Remember, gentle reader, that if you’re going to lose, lose big. And then be a total dick about it.

I got the bulk of my gloating in by quoting Conan the Barbarian, but I couldn’t let Bloomberg’s and Giffords’s post-gun-control-failure statements just sit there.

Bloomberg, the micro-managing tyrant of NYC, said:

Today’s vote is a damning indictment of the stranglehold that special interests have on Washington. . . . More than 40 U.S. senators would rather turn their backs on the 90 percent of Americans who support comprehensive background checks than buck the increasingly extremist wing of the gun lobby. [emphasis added]

Gabrielle Giffords, who was tragically shot in the head by a lunatic and then granted supreme moral authority by the hard-core anti-gun crowd, said much the same thing:

I watch TV and read the papers like everyone else. We know what we’re going to hear: vague platitudes like “tough vote” and “complicated issue.” I was elected six times to represent southern Arizona, in the State Legislature and then in Congress. I know what a complicated issue is; I know what it feels like to take a tough vote. This was neither. These senators made their decision based on political fear and on cold calculations about the money of special interests like the National Rifle Association, which in the last election cycle spent around $25 million on contributions, lobbying and outside spending. [emphasis added]*

President Obama, of course, was not one to leave the special-interest-bashing to others, as the New York Times noted:

Standing in the Rose Garden next to former Representative Gabrielle Giffords and other victims of gun violence, Mr. Obama flashed anger as he said that the gun rights lobby had “willfully lied” about the legislation, and that Republicans and Democrats had “caved to the pressure.”

Bloomberg, of course, founded and bankrolls Mayors Against Illegal Guns, a notorious anti-gun organization filled with criminal mayors. Giffords similarly started her own super-PAC to push for strict gun control.

I’m not saying that Bloomberg and Giffords aren’t free to spend their money (or in the case of Giffords, donor money) to lobby for policy changes they support. Free speech and the right to petition legislators and the government for the redress of grievances are at the heart of our political system.

That said, it’s disingenuous at best, and damnably hypocritical at worst, to bemoan the grip that other special interests have on Washington merely because they defeated your special interests.

Gun control isn’t about guns. It’s about control. Control of you, gentle reader. I’ll leave you with an excerpt from Rudyard Kipling’s The Gods of the Copybook Headings:

When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said: “Stick to the Devil you know.”

*For a complete list of the various fallacies Giffords employs in her blatant attempt at emotional blackmail, check out James Taranto’s response at the Wall Street Journal.

What is best in life?

To crush your enemies.

See them driven before you.

And hear the lamentations of the women.

Thanks to all who called their congressmen to read them the riot act. Of course, just because gun control was defeated today doesn’t mean that it’s gone forever. The price of freedom is eternal vigilance, etc.

Quote of the Indeterminate Time Interval – Bubblehead Les

Over at Shall Not Be Questioned on the Toomey-Manchin deal:

This bill is like trying to plug the holes in Swiss Cheese by cutting out plugs from the same slice and inserting them into the holes that are already there.

I’ve only read excerpts of the bill so far, but I’m not impressed. I’ll try to read it this weekend and post my thoughts in between preparing for my trial advocacy final and grading legal research assignments for class I’m the TA for.

Intermediate scrutiny is the new rational basis

At least in the Fourth Circuit.

The Fourth Circuit Court of Appeals’ decision reversed the district court’s decision in Woollard v. Sheridan (which had invalidated the Maryland concealed carry statute’s requirement that an applicant show good cause for issuance of a concealed carry license).

The court quoted legislative “findings” supporting the law as written:

(1) the number of violent crimes committed in the State has increased alarmingly in recent years;

(2) a high percentage of violent crimes committed in the State involves the use of handguns;

(3) the result is a substantial increase in the number of deaths and injuries largely traceable to the carrying of handguns in public places by criminals;

(4) current law has not been effective in curbing the more frequent use of handguns in committing crime; and

(5) additional regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of the public.

The court even notes that these findings (adopted in 2002), have not been substantially changed since the Maryland legislature first adopted them in 1972.

