Posts tagged ‘RKBA’

03/21/2013

Intermediate scrutiny is the new rational basis

by wfgodbold

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 KachalskyPeterson, 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.

12/18/2012

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

by wfgodbold

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.

12/13/2012

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

by wfgodbold

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.

10/25/2012

[Ir]Rational Basis

by wfgodbold

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!

08/07/2012

Why should I do any soul-searching?

by wfgodbold

I didn’t kill anyone.

I didn’t suggest that someone else kill someone.

Yes, the shooting at the Sikh temple in Wisconsin was a tragedy. But it was no less a tragedy than the recent mass stabbing in China (which, you will notice, was more deadly: 8 killed and 5 wounded in China, as opposed to 6 killed and 4 wounded in Wisconsin).

President Obama said that we must “do some soul searching to examine additional ways that we can reduce violence.”

I will commend him for not actually saying “gun violence;”* being shot kills you just as dead as being stabbed, bludgeoned, or poisoned. However, I can’t actually reduce violence myself; I’m not violent.

“But,” you say, “don’t you carry a weapon?”

Yes, but I don’t carry it to be violent.

I carry to prevent violence.

The police aren’t there to protect me. They’re not there to protect you.

The police are there to clean up after the fact, investigate, and deter criminal behavior.

Not to protect anyone else.

Since I can’t afford bodyguards (like Michael Bloomberg or Richard Daley), I choose to take responsibility for my own safety.

*Unlike the nanny of the decade, Michael Bloomberg. Given his track record with other amendments, it’s not surprising he still hates the second. DC v. Heller is still good law; handguns and semi-auto weapons are protected because they’re in common use.**

**This standard seems to be begging the question. Automatic weapons aren’t in common use because they’ve been heavily regulated since the 1934 NFA, and de facto banned since 1986***. According to the court’s logic in Heller, this ban is fine because automatic weapons aren’t in common use, but they’re not in common use because they’re banned.

***They’re not actually banned de jure; if you pay for the tax stamp, you can buy a machine gun that was manufactured before 1986; however, they’re not making any more of them, so qualifying automatic weapons can cost upwards of $10,000.

07/23/2012

Tab clearing (Blood Dancing Edition)

by wfgodbold

Everyone has by now heard about the tragic shooting at the midnight premiere of The Dark Knight Rises in Aurora, CO. I think this is the third mass shooting to occur since I started blogging (the other two being Loughner’s rampage in Arizona, and Brevik’s in Norway); James Holmes’s spree seems (at this point) to have more in common with the latter than the former, especially given how much planning was involved.

Of course, the usual suspects wasted no time in clamoring for an “honest conversation on gun control,” which means, of course, the same thing as “compromise.” That is, they get everything they want (more gun control), and we are left holding the bag.

Roger Ebert kicked things off, Friday, with his opinion piece in the NYT, in which he calls our gun laws “insane.” He talked about how no one at the theater in Aurora shot back, even though people say they need guns to defend themselves. Apparently Cinemark has a no guns policy. This policy was just as effective here as they were at Virginia Tech, Fort Hood, and pretty much everywhere else there’s been a mass shooting in the US. Ebert also mentions a guy he knows in Chicago who was carrying a pistol, and showed it off to Ebert and a mutual friend in a bar. That can’t be; guns are all but banned in Chicago, and carrying them is right out. Ebert even brings up the recent shooting in Toronto. Canada has stricter gun controls than the US (and has a de facto ban on carry), and yet those stricter laws didn’t stop that shooting.

For that matter, Australia has even tougher gun controls, and yet the violent crime rate there is greater than in the US. In fact, the gun crime rate increased after gun control measures were implemented.

Eliot Spitzer, the erstwhile governor of New York, who resigned in disgrace amid a prostitution scandal (he’d spent ~$80,000 on call girls while he was NY’s Attorney General and governor), felt the need to chime in, too. Apparently, the shooting was “inevitable,” and we shouldn’t be shocked given our lax gun laws. He hits all the Brady and CSGV talking points: we should ban “military-style assault weapons” and “assault clips holding more than 10 rounds,” and we should require microstamping. Unlike the federal Assault Weapons Ban of ’94, New York’s AWB had no sunset provision; standard capacity magazines and weapons that have more than one “scary” cosmetic feature are still banned there (unless you had them prior to the ban, in which case they’re just fine). Microstamping is infeasible; the cost alone is prohibitive, and it could be defeated by simply swapping the firing pin out. Even setting that aside, microstamping would have affected the shooting in Aurora not at all. The shooter was the only one armed, and he just waited for the police to show up. There’s no question what guns the casings in the theater came from. Spitzer wants “meaningful gun control,” like what other nations have put in place. Too bad the gun control those other nations have doesn’t actually make anyone safer (see above!).

