2nd Amendment Tag

I covered the federal court ruling in Mance v. Holder in some detail last month, and if you haven't yet had an opportunity to get up to speed on that decision it might be useful to take a moment to click over: Federal Court: Handgun Transfer Ban Unconstitutional. (That post includes the full-length ruling.) In brief, in Mance v. Holder US District Court Judge Reed O'Connor found that the federal interstate handgun transfer ban was unconstitutional on its face--specifically, the provision that requires an out-of-state handgun purchaser to transfer the handgun through several FFLs before taking possession. Most interestingly, Judge O'Connor found the requirement to be an unconstitutional infringement of the 2nd Amendment under both strict and intermediate scrutiny, as well as an unconstitutional infringement of the 5th Amendment under strict scrutiny. As observed in our earlier post on the subject:

Based on its conclusion that the federal handgun transfer ban was, both facially and as applied to the facts of this case, unconstitutional under both strict scrutiny and intermediate scrutiny, the Court granted the Plaintiff's motion for Summary Judgment (thus granting them victory without having to go to trial), and enjoined the Defendants (AG Holder and ATF(E) Director Jones) from enforcing those provisions of the federal handgun transfer ban.

On Wednesday, February 11, the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) suffered a humiliating federal court defeat that struck at the very core of its power.  In response, it took the DOJ and the BATFE only two days to petulantly strike back at gun owners in the form of a late Friday order intended to ban a major type of ammunition for the single most commonly purchased rifle. (The BATFE's "framework notice" released Friday evening is embedded at the bottom of this post.) Last week's federal court summary judgment against the government in Mance v. Holder struck down a key provision of the Gun Control Act of 1968 (GCA) requiring all interstate handgun transfers to pass between FFLs in each state was struck down as an unconstitutional infringement of the 2nd Amendment under both strict and intermediate scrutiny, as well as on 5th Amendment Due Process grounds. (We covered that decision in detail right here at Legal Insurrection: Federal Court: Handgun Transfer Ban Unconstitutional, and the PDF of that court order can be found at that link.) Never before had the Gun Control Act of 1968 been so grievously wounded, and the BATFE's authority so profoundly shaken, and lawful American gun owners were appropriately ecstatic. Like any wounded beast, of course, the BATFE faced an existential imperative to reassert their authority, and late Friday afternoon (in a move that's long ago become standard operating procedure for the Obama administration) they did so with a vengeance.

When a 72-year-old retired school teacher faces a 10 year felony sentence (a likely life sentence) for possession of an unloaded 18th century flintlock pistol, one knows immediately that we can only be talking about a handful of states in which such a travesty can happen.  In this case, not surprisingly, it's the "Garden State" of New Jersey. (h/t Sebastian over at the Shall Not Be Questioned blog.) Gordon Van Gilder, who taught in the New Jersey school system for 34 years, is a collector of 18th century memorabilia.  He acquired a genuine antique flintlock pistol from that era, and had it unloaded and wrapped in a cloth in his glove compartment when he was pulled over for an alleged minor traffic violation.

Yesterday a federal district court in the 5th Circuit ordered summary judgment in favor of several plaintiffs who challenged existing restrictions on handgun transfers across state lines; the court found that the federal government’s existing handgun transfer ban was unconstitutional both on its face and applied to the facts of this case, under both strict scrutiny and intermediate scrutiny, and on 5th Amendment Due Process grounds. The order in the case of Mance v. Holder (PDF at bottom of post) is refreshingly clearly written, and I encourage even non-lawyers to “read the whole thing.” ™ In this post I’ll touch upon the high points of the decision, as well as some reasonably likely (and unlikely) practical consequences. First things first: a huge congratulations to Attorney Alan Gura for another tremendous win for the Second Amendment. While the immediate practical effects of this order are likely to be limited, it is yet another ratcheting of the law in the right direction. Everyone remembers, of course, that it was Alan who successfully litigated both of the groundbreaking Second Amendment cases Heller and McDonald before the US Supreme Court.

