Heller symposium
Attended it tonight, at George Mason Univ. School of Law. Most was about things I already knew, but I did get to meet Dick Heller,
Then there was Dennis Hennigan of Brady Campaign. He was explaining hiow Heller was actually a good thing for them, since now they could pass various forms of legislation without anyone being able to argue it will lead to confiscation. Unfortunately time ran out in the Q-and-As before I could ask him "If Heller is such a great thing for you, policy-wise, does this mean you are going to support incorporation and application to the States? Wouldn't that be even better for you?"
A friend pointed out an amusing incongruity. The event was held in the Robert Levy rotunda. Levy was one of the attorneys for Parker/Heller, and there's a plaque to him in the hall. There is also a plaque to the law school's first dean. Who wrote the first law review article arguing for a collective rights view, back in the 1930s.
The two plaques are nearly facing each other across the hall.
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NY ruling applying Heller
New York permit holder has permit revoked for violation of safe storage requirement, which I gather would require the gun to be locked away. The NY Supreme Court (caveat: that is NOT the highest court in the State, NY follows a strange naming rule for its courts) overturns the revocation, noting that Heller found such a storage requirement unconstitutional. (The question of whether the 2A is incorporated via the 14th is overlooked).
Hat tip to Jacob Rieper of NY State Rifle & Pistol Association, and James Cochrane.
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Suit against Washington state
SAF and NRA have filed. It's winner. The state requires resident (i.e., legal) aliens to get a special gun permit -- and then won't issue it because the issuing agency is not law enforcement, and FBI won't run background checks for a non-LE agency.
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Article on Heller and self defense
Abstract and downloadable article here.
The thesis I find a bit confusing: it talks of applying the 2A to the states without 14th A incorporation, but seems to be talking about applying it via 14th A due process incorporation (the right of self defense being fundamental) rather than privileges or immunities incorporation.
UPDATE: the need for incorporation is that the Supreme Court in Barron v. Baltimore, back in the 1830s, ruled that the federal Bill of Rights only limits the federal government. You want to be protected against state action, put it in your state constitution and sue in state court.
It's not an unreasonable legal position -- James Madison wanted another amendment to require States to comply with essentially the First Amendment, and Congress rejected it. So some states had establishments of religion into the 1830s or 1840s, and the slave states rigorously punished printing of any anti-slavery statements, or giving of anti-slavery speeches, up thru 1865. The 4th Amendment restriction on unreasonable searches wasn't applied to state action until, if I remember, 1960.
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New book on the Heller case
It's due out in November, but can be pre-ordered. Author is Reason magazine's Brian Doherty, publisher is the Cato Institute. Here's a Cato video on the Heller case. Press release says:
In Gun Control on Trial, journalist Brian Doherty tells the full story behind the landmark District of Columbia v. Heller ruling. With exclusive, behind the scenes access throughout the case, Doherty delved into the issues of this monumental case to provide a compelling look at the inside stories, including:
The plaintiffs' fight for the right to protect themselves and their families from violent neighborhoods.
The activist lawyers who worked exhaustively to affirm that right.
The city officials who fought any attempt to give citizens the right to self-defense.
The story of the Heller case stretches back to long before the decision struck down D.C.'s restrictive gun ban and forward to the future of the political and legal battle over gun control in America. Doherty provides clear, concise explanations of the issues and battles that have driven the gun control debate for decades, detailing how the Heller decision is a new starting point for the gun control debate as it passionately and energetically continues in the years ahead.
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Article on Nordyke v. King
An article in Reason, dealing with the Methusala of gun cases.
Hat tip to reader Mark Noble...
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District court rulings post-Heller
The Volokh Conspiracy has discussions of Industrious v. Cauley, and US v. Yanecy, both prohibited person prosecutions.
Industrious strangely cites the Parker Court of Appeals dissent as if it was the rule of Heller -- and botches the dissent at that (seeming to think it means the 2A only applies in DC, when the dissent claimed the 2A didn't apply in DC).
Yancey suggests that we'll see a return of what happened in Lopez: lower courts taking a Supreme Court ruling that they dislike and treating it as incredibly narrow (in that case's aftermath, finding that the ruling only applies to firearms possessed in a school zone, since the ruling mentioned that schools were traditionally a State/local matter, and refusing to extend its limitations on the commerce power to any other setting).
The holding is hardly exceptional: the 2A doesn't forbid laws against possessing guns while using illicit drugs. But the language, "Heller stands only for the proposition that the District of Columbia cannot constitutionally ban handgun possession in the home for use in self-defense by persons not otherwise prohibited from gun possession" is what gives concern.