Somehow, despite the passage of 30 years from the legislature’s initial adoption to its re-adoption of these findings, the situation in Maryland has not changed (after all, if it had worked, and crime had gone down in response to any laws based on these findings, surely the present findings would differ by at least crediting the current harsh laws for the drop in crime). This is in fact strikingly similar to the Supreme Court’s current case on the Voting Rights Act, in which Congress had adopted the same “findings” today as it did at the VRA’s inception–in 1965.

The Fourth Circuit went on to list several other “findings” (I won’t reproduce them here; if you click through to the Volokh Conspiracy and then to the opinion itself, you can read them on pp. 26-28). This reads like a litany of standard gun control fears–essentially that liberalized carry will take us back to the wild west. It hasn’t (for example, despite similar claims by opponents of Virginia’s bar and restaurant carry bill, crime didn’t increase–it dropped).

Maryland essentially argued that they should be able to deny carry licenses to the vast majority of applicants because of public safety, and the Fourth Circuit went along with it (citing heavily to the Second Circuit’s opinion in Kachalsky, but doing its best to minimize the Seventh Circuit’s opinion in Moore).

Professor Volokh appears to take a dim view of the court’s deference to the legislature’s findings (especially coupled with this standard of review) and notes that “a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.”

I agree.

I would go further, though. The various circuits, in Kachalsky, Peterson, and now in Woollard are focusing too much on Heller and McDonald‘s language regarding the “core” Second Amendment right. The right of armed self-defense may be strongest in the home, but as the Seventh Circuit noted in Moore, that does not mean that it is nonexistent elsewhere. 

I only have one other thing to say about this case–I’m very glad it came out today and not last Thursday, or I would have had to stay up all night reworking certain parts of my law review note so I could turn it in on Friday.

Remember, gentle reader, that under federal law, “firearm” has a very specific definition

A firearm is:

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of Title 18, United States Code); and (8) a destructive device.

Under federal law, all such “firearms” must be registered. From the definition, regular handguns, rifles, and shotguns are not included. Only short-barreled rifles & shotguns, machine guns, silencers, destructive devices, and AOWs are “firearms.” Possession of unregistered firearms is a felony punishable by up to ten years in prison and/or a fine of up to $10,000.

So when you read, gentle reader, that President Obama has pardoned someone for “possession of an unregistered firearm,” it means that the person pardoned had either a short-barreled rifle/shotgun, a machine gun, a silencer, a destructive device, or an AOW that was not registered with the ATF.

Now, it could be that Obama now thinks that heavily restricting the possession of firearms is a bad idea. If so, I agree, and I look forward to any proposal for repealing the NFA the president brings forward. Suppressors are great safety devices, and short barrels make rifles far less unwieldy. I shouldn’t have to pay a $200 tax stamp to the government to possess them, and I certainly shouldn’t be prevented from lending them to friends or family (I’m not even going to address the ridiculous necessity of gun trusts the NFA has foisted on us).

Considering Obama’s continued push for standard capacity magazine bans and a reinstatement of the ban on so-called assault weapons, I doubt that’s the case.

On arbitrary magazine capacity limits

Robert VerBruggen over at NRO highlights a major problem with New York’s new seven-round magazine limit: chiefly that most modern handguns don’t have seven-round magazines.

At all.

One commenter asked whether “high” capacity magazines gave an advantage in a gunfight, but not against unarmed targets, and I responded with this:

Increased magazine capacity confers an advantage when one is limited by magazine quantity. If one wears gear making it feasible to carry a large number of magazines (as the Aurora shooter did), then the capacity of those magazines does not confer so great an advantage.

In other words, if you’re ammunition-limited, magazine capacity doesn’t matter. If you’re magazine-limited, magazine capacity does matter. Mass shooters have generally been the former, and the law abiding the latter.

I don’t carry because I want to shoot someone, just like I don’t have a first aid kit in my car because I want to practice emergency medicine.

I carry (when I can) because should I need immediate protection, the government has no obligation to provide it.

Quote of the Indeterminate Time Interval – Wikipedia

Apropos of David Gregory’s violation of Washington, D.C.’s  strict liability standard capacity magazine ban, and the D.C. attorney general’s decision to forego prosecution:

Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of power, because it violates rule of law, allowing men to apply justice only when they choose. Aside from this being inherently unjust, it almost inevitably must lead to favoritism and extortion, with those empowered to choose being able to help their friends, take bribes, and threaten those from they desire favors.

