DC Council committee proposes to retract parts of new gun law
Story here. The story illustrates a side-benefit of litigation:
"A majority of council members are on record as being skeptical of lessening restrictions on guns, although many have stressed that they hope to fend off more court challenges to the city’s law."
Interesting insight on one citation in Heller
The Michigan Bar Journal has an article, by Federal District Judge Avern Cohn, on how the Heller majority came to cite an 1829 case that equated the right to arms with freedom of speech.
Only FFL in DC shuts down
Story here. Though I've got to wonder why losing an office lease would result in complete shutdown. An FFL who stocks a modest inventory of handgun samples doesn't have elaborate office needs. I suspect it might be more a matter of the new regulations reducing demand to where it can't support even a single FFL, at DC office rental prices.The ever-prescient Alan Gura mentioned this risk to me over a year ago.
There are actually several FFLs in DC, as I recall, but most are for research (necessary for interstate shipment of firearms) or other non-retail purposes.
Hat tip to reader Clayton Cramer...
We pause now for a bit of gloating
From a 1998 statement by the American Bar Association, to the Senate Subcommittee on the Constitution:
"Mr. Chairman and Members of the Subcommittee:.
The American Bar Association appreciates the opportunity to submit its views to you on issues arising under the Second Amendment to the Constitution of the United States. The ABA serves as the national voice of the legal profession and has over 400,000 members. I am David W. Clark, of Jackson, Mississippi. I currently serve as the Chair of the ABA's Coordinating Committee on Gun Violence. I submit this statement at the request of the President of the ABA, Philip S. Anderson.
There is considerable confusion and misunderstanding about the meaning of the Second Amendment and its relationship to the power of the federal government to enact laws regulating firearms in private hands. In fact, our concern about the widespread misunderstanding of the law in this area caused our House of Delegates, in August 1994, to adopt a resolution calling on the legal profession to "...join and work with our counterparts in the medical, teaching, religious, civic, law enforcement and other professions, to ...educate the public and lawmakers regarding the meaning of the Second Amendment to the United States Constitution, to make widely known the fact that the United States Supreme Court and lower federal courts have consistently, uniformly held that the Second Amendment to the United States Constitution right to bear arms is related to a well-regulated militia and that there are no federal constitutional decisions which preclude regulation of firearms in private hands."
Few issues have been more distorted and cluttered by misinformation than this one. We agree with the views of former Solicitor General (and Dean of Harvard Law School) Erwin N. Griswold, expressed in his November 4, 1990, Washington Post column, "Phantom Second Amendment Rights," that the debate then ongoing as to a proposed ban on assault weapons should spend little time on "the unsupportable claim that restrictions would violate the Second Amendment's right to keep and bear arms."
There is no confusion in the law itself. Federal and state court decisions in this century have been uniform in the view that the Second Amendment permits the exercise of broad power to limit private access to firearms by all levels of government. The strictest gun control laws in the nation have been upheld against Second Amendment challenge, including a ban on handguns imposed locally."
Decision upholding former ban on guns in US parks
US v. Masciandaro, decided yesterday by the 4th Circuit. The court first decides that the prosecution survives the change to park regulations, and then considers the Second Amendment, with the judges splitting. The majority opinion, you could call it, just concludes that application of Heller outside the home is unsettled: a "considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation." It applies intermediate scrutiny, and upholds the statute.
Judge Niemeyer separately concludes that the right extends outside the home -- otherwise the Heller opinion wouldn't have had to talk about "sensitive places."
Judges Wilkinson and Duffy write separately, arguing that extending Heller outside the home should be left to the Supreme Court: This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square. If ever there was an occasion for restraint, this would seem to be it."
Josh Blackman, from whom I got the citation, has extensive thoughts on the case, here.
"First, Wilkinson’s paramount concern is for the role of “popular governance,” or as he put it in his article, the “democratic processes.” The Courts serve as an “impenetrable bulwark” against the elected branches to preserve Constitutional rights from the constraints of majorities. Second, Wilkinson speaks directly to social cost–or as he phrases it, “unspeakably tragic act of mayhem.” Wilkinson only focuses on the cost of one side of the equation, and ignores the cost, and therefore the liberty interests of the accused in this case. This one-sided analysis is a direct result of the weak analysis derived from Heller. Third, I cannot help but think the comment about “danger” in the “public square” was, at least in some respects, animated by the recent Tucson tragedy. Fourth, in conclusion, Wilkinson praises a “course of simple caution.” Caution is always prudent. But unilateral restraint is a far cry from “simple caution.”
Personally, two observations. (1) Judge Wilkinson's values derive from the 1980s, when Reagan conservativism saw "judicial restraint" (never strike a statute down) as a core of conservative thinking. I can't see where this is inherent to any variety (libertarian, social, or Burkean) conservativism; I think that approach is an artifact of those times, when conservatives generally got beat up in court. Their counter was legislation, and the counter to that was judicial challenges that struck down their measures. They came to see legislation as their tool and courts as the tools of their opponents.
(2) While courts are supposed to be impartial (and with judicial restraint should go neutrality, certainly), as Josh points out, there are underlying views here (firearms pose dangers with no offsetting benefits) that creep into the opinion.
