2nd Amendment Tag

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.

Peruta v. County of San Diego (742 F. 3d 1144) was the 9th Circuit 2-to-1 ruling this past February that found unconstitutional California's "may issue" scheme to restrict the public carry of a firearm to the wealthy and politically influential. (The full-length opinion is embedded at the bottom of this post.) Specifically, the court found that:

San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.

(As an aside, I had the opportunity to meet briefly with Mr. Peruta when I spoke at the NRA's 17th Annual Firearms Law Seminar this past April, and found him quite personable.) One potential consequence of this ruling was that the losing parties could request the case to be reheard by the entire 9th Circuit panel, consisting of 11 judges.  It was generally believed that the larger panel would be much less amenable to the plaintiff's claims than was the two-judge majority in the underlying Peruta decision. (The 9th Circuit as a whole is widely referred to as "the most liberal circuit in the country.") The San Diego County defendants, however, declined to seek an en banc rehearing of the case. In an effort that can only be described as desperate, the state of California and various gun control organizations (including the moribund Brady Campaign) sought to step into the defendants' shoes by obtaining intervenor status; this would have enabled them to request the en banc hearing not sought by the actual defendants. Yesterday, however, the 9th Circuit crushed these hopes by denying them intervenor status.  This decision ends Peruta for purposes of the 9th Circuit, and thus has been perceived by many as being the final decision on the "may issue" matter in the Circuit.

The White House chose to commemorate yesterday's one year anniversary of the shootings at Navy Yard by calling once more for a rollback of the Second Amendment. From the White House website:

One year ago, our dedicated military and civilian personnel at the Washington Navy Yard were targeted in an unspeakable act of violence that took the lives of 12 American patriots. As we remember men and women taken from us so senselessly, we keep close their family and friends, stand with the survivors who continue to heal and pay tribute to the first responders who acted with skill and bravery. At the same time, we continue to improve security at our country’s bases and installations to protect our military and civilian personnel who help keep us safe. One year ago, 12 Americans went to work to protect and strengthen the country they loved. Today, we must do the same – rejecting atrocities like these as the new normal and renewing our call for common-sense reforms that respect our traditions while reducing the gun violence that shatters too many American families every day.

If I didn't know any better, I'd think that Obama's foundering administration is trying to use the deaths of "12 American patriots" as a springboard for another gun control debate---just in time for November.