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Roundup of Nordyke briefs
Gene Hoffman has the collection, in pdf.
UPDATE: he also has the State's (i.e., King's) brief, here. So far as I know there were no amici supporting the State.
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Amicus briefs filed in Nordyke
Here's amicus of Prof. Aynes, Curtis, Lawrence and Van Alstyne. Prof. Curtis is one of the biggest names in 14th Amendment scholarship, and Van Alstyne is one of the biggest names in constitutional law, period.
Here's the amicus for NRA and CalGuns.
Both are quite good, and filed a little early (deadline is tomorrow).
I posted on the exceptionally long-lived Nordyke case a while ago. Filed in 1999, yet stayed around long enough to take advantage of Heller.
Hat tip to reader ambiguous ambiguae...
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Senate blocks rollback of DC gun regulations
Story here.
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House passes bill cutting back DC gun laws
Story here. As predicted, the mushy version went down in flames, and the stronger one passed 266-152. From here it goes to the Senate, with uncertain results.
Hat tip to reader Ambiguous Ambiguae...
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DC City Council amends laws as Congress debates its bill
Story here.
To think the Heller ruling is not yet three months old, and DC is trying to run faster than a Demo Congress can pursuit it....
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More on DC legislation
Yup, back in town, dog tired.
The Washington Post reports that the DC City Council is considering a further retreat, to try to avoid Congressional legislation. It may repeal the ban on semiautos, and the requirement that firearms be disassembled or trigger locked.
Hat tip to reader Jim Kindred....
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More on the fight over the Federal DC legislation
Politics can be confusing. Story here. Basically, the House committee is expected to report out a much watered-down version, but the rule for debate (fixed by Rules Committee, directly under Pelosi's thumb) allows a quick up or down vote between that and the stronger version (which, with nearly half the House cosponsoring, will likely win).
If that's accurate, Pelosi is giving the antigunners at most a chance of save face before being defeated. (Cue in Twilight Zone theme here).
Hat tip to reader Ambiguous Ambiguae...
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House to vote today on DC bill
Story here. Sounds like the leadership IS rushing the bill along. A lot of blue dog Demos in tight races were demanding the vote, to show their gunny credentials.
Again, how far the nation has changed. I can't picture Pelosi allowing it, or having her comrades pushing hard for a vote on it, a few years ago, and ten years ago arguing that something like this would happen would have seemed delusional. I remember the fight for FOPA, 21 years ago. We had to work hard, and make a lot of amendments, just to get the Reagan Admin. aboard, the House stuck us with a full auto ban as a price, the Senate added on amendments that made no sense just to keep the media at bay, and the whole thing took six or seven years to accomplish.
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WashPo on bill affecting DC gun laws
Cam Edwards has a fine post dealing with a WashPo editorial that seems to have been based on reading the Brady Campaign's press release, rather than the bill in question.
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Upcoming law review articles on Heller
Nelson Lund, Heller and Second Amendment Precedent argues that Heller erred in trying to reconcile its result with US v. Miller, when it should simply have recognized that Miller was wrongly decided.
Nelson Lund, Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts argues that the 2nd Amendment should be incorporated into the 14th, and applied to the States, and that lower courts should not rely upon anti-incorporation case law and upon "it's up to the Supremes to change things."
Larry Chapman, Second Amendment Plumbing After Heller on the other hand, argues against 14th Amendment incorporation.
The 2A is becoming the one interesting field of con law. The First Amendment has been mined for, what, forty years or so. Debates over what is obscenity, what are fighting words, and whatnot are really getting to be a bit boring. But the 2A can keep scholars busy for another few decades. And the courts, as well.
UPDATE: Yep, in the 21st century we distinguish between "rights" and "privileges." But when the drafters of the 14th Amendment used the terms in 1868, they used "privileges and immunities" interchangeably with "rights." Sen. Jacob Howard, who introduced it in the Senate, gave a speech in which he listed the privileges and immunities of US citizens -- a list so long that the first eight amendments came at the end. (Remember the Constitution itself had some rights or protections, limits on suspending habeas corpus, enacting bills of attainder, etc.)
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Chicago suburbs trying to get around Heller
Chicago Public Radio has a story. The group doing the drafting, Legal Community Against Violence, is a Joyce Foundation subsidiary.
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Dems pushing DC gun regulation rollback
Story here.
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Difficulties of getting a handgun in DC
Story from WTOP News. One FFL dealing with the public (temporarily out of business while he changes address), $125 charge to transfer and paper a gun.