Of course, if you’re not David Gregory, and don’t have David Gregory’s connections, the D.C. attorney general is not nearly so understanding.

image via Patriot Outfitters

Tens–likely hundreds–of millions of such magazines are lawfully possessed in the United States by law-abiding gun owners. More than 1 million PMAGs are backordered from Magpul. Brownells sold through three-and-a-half years worth of magazines in three days.

Magazines like the one Gregory displayed on Meet the Press, and Magpul’s PMAG, are not complicated; they are made up of a box and a spring. Given the sheer number of standard capacity magazines in the United States, and the infrequency of mass shootings (they are not becoming more common, and your chances of being killed in a mass shooting are about the same as your chances of being struck by lightning), these magazines, as well as the AR-15 rifle (and all semi-automatic weapons) are in common use for lawful purposes.

If in common use is to mean anything at all, it must cover the AR-15–America’s most popular rifle–and standard capacity magazines.

 

Those proposing bans on semiautomatic firearms* want to take us back to the ’80s

The 1880s.

Those of you who are good at math will note that that is closer to the 1791 ratification of the Second Amendment than to today (~90 years vs. ~130 years). Certainly far closer to the framing than TV, or the internet, but about on par with radio.

Proposing that somehow the arms protected by the Second Amendment are only those in existence at its framing and ratification is the first step down a dangerous road. If that logic applies to the Second Amendment, there’s no reason it couldn’t apply to any of the others.

Twitter? Facebook? The entire internet? TV? Movies? Video games?

Not protected under the First Amendment because at its framing and ratification you had to own a printing press and print pamphlets or stand on a soapbox and shout at passers-by to be heard.

Email? Cars? Your computer? Cloud storage?

All searchable without a warrant, probable cause, or even reasonableness, because the framers did not have any of that technology.

If you don’t like the Second Amendment, you’re welcome to try to repeal it, but consider: Would repealing the First Amendment mean that we no longer have the freedom of speech, or the press, or religion? Rights are not conferred by the government–they are, in the words of the Framers, unalienable.

Self-defense is a human right, and the best, effective means of self-defense is a firearm. A firearm puts the weak, the infirm, and the small on equal footing with their attacker.

To abrogate that right in the face of media-driven hysteria would be wrong, particularly when that hysteria is based on several false assumptions: (1) Mass shootings are not becoming more common, (2) An assault weapons ban would not have stopped the CT shooter, (3) Anything that would have prevented the CT shooting would have serious constitutional problems, and (4) America has already had a conversation about guns, and the gun control side lost.

I understand the drive to do something, but gun control proponents are focused more on doing anything, whether it would work or not, and whether it would be constitutional or not.

*Including, among others, the NY Post, which somehow fails to note (probably because of the pearl-clutching) that the AR-15 was invented in the late 1950s. The NYT notes that the AR-15 is the most popular rifle in America (and yet disingenuously posts a picture of a rifle that would be illegal under CT law, instead of one that was legal, like the shooter actually used). In Heller, the Supreme Court held that the Second Amendment protects arms in “common use.” (554 U.S. at 627) The most popular rifle in America surely falls under this “common use” umbrella.

I’m of mixed feelings about the 7th Cir.’s holding in Moore v. Madigan

One the one hand, anti-gun wailing and gnashing of teeth is like music to my ears (the decision is here). Though gun control’s not quite dead, it’s definitely on life support.

On the other hand, this has thrown a wrench into a certain project I’ve left undescribed (see fn 1). Between this case, the 2d Cir.’s holding in Kachalsky, and whatever the 9th Cir. holds in Richards v. Prieto (assuming it’s decided next semester-ish), I’m going to have to rework substantial sections.

On the gripping hand, my project not only turned out to be timely, but by the time it’s done, it may even be on a circuit split!

And with that said, those astute readers of mine will likely have deduced the general subject of my law review article.

Now, back to studying. One more exam to go, and then this semester will be officially over.