Amy Sullivan joins Bloomberg in demanding an “honest debate about guns.” Of course, Bloomberg has made his disdain for the Constitution clear in the past (what with his very own anti-gun organization (MAIG), and his blatant, repeated, and institutionalized violations of the Fourth Amendment (stop-and-frisk)). Sullivan immediately starts blasting the NRA for opposing the UN Small Arms Treaty, since it wouldn’t supersede the Constitution, and would only apply internationally. Well, if that’s the case, why would she use the Aurora tragedy to advocate for this treaty? After all, if it’s only international and wouldn’t supersede the Constitution, bringing it up seems like a complete non sequitur. She doesn’t bring up any domestic gun control ideas at all (she feigns horror that Congress has done nothing in the two years since one of their own was shot in a similar mass shooting in Arizona); all she talks about for the entire last half of her piece is the UN Small Arms Treaty.

Even the New York Post gets in on the blood-dancing game. They do admit that this shooting is no reason to get rid of the Second Amendment, but they also say, “there is no legitimate reason for gun-sellers to be peddling militarized accessories, like high-capacity ammunition magazines, speed loaders and such.” I know it might be hard to believe, but aside from New York, Massachusetts, New Jersey, California, Maryland, and Connecticut (I think that’s all of them), “high-capacity” magazines are perfectly legal. In fact, they’re not high-capacity at all; 20- and 30-round magazines are standard for the AR-15. As I understand it, Holmes did have a 100-round drum magazine (which don’t come cheap). For that matter, 15+ round magazines are standard for pistols (my P226 holds 18 rounds of 9mm in each magazine); I think the .40 S&W Glock models Holmes used both come standard with 15-round magazines as well. In fact, the large magazine the shooter used here backfired; it jammed (something similar happend during Loughner’s shooting; his 30-round magazines for his pistol were more unwieldy than standard magazines, and his fumbling them provided an opportunity for people to attack him (IIRC, anyway)). If Holmes had used standard 30-round AR-15 magazines, I doubt he would have had the problems he did with his 100-round drum magazine.

The New York Daily News puts the blood on the hands of Obama, Romney, and the NRA (and not, you know, on the actual shooter). The editorial board demands gun registration (how gun registration would have stopped Holmes, I have no idea; the worst thing on his record before this was a traffic ticket, I think). They talk about how street-crime shootings dwarf the big massacres (in terms of body count), and if only we had laws limiting access to guns, this would magically stop. They are shocked that Holmes was able to drive around with his guns (how else are you going to get to a gun range, or get home from the store where you bought your guns?). And, of course, they clamor for a reinstatement of the AWB at the very least. They even bring up the Columbine massacre. Of course, they don’t point out that Columbine happened in 1999, right smack-dab in the middle of the ’94 AWB. If an AWB were going to stop mass shootings, wouldn’t it have stopped that one?

Actor/comedian Jason Alexander went on a long rant about the Second Amendment and gun control, and how rifles like the AR-15 shouldn’t be in civilian hands. He quotes Alexander Hamilton and Merriam-Webster on militias. He doesn’t, however, quote George Mason, who said, “I ask, sir, what is the militia? It is the whole people except for a few public officials.”  Alexander rants for a while, and trots out various canards, finally closing with this statement: “I’ll say it plainly – if someone wants these weapons, they intend to use them. And if they are willing to force others to “pry it from my cold, dead hand”, then they are probably planning on using them on people.” Now, the AR-15 is probably the most popular rifle in the US today; people use them for hunting, for target shooting, for home defense, for varmint control, and for shooting competitions. They buy AR-15s because they look cool, because they’re easy to use, because they’re modular, because politicians don’t want them to have them, and because it’s virtually identical to the rifles they used in the service. These rifles are rarely used in crimes (if you’re going to commit a crime, are you going to lug around a rifle, or are you going to stick a pistol in your waistband?).