Interesting that, while before Heller, the city government was predicting the fall of Republic if their ban wasn't sustained, and now the Chief of Police is simply encouraging people to get firearms safety training, and suggesting maybe someone ought to open an indoor shooting range in the city.
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US v. Fincher: no 2A right to own an NFA in a private militia
The 8th Circuit has so ruled. (pdf). The ruling essentially says that a well organized militia must be a State organized militia (and the State law recognized non-Guardsmen only as the "unorganized militia") hence his possession of the NFA firearms was not related to service in a well organized militia.
I can't see how this analysis can be squared with Heller, where Heller was not a member even of DC's unorganized militia (he was over the age limit) and DC didn't want him to have the firearm in question.
The court does turn to Heller -- without noting that its preliminary point is contra to Heller's holding -- and holds that machine guns are not in common use.
The ruling also sustains a trial court order that forbade his counsel to argue the 2A issue to the jury. This would be in accord with case law over the last century or so, but not in accord with the practice at the time of the framing. For my money, it just makes trials more boring. Patrick Henry would be serving a million years for contempt these days. (A side issue: many courts require counsel to stand at the podium, 30 ft or so from the jury, while arguing. This again makes things rather impersonal and thus boring. I think it's a matter of control -- don't want attorneys to have too much influence -- and a feeling that if everything is mediocre and contained, things will be fairer, since an attorney who cannot speak worth a dang will not be disadvantaged. Goodbye Patrick Henry, and goodbye interesting trials).
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Justice Kennedy on Heller and 14th Amendment
Here it is, in RealMedia video format. Justice Kennedy is speaking at the 9th Circuit Judicial Conference. He gets to Heller about 38 minutes in (and the rest of it is interesting, too. He has a great sense of humor.
My notes:
Audience member asks him what are the best teaching cases of his time on the Court. He names Heller, and continues:
I taught a 2A course for one year back in the 1970s, just because it was interesting. Back then, there was no there, there. Few cases and no "highly restrictive laws." Heller is a "great teaching case."
14th Amendment -- we'll have to revisit the entire incorporation doctrine (he sounds like he relishes the idea). And it's a very important case [he's referring to Heller, but I wonder if he means in follow up cases, or the 2A iin general] case for levels of scrutiny. Is the right to arms like the right to property, subject to many restrictions, or like the right to speech, subject to few?
The dissent said -- you're discovering this right after 200 years? What gives? That's not unusual. The first time we struck down a state law for violation of the establishment clause was in the 1940s, the first time we struck down a state law for violating freedom of speech was in the 1930s. Nothing wrong with that. The Constitution takes on new meaning over time. [This could be read as "living constitution," but I think he means that new meaning may be discovered by the Court]. I'm not in a class with the great Justices, Marshall, Holmes, but I do have the advantage of being able to view 200 years of history and know thereby what was folly and what was wisdom. If a right takes on new relevance, the Framers would have wanted us to recognize that.
Update: the link (rtsp://video1.c-span.org/60days/ac080908.rm) is a strange one, and I think it only works if you have RealPlayer installed).
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Post-Heller case on Lautenberg matter
At the Volokh Conspiracy, Gene Volokh has a posting on a rather thinly reasoned District Court case, involving a gun possessor who had a misdemeanor DV conviction. The court does little more than cite other post Heller district court decisions upholding other restrictions (e.g., felon in possession) in concluding that there is no 2A problem.
The comments are interesting, one of them pointing to the Defendant's motion to dismiss, which is as thin as the opinion, basically a bunch of quotes from Heller and then a note that Defendant was convicted only of a misdemeanor. Rather illustrative of the worries of many (including me) prior to Heller, that a 2A case might reach the Court on very flimsy arguments in a criminal case.
Also as some comments point out, district courts have massive dockets, and a natural inclination to duck complex legal issues -- those will be for the Circuit Courts to figure out. I spent part of today in a pretrial conference in the local US District Court, on a civil case. The judge reportedly has over 500 cases on his docket, mostly criminal and subject to deadlines. We needed two weeks for a civil trial, and got set for next March, unless a six week criminal trial that he has set cancels out. This is after all discovery and major motions have been dealt with, and everyone is ready to roll.
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What Congress should do, post-Heller
Bob Levy and Dave Kopel have an op-ed in the Wall St. Journal on the subject.
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Heller and W. Va. municipalities
Not that there's a lot of strict gun laws there, but even so, Heller is having an impact.
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Aftermath of DC v. Heller
The National Shooting Sports Foundation is scheduling gun courses for DC residents. And DC residents are forming a lobbying group.
