooter at the scene, and by defense counsel in court.” That should be quite interesting, even for the non-attorney.

In my opinion one of the most interesting topics looks like it could end up being the session on the Brady Campaign’s recent litigation strategy against individual FFLs. The description of this talk by Cord Byrd notes that they have been “utilizing state laws including negligent entrustment, negligence per se and public nuisance to circumvent the protections afforded by the Protection of Lawful Commerce in Arms Act.” Then you have the always wonderful Sarah Gervase who packs so much practical information for attorneys into her topics each year talking about civil rights actions in firearms cases for this year’s Nashville seminar.

Registration is online, and there are discounts for various folks – law students, those who only want to attend the lunch speech by Glenn Reynolds, just a half day, and even for non-attorneys. There’s pretty much no way that you won’t walk out of the sessions learning something new if you choose to attend.

Even as someone who isn’t a practicing attorney and who doesn’t do the legal analysis for the blog, there’s usually something I pick up that gives me so much more context and understanding about the cases we hear about during the next year. More importantly, as I’ve met many people who maybe had a little minor offense, often nothing related to firearms at all, when they were 18 who are still paying a penalty with their firearms rights when they are 68 over the years, I’ve realized how invaluable it is that defense attorneys should know at least something about this area of law and how it impacts their clients.

Magazine Ban Upheld in 9th Circuit

I’m a little late on this news, because I had originally wanted to read the opinion, but I did not end up finding the time.Â The magazine restrictions by Sunnyvale, California were upheld in the 9th circuit last week. All these stories are basically the same: a lot of judges hate the Heller decision, because they don’t particularly like the Second Amendment, so they will use any reasoning they can to gut it.

While this case will no doubt be appealed, I’m not certain if I feel comfortable taking a magazine case to the Supreme Court, for fear it’ll lose. I’d rather get more case law first, and at least get lower courts out of the mindset of open resistance to the will of the Supreme Court on the Second Amendment.

Another Anti-Second Amendment Court Ruling.

The Supreme Judicial Court of Massachusetts rules that a stun gun is a “dangerous and unusual” weapons, and thus not protected by the Second Amendment, so banning them is fine. No need for a Second Amendment analysis, as there is just no right at issue here.

We acknowledge that stun guns may haveÂ value for purposes of self-defense, but because they are notÂ protected by the Second Amendment and because a rational basisÂ exists for their prohibition, the lawfulness of their possession and use is a matter for the Legislature.

How long is the Supreme Court going to let lower courts thumb their noses at them? The next level of appeal for this is the Supreme Court of the United States. Maybe it might be worth trying a non-firearm case. Also, note, the Court here only recognized there was a Second Amendment right to a gun in the home. That’s it. It’s like they never even bothered to read the rest of the decision, which recognized the right as not being one limited to the home.

Two More Favorable Court Rulings

Looks like we’ve had a few more favorable court rulings in the past few days. The first comes from the Middle District of Pennsylvania, in the case of Suarez v. Holder, holding that a past non-violent felony conviction was not sufficient to strip him of his right to keep and bear arms.Â This is an “as applied” challenge, meaning it did not challenge the felon-in-possession statute (18 USC 922(g)) on its face, but challenged it as applied to the plaintiff in this case. He was convicted in 1990 of carrying a firearm without a license in Maryland, a misdemeanor in Maryland, but one that can carry a penalty of up to three years in prison (and thus prohibiting under federal law). The more cases like this we get, the more cause we have to seek further redress through Congress, since these suits cost the federal courts time and money (both of which are in short supply). You can read more about the case here. Hat tip to Joe HuffmanÂ for the tipoff.

The other case is from the Florida Court of Appeal, Norman v. State. This court upheld the Florida restriction on open carry, but it’s a win because they adopted the reasoning that we’ve been pushing the courts toward. The court recognized there was a right to carry a firearm outside the home, but that the state may regulate the manner in which firearms are carried.

The Legislature â€œhas a right to prescribe a particular manner of carry, provided that it does not â€˜cut[] off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render[] the right itself useless.â€™â€ The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.

The reason our legal advocates have been pushing for this interpretation is because it squares with a long, unfortunateÂ tradition in some parts of the country of making concealed carry unlawful, while allowing open carry, and courts upholding them under the Second Amendment and state Second Amendment analogues. This ruling does beg the question of whether, say, New Jersey, for instance, could get around being forced to comply with federal law by legalizing open carry, but still requiring a relatively non-obtainable license for concealed carry. That doesn’t do anything to destroy the right de jure, but given that open carry is not socially acceptable in the Garden State, does it amount to a de facto destruction of the right? That’s probably why anti-evasion doctrine is going to become very important going forward.