Not all of the media coverage has been negative; CNBC points out that the forces agitating for gun control are now mostly impotent.

The shooting in Aurora was a tragedy. It was not, however, the nefarious work of the gun lobby, or the NRA, or politicians. It was the work of one man, who, in the words of Alfred, just wanted to watch the world burn.

My thoughts and prayers are with the victims and their families.

The anti-gunners, though, are just using this to try to drum up political support and donations so they can push their misguided views on the rest of us.

04/27/2012

Jim McGovern came up with a genius plan to eviscerate Citizens United…

by wfgodbold

By amending the Constitution such that (H/T Eugene Volokh):

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulations as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

Prof. Volokh focuses on the impact this will have on freedom of the press; since most media organizations are corporations, and Section 2 expressly excludes corporations from any constitutional protections of any kind (including freedom of the press), this will make it more difficult to raise capital.

That’s all well and good, but as I read Sections 1 and 2, it occurred to me that Jim “NRA F-rated” McGovern had inadvertently delivered the coup de grace to the “collective rights” argument for infringing on the Second Amendment (which, after Heller and McDonald, was already practically dead (you know, aside from certain reactionary holdouts)).

After all, if “people” refers to natural persons, how could it possibly mean the right to keep and bear arms in the service of a militia? Or as part of an army?

Sure, those aren’t corporations, but the Second Amendment refers to the right of the people to keep and bear arms. And if this new amendment explicitly states that the rights protected by the Constitution are the rights of natural persons (and an army or a militia is no more a natural person than a corporation is), I don’t see how you could consistently argue that in this one case, the right isn’t an individual right.

Well done, Jim McGovern.

In your misguided quest to infringe on free speech, you inadvertently euthanized the antiquated view that the right to keep and bear arms is not an individual right.

03/29/2012

Congrats to North Carolina

by wfgodbold

On having their ban on carry during declared states of emergency struck down in federal court as unconstitutional.

The Fourth Circuit judge applied strict scrutiny and found that the law excessively burdened law-abiding people who chose to exercise their Second Amendment rights.

I had completely forgotten about it since I posted in June of 2010 about North Carolina’s gun laws being the next target in Alan Gura’s genius master plan.

I look forward to his next victory with great anticipation.

02/14/2012

It may have taken me longer than most to get around to it…

by wfgodbold

But I did manage to doff my hat to Starbucks today (and leave a Jefferson in the tip jar).

When you’re fighting against people on the wrong side of history, every little bit helps!

It doesn’t hurt that they’re completely divorced from reality, either.

On the other hand, I paid cash for my coffee.

Now the fuzz has another reason to put me on a list.

12/23/2011

News flash: Xbox live avatars with guns can’t actually hurt you

by wfgodbold

In his response to the thread about the news that a couple of avatar items will no longer be available for sale on Xbox Live, poster jim-jam bongs says:

Just to explain this for Americans who are so accustomed to a culture which celebrates violence and condemns sexuality that they can’t see the issue here; outside the US people in the first-world generally don’t carry weapons around with them, so we don’t really feel comfortable with things which glorify violence. When it’s in the context of a narrative (i.e. in a game) it’s justifiable, but equipping your avatar with a firearm is a tacit approval of the idea that it’s cool to bear arms (hint: it’s not really).

Look.

It’s an avatar. It’s not real. The gun your avatar is holding is no more real than the gun your character in the game uses to kill aliens/Nazis/terrorists/hookers.

Pictures/computer models/models/whatever of guns don’t glorify violence any more than knives or baseball bats or golf clubs “glorify” stabbing or beating, or baseball or golf. They just are.

Carrying firearms is normal in forty-nine states. Just because you get the vapors when you see a CG person holding a CG fake gun is no reason to assume that you are correct. Acting all high and mighty from outside the US, sneering down your nose at the people you think “glorify” violence, is just ridiculous.

I, for one, am happy to live in a society where the strong and young don’t have free reign over the weak and old.

That said, it’s apparently against Microsoft’s policy to allow avatars to have guns in the first place. That’s their prerogative, since it’s their service, and they set the rules.

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