NRA Annual Meeting: Firearms Law Seminar Series
“Void Where Verboten: Constitutional Challenges to Firearm Prohibitions”
As I type this roughly 79,000 people are still happily recovering from their participation in the NRA Annual Meeting held this past weekend in Nashville, TN—your humble scribe among them.
The massive scope of the event—three days of legal seminars, classroom instruction, political speeches, country music concert, and 9 acres (not a typo) of exhibits displaying an incredibly variety of firearms and related stuff and activities—is is obviously too great to cover in a single blog post.
Accordingly, I’ll share my own view of the NRAAM 2015 through a series of relatively brief posts, focused largely within my particular area of expertise—the day-long Firearms Law Seminar held on Friday, April 10. (Full disclosure, I was a speaker at last year’s seminar, but merely an attendee at this one.)
For those not familiar, the National Firearms Law Seminar is billed as providing “a unique opportunity for attorneys who represent firearms owners and firearms-related businesses to meet and discuss legal issues relevant to this expanding area of the law.” And I must say, they delivered, through a dozen talks on a variety of firearms-law related issues delivered by incredibly well-informed, experienced, and enjoyable speakers.
I’ll do this first post on the talk given by Attorney Stephen Halbrook, who has for decades been a leading legal figure in gun rights legal actions, and is perhaps most commonly known for his ground-breaking book “That Every Man Be Armed: The Evolution of a Constitutional Right.”
Halbrook gave a casual, conversational talk–entitled “Void Where Verboten: Constitutional Challenges to Firearm Prohibitions”–mostly in the form of a series of anecdotal observations, that nevertheless provided deep insight into many facets of gun rights. This post will reflect that structure.
He started by talking about the issue of firearms disabilities, meaning events or legal findings that can strip someone for life of the right to keep and bear arms—for example, a felony conviction, involuntary placement in a mental facility, or a misdemeanor domestic violence conviction.
He noted that the Firearms Owners Protection Act (FOPA) passed by Congress provides for a procedure by which the Bureau of Alcohol, Tobacco, and Firearms (BATF) can order such disabilities to be removed under appropriate circumstances—such as when the underlying felony was non-violent, occurred many years ago, and the person in question has led a law abiding and productive life since.
After passage of FOPA, however, Congress went on to strip the BATF of the appropriations necessary to fund that department—effectively eliminating any Federal-level mechanism for removing disabilities. As a result, the only disability relief currently available is at the state-level (which was discussed by another speaker, about whom I will post later).
Halbrook also spoke to the still-open question of what level of scrutiny and various balancing tests the Federal courts should apply to 2A claims, nothing that some Federal courts are applying strict scrutiny (in which case the 2A restriction almost always fails) and others intermediate scrutiny (in which case the 2A restriction almost always stands).
He notes that this whole “levels of scrutiny” model is found nowhere in the US Constitution, and wonders why the appropriate legal question isn’t simply “is the 2A right being infringed at all?” This is, after all, the actual text of the 2A: “. . . shall not be infringed.” If the answer is “yes,” the law is simply unconstitutional. (This, incidentally and unsurprisingly, reflects my own position.)
Halbrook also humorously noted that in the 1920s the anti-gun crowd was trying to argue that handguns could be banned to the public because they had ready availability to more efficient firearms for personal protection—short-barreled (“sawed-off”) shotguns. The irony is that the National Firearms Act would eventually go on to allow handguns, but “ban” (actually, highly restrict) short-barreled shotguns.
This outcome is partly an artifact of the legislative history of the NFA, which originally placed handguns in the same category as short-barreled shotguns, fully-automatic firearms, and destructive devices. Ultimately Congress was unwilling to restrict handguns in this manner, and thus the term “handgun” was removed from the bill.
Halbrook also noted the prevalence of “one-gun-a-month” restrictions favored by the gun control crowd, and wondered whether this kind of restriction would ever be even considered Constitutional in the context of, say, the First Amendment: “Sorry, you bought Mein Kampf this month, you can’t buy the Communist Manifesto until next month.” Clearly the answer is “no.”
He also noted an interesting facet of the recent Federal court challenges to the many new gun control laws adopted by Maryland in the aftermath of the Sandy Hook massacre. Maryland is in the 4th Circuit, and thus under the same Federal judges as those that rule in neighboring gun-friendly states such as Virginia, West Virginia, North Carolina, and South Carolina.