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Will wonders never cease, part 4
Via Snowflakes in Hell comes this pdf of the House Demos' proposal for a restoration of DC gun rights bill.
It has ambiguities, as might be expected, but does do away with the semiauto ban, and forbids the city to "unduly burden" firearms rights. It also *appears* (don't have time to research the DC Code) to repeal registration except as to NFA-type firearms, and to allow DC residents to purchase in VA and MD.
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Pelosi may fold on Souder bill re DC gun laws
The DCist is reporting that House Speaker Nancy Pelosi may allow a vote on Rep. Souder's (spelling corrected) bill. Actually, the report is that she'd have vulnerable blue dog Demos introduce the same or a similar bill, and allow a vote on that.
Here's a more extensive report in The Hill. The bill would strike the ban on semiautomatics, allow residents to buy from FFLs in VA and MD, and (altho this is a bit much to hope for, and may be a reporter's error) end the registration system. The discharge petition filed by Souter (which would discharge it from the committee which is holding it and bring it to the floor) already has 164 signatures, of 218 required.
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Rep. Souder on DC right bill
Rep. Souder, who introduced a bill to curtail DC's resistance to Heller, has a well-written letter to the editor in the Washington Post.
Via Instapundit...
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Heller II is filed
It's a challenge to DC'S continuing ban on semiautos.
(Blogging was slow today due to a meeting, and will be slow for a day or two due to research and travel).
Update: Heller has to file a second suit, since his first one alleged that he wanted to possess a revolver, so whether DC's ban on semiauto pistols is unconstitutional wasn't an issue and wasn't ruled upon. Logically, it stands to reason that a ban on semiautos -- the majority of pistols made todqy -- would be about as invalid as a ban on all pistols, but that wasn't within the first appeal or the Supreme Court ruling, and can't be settled without another suit with a chance for DC to defend.
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Good list of procedures for registering a gun in DC
Right here. A bit more complicated than in AZ, where the checklist consists of "buy a gun."
I had a person tell me, years ago, that when they moved here they called the Sheriff's Office to find out how to register their pistol. The answer was "you can't." She said that she just didn't feel comfortable with an unregistered gun, could she send them a letter with the data. The deputy responded that she could, but they' probably toss the letter, since they have no files for anything like that.
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Post-Heller roundup
In the Washington Times, Jacob Sullum argues "D.C.'s political leaders know they are inviting another Second Amendment lawsuit, but they are determined to defy the Supreme Court and the Constitution for as long as possible."
While the Washington Post upbraids Congress for considering legislation affecting DC's new laws: "DISTRICT residents are sadly accustomed to congressional interference in their affairs. Usually, the meddling comes in a bid to overturn local legislation."
Rather strange, since the Post otherwise supports Congress "meddling" in State and local affairs. I guess it just figures Congress should control everything except the federally-owned enclave where Congress sits.
And the LA Times notes that DC residents still can't buy guns. The Gun Control Act of 1968 forbids them to buy handguns in Maryland, VA, and other States, and the DC government hasn't promulgated regulations on purchasing guns. (I wonder if it has to. The ban was a ban on registrations, overlaid on an existing registration system. Unless the registration system had some ban on sales, too, there would be no regulations necessary to allow a sale).
Hat tip to Dan Gifford.
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DC's compliance with Heller
An article at Reason Online.
Via Instapundit....
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Article on San Fran suit
And a good one.
Hat tip to reader Jack Anderson....
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California case: Nordyke v. King
Good summary of it at CalGuns Foundation. I was surprised to learn the suit is still alive!
In 1999, Alameda County passed an ordinance banning guns on public property, including the location where the gun show was usually held. A challenge was filed in Federal district court, and the judge spontaneously raised the 2nd Amendment question, before ruling against the challenge. To be precise, he denied an injunction at the outset of the case. He didn't dismiss it.
It went to the 9th Circuit, which asked the California Supremes to clarify a state law question.
The 9th ruled in 2003 that plaintiff had no standing, following prior 9th Circuit rulings -- it was a state right and he wasn't a state. But the majority opinion suggests that, but for the prior rulings, the judges would have ruled differently, and one judge concurred to say he thought the prior rulings were dead wrong.
After that, the case went on in District Court (all that had been denied was an injunction at the outset). In 2007, the District Court ruled in favor of the County, and an appeal was filed with the 9th Circuit. After Heller, both sides have requested to brief the 2A issue. Good news is that the same three judge panel will hear it.
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Debate over the world post-Heller
Robert Levy, David Kopel, and Dennis Henigan (Brady Campaign) have a debate going over at Cato Unbound.
Via Instapundit...