I must admit, I had a serious attack of schadenfreude when I learned that the #BlackLivesMatter protesters in Boston were upset by the outrage directed at them after they blocked Route 93. I guess I wasn't surprised that some protest leaders live at home with their parents in wealthy suburbs. I guess they were stunned to learn that people trying to get to work felt that their own lives mattered, too. Let's contrast this event with another rally by gun rights activists in the blue haven of Washington state. The Washington Firearms Leadership and Activism Group (WAFLAG), Protect Our Gun Rights Washington, and the Gun Rights Coalition hosted Rally for Your Rights against I-594, an "18½-page incoherent, rambling, unconstitutional gun control initiative" that was recently passed by the state legislature. Given the crowd and the passion, I suspect it will not be the last event.

More than 200 gun-rights activists, most of them carrying firearms, rallied on the steps of Washington's Capitol Thursday morning to protest the expansive background-check law state voters passed in November. State legislators and other opponents of Initiative 594's requirement of background checks on all gun sales and transfers voiced their belief that the new law unfairly infringes on their constitutional rights, and a handful of the protesters carried long guns into the public viewing gallery of the state House of Representatives just as the morning's brief floor session ended. A series of speakers urged the crowd outside the Capitol to work to build support to repeal Initiative 594, both by contacting their legislators and by lobbying their friends and relatives. Several I-594 opponents carried signs with messages including "Prosecute criminals not harass us" and "I will not comply" during the chilly morning rally. ....Although the protest was explicitly directed against the new background-check law, a number of speakers and crowd members said their feelings extend to an opposition to gun control efforts in general.

But, like the Boston rally, there was some real drama. This video shows state representatives Graham Hunt and Matt Shea making an appearance to discuss some of their proposals to support the rights of Washington's gun owners, which seems typical of a political rally.

In the first ruling of its kind since 2008's DC v. Heller, a three-judge panel of the Sixth U.S. Circuit Court of Appeals unanimously ruled that the federal ban on gun ownership for anyone who has been “adjudicated as a mental defective or who has been committed to a mental institution” violates the Second Amendment. Michigan resident Clifford Tyler sued in federal court after the 18 U.S.C. § 922(g)(4) provision regarding firearm ownership by those adjudicated mentally ill prevented him from buying a gun. Bloomberg has the background on the case:

Tyler, 73, was committed to a Michigan mental institution in 1985 after suffering a breakdown tied to a contentious divorce, according to court filings. After a month he was released and went back to work and had no other instances of being committed, the filings show. When Tyler sought to get a gun permit in 2011, he was denied it on the basis that federal law excludes those with past history of mental illness from owning a weapon unless they fall into the statute’s exceptions. Other classes of people, including undocumented workers, convicted felons and drug offenders, are also barred from legally owning a weapon under the law, but they are supposed to have an opportunity to show they fall into exceptions to the statute.

Until 1992, Congress provided funding for gun application review, which gave applicants with a history of mental illness the opportunity to prove that they were statutorily fit to own a firearm. When that funding dried up, many states, including Michigan, discontinued the program, leaving people like Tyler in a no-win situation.

When you think of Texas, you probably think of a magical wonderland of beer, brisket, and high-powered weaponry, all proudly put on display as if to say, "This is America, and we have won it." If you're indeed thinking that, you're absolutely right, of course; but you may be surprised to know that Texas is just one of a handful of states still harboring an outright ban on the open carry of handguns. During the past three legislative sessions (the Texas legislature meets every other year,) elected officials have tried and failed to cobble together a viable open carry bill; but Greg Abbott, current Attorney General and Governor-elect, pledged during his campaign to make open carry happen for gun-loving Texans, and he doesn't seem to be backing down. Via Fox News:

"If open carry is good enough for Massachusetts, it's good enough for the state of Texas," Abbott said the day after his election last month. And if Texas, which allows concealed handguns, embraces open carry — rolling back a 140-year ban — it would be the largest state to have done so. Open carry drew wide support in the 2014 statewide election, and at least six bills have already been filed for the upcoming session, which starts in January. Abbott has already pledged to sign one into law if sent to his desk. Coni Ross, a 63-year-old rancher in Blanco, carries a handgun in her purse for personal protection and said she'd like the option to carry it openly on her belt if she could. She already does when she's on her ranch and feels comfortable with her gun by her side. "In one-and-a-half seconds, a man can run 25 feet with a knife in his hands and stab you before you get your gun out," Ross said. "If your weapon is concealed you're dead."

Coni Ross is absolutely right, and brings up an excellent point: the Texas gun culture isn't rooted in a perverse desire to brandish exciting-looking weapons at the huddled masses, but in a desire to protect lives and property.