[Ir]Rational Basis

Via Sebastian and Prof. Volokh, we learn that the Fifth Circuit held in NRA v. BATF that the federal statute forbidding FFL sales of handguns to 18-20 year olds is constitutional.*0

I’m not going to delve into the analysis here,*1 but the Court eventually decides that,

In harmony with well-developed principles that have guided our interpretation of the First Amendment, we believe that a law impinging upon the Second Amendment right must be reviewed under a properly tuned level of scrutiny—i.e., a level that is proportionate to the severity of the burden that the law imposes on the right.*2

The Court applies intermediate scrutiny, and ultimately holds that the prohibition on FFL sales of handguns to 18-20 year olds is constitutional (there is a “reasonable fit between the law and an important government objective”*3). Congress determined that the purchase of handguns by minors*4 is a safety problem (in that it exacerbates their impulsive, violent tendencies, or something), and that prohibiting such purposes is the best way to address that problem is to prevent FFLs from selling handguns to minors.*5 The Court lays out this determination and Congress’s narrow response to it succinctly:

Overall, the government has marshaled evidence showing that Congress was focused on a particular problem: young persons under 21, who are immature and prone to violence, easily accessing handguns, which facilitate violent crime, primarily by way of FFLs. Accordingly, Congress restricted the ability of young persons under 21 to purchase handguns from FFLs. [emphasis in original]*6

The Court defers to Congress’s determination, and upholds 18 U.S.C. § 922 (b)(1)’s prohibition on FFL sales of handguns to those under 21. The government interest is sufficiently narrow, and the means are reasonably adapted to that interest, so intermediate scrutiny is no bar.

The Court then looks at the NRA’s claim as an equal protection matter, and that claim fails under rational basis review (because, unlike race or sex, age is not a suspect classification*7).*8

However, possession/ownership of handguns by those aged 18-20 is (in most states, and under federal law) not illegal. Congress only prohibited (and only intended to prohibit) those persons from buying their handguns through FFLs. If you’re 18 and you receive a handgun as a gift, you’re fine.*9 If you’re 19 and you buy a handgun from a private person, you’re still fine.*10

Hell, you can even tell someone 21 or older to buy the handgun and then pay them for it!*11

Well, two out of three ain’t bad, I guess.*12

So it’s legal for 18-20 year olds to possess handguns, but it’s illegal for them to actually try to buy them from an FFL, or to get someone else to buy them from an FFL.

If you’re 18-20, I hope you know someone who’s generous or looking to sell a handgun they already have – if not, there’s not really any other way for you to legally acquire one.*13

Ladies and Gentlemen, I give you “irrational basis.”*14

*0 Just for the record, I’m still a law student. None of this is legal advice. If you take any of this as legal advice, then on your own head be it.

*1 For reasons I am not currently willing to go into, but will eventually explain. In mid-March/April of 2013, I think.

*2 N.R.A. v. B.A.T.F., No. 11-10959, slip op. at 18 (5th Cir. 2012).

*3 Id. at 33.

*4 The Court in N.R.A. looks at age of majority throughout common law history and determines that it has traditionally and historically began at 21.

*5 And lo, the 1968 GCA and its prohibition on FFL handgun sales to minors heralded the end of youthful violence, and an era of peace and goodwill towards all descended upon the land. Truly, we live in an enlightened age.

*6 Id. at 35.

*7 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000).

*8 N.R.A. at 40.

*9  So long as you’re not a prohibited person and it’s legal in your jurisdiction, of course.

*10 Same disclaimer as before, but with an added disclaimer about the legality of private sales in your jurisdiction.

*11 DO NOT DO THIS. This is a felony straw purchase, and both you (the actual buyer) and the person you get to buy it for you (the straw buyer) will be awarded an all-expenses paid trip to federal prison. Again, DO NOT DO THIS.

*12 Now, aren’t you glad I didn’t link to a Meat Loaf song?

*13 It’s like if  18-20 year olds could possess/drink booze, but were prohibited from buying it or getting others to buy it for them. Sure, it’s technically legal, but it’s a major PITA to actually do what you’re legally entitled to do.

*14 It’s the Chewbacca defense of standards of scrutiny!