DC v. Heller aftermath
In attorneys' fees disputes, it's always amusing to see how often an attorney arguing that the other guy's hourly rates are unreasonable is actually billing at a higher rate himself. These are big firms, probably with staggering hourly rates.
Judge Posner and judicial activism
Judge Richard Posner comes from the subset of judicial conservativism that isn't necessarily social conservative nor libertarian conservative, but one might say Borkian conservative -- that views avoiding "judicial activism" as a high value. He's long been publishing in opposition to Heller and McDonald, equating them to Roe v. Wade (which in his value system is a strong condemnation).
Josh Blackman has a post criticizing his latest efforts. He does a good job of tearing them apart, but to my mind his writing raise another question.
If "judicial activism" has any meaning beyond "striking down laws that I like," it must be something like "making constitutional decisions based upon the judge's own policy desires." Posner is writing things such as
"There are two important lessons that can be drawn from Becker’s discussion of gun control. The first is that a problem that is not dealt with in its early stages may become insoluble. It is not only the sheer infeasibility of removing 200 million guns from the American population, but also the emergence of a gun culture, that has ended hopes of disarming the population."
I see a judge interpreting a constitutional provision in light of his policy "hopes" as precisely the sort of "judicial activism" that Posner criticizes -- but cannot see in himself. Unless the definition becomes "to strike down a law based on my policy hopes is wrong, but to uphold it on the same basis is right," which seems a bit inconsistent.
DC gun registrations
Magnus v. US -- DC Ct of Appeals
PDF here. The DC court rules that a person can challenge a decade old guilty plea to violating DC's handgun ban, provided he can make the right showings of fact. Also interesting in that it lists other rulings of that court giving effect to the Heller ruling.
Supporters of the DC handgun ban argued that it served a crucial role in dealing with crime, and predicted that its loss would lead to all manner of dire effects.
So much for antigunners' predictive abilities....
Attorneys fees in Heller
Apparently DC is willing to pay something over $700,000 to Alan Gura and team, while the good guys seek $ 3 million. I find the thought of DC paying either sum just wonderful. (1) It's obviously nice because the right folks finally are compensated; (2) DC effectively winds up supporting their future Second Amendment litigation; (3) any government considering a potential infringement has to consider that there may be a price tag and (4) it sets nice precedent for any future motions.
Washington DC is famous for...
Here's a Google map of the US, showing the leading Google search strings relating to each State or other jurisdiction. For Texas, it's "Rangers." For Oregon, it's "Trail." For Kansas, "CIty Chiefs."
Reader Steve Barr points out -- look at District of Columbia.
Swords crossed in the challenge to NY's "may issue" permit system
Only Guns and Money has the update. It's the usual beginning to a test case: defendant files an "everything but the kitchen sink" motion to dismiss.
Heller's potential progeny
It's an article in the Wall Street Journal Blog.
Heller followup -- district court ruling
Here's the District Court (trial court) opinion. It applies "intermediate scrutiny" (more exacting than rational basis, less exacting than strict scrutiny) and upholds the new DC regulations.
[Of course, standards of review are judicial creations, and thus both arbitrary and malleable. When I went to law school there was no intermediate scrutiny. And in some settings the Supreme Court has indicated two different standards of review are applicable depending upon how far a law goes].
Challenge to DC's ban on carrying
Brian Doherty has an article on it in Reason Today. Heller was a "keep arms" case, this will be the "bear arms" one.
Hat tip to reader Mark Noble (@MarkNoble on Twitter, for those who like followups)...
Interesting post Heller case
Right here. Plaintiff challenges California's "may issue" CCW statute, and a federal district court at least says that his claim survives a motion to dismiss.
Hat tip to Gene Hoffman....
WashPo on getting a handgun in DC
"It took $833.69, a total of 15 hours 50 minutes, four trips to the Metropolitan Police Department, two background checks, a set of fingerprints, a five-hour class and a 20-question multiple-choice exam.
Oh, and the votes of five Supreme Court justices."
I never thought I'd see the day when articles like this would be allowed in the Post...
New article by Brannon Denning & Glenn Reynolds
"Heller, High Water(mark)? Lower Courts and the Right to Bear Arms". It deals with the lower courts' responses to Heller. The conclusion is that while courts haven't gone wild in striking down gun laws (surprise!) they seem to be giving Heller a better welcome than they gave some other decisions that "changed the ball game." (The classic there is US v. Lopez, the gun-free school zone case, which lower courts read as having no impact outside of school zones).
Hat tip to reader Joe Olson...
The fruits of Heller
I remember the pre-Heller predictions that striking the DC handgun ban would lead to carnage. Well, here it is: "DC Homicides, In National Trend, Hit Lowest Level Since '64".
[Here in Tucson, they hit the lowest level since 2001]
10th Circuit on DV cases and Heller
Dave Kopel has the story. They reversed, 2-1, the district judge who allowed a defendant to raise, as a defense to prohibited possessor status due to a misdemeanor DV conviction, that he posed no danger.
I do find it interesting that there have been several prohibited possessor cases that have gone for the prosecution, but by 2-1s. Not long ago that would have been unthinkable -- a 3-0 would have been a sure thing.
Palmer v. DC -- latest suit against DC
Here's the complaint, in pdf. It's filed by Alan Gura, on behalf of Second Amendment Foundation and DC residents