In this context he shares an anecdote in which a Maryland-state lawyer arguing that high-capacity pistol magazines are not protected by the 2nd Amendment is promptly challenged by the following question by the Federal judge: “Are you trying to tell me that my Glock with 15-round mag on my nightstand is something that’s not protected by the 2A?”
Halbrook notes that Federal judges in, say, the 2nd Circuit (think New York) do not tend to pose similar questions.
He shared several anecdotes in which Federal courts have approved as 2A-compliant certain cosmetic and functional restrictions on modern sporting rifles (e.g., “assault weapons”) such as an adjustable butt-stock on the basis that the adjustable butt-stock makes the rifle “more accurate, and thus more lethal.”
On that basis, of course, the courts should be banning rifle sights altogether.
I’ll stop there, except to strongly urge that if you ever have an opportunity to hear Attorney Halbrook speak to avail yourself of the opportunity. And, of course, his many books are available at any time.
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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.
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We really need to be more accurate. Too many otherwise intelligent people say this country is a democracy. Too many otherwise intelligent people say that we have constitutional rights. There is no such thing as a constitutional right.
What we have is a constitution that limits or prohibits the government from interfering or infringing on ALREADY EXISTING GOD GIVEN RIGHTS. Our rights come from our Creator. If it comes from government, whatever it is, it can be taken by government and is therefore a temporary privilege.
In a conversation among peers, this language misuse is not that big of a deal. When it comes from a person purporting to teach and instruct us, it is a major problem because it allows false facts to become true in the minds of audience members.
I think that most people understand that the Constitution, including the Bill of Rights, doesn’t grant us rights, but protects them.
As to “Constitutional rights”? Yes, they are our rights, and yes, they are protected by the Constitution.
The phrase “our Constitutional rights” rather than “our Constitutionally-protected rights” is common usage; and the first 10 amendments to it have been collectively referred to as our “Bill of Rights” for I don’t know how long. For you to imply that anyone employing those common usages is less-than-intelligent (“otherwise intelligent”) is a little bit petty, I think.
“On that basis, of course, the courts should be banning rifle sights altogether.”
This would make gun-control folks’ heads explode. On one hand, sights do make guns more lethal, which means they should be banned. On the other hand, a lack of sights might lead to gun owners shooting randomly without any kind of accuracy, leading to more innocent deaths!
Kinda ridiculous to base the lethality on the accuracy. It would be difficult to argue that a .22 match rifle is more deadly than an AK47 or a cheap 300 win mag
I dunno. If I had nothing else in a self-defense scenario, I’d take a hit with a .22 over a miss with a 7.62mm.
I’m sure my neighbors would, too.
Only marginally related: “Authorities suggest using a shotgun to possibly avoid a situation like what happened Sunday.”
“the adjustable butt-stock makes the rifle “more accurate”
And here I thought that adjustable stock meant that the same rifle could be used properly by people with different body types and length of pulls….. silly me….. back to rifles that don’t fit properly!
One argument is that civilians are not accurate enough, another argument is that guns should be banned because the have a feature that makes them more accurate.
Oh, yeah. That makes a whole bunch of sense. Yup.
Oh, civilians are accurate enough…
On the other hand… https://www.usconcealedcarry.com/who-are-the-greater-threats-to-public-safety-police-or-carry-permit-holders/
[…] Maryland is in the 4th Circuit, and thus under the same Federal judges as those that rule in neighboring gun-friendly states such as Virginia, West Virginia, North Carolina, and South Carolina.
In this context [Stephen Halbrook] shares an anecdote in which a Maryland-state lawyer arguing that high-capacity pistol magazines are not protected by the 2nd Amendment is promptly challenged by the following question by the Federal judge: “Are you trying to tell me that my Glock with 15-round mag on my nightstand is something that’s not protected by the 2A?”
Isn’t this the same 4th Circuit which reversed the District court concealed carry victory in Woollard v. Gallagher and then refused an en banc appeal? Or is it only sometimes pro-RKBA at the District level?
All of this arguing about God or Government given rights is semantics.
The anti-gunners don’t give a rat’s patootie about the Constitution, nor does our current administration. Neither cares much about the Christian faith. And neither will recognize your rights whether God or Government given. They want CONTROL. Nasty things like the Constitution takes away their CONTROL.
They are constantly attempting to find ways to circumvent the constitution that they swore to uphold.
Sadly, at least half of American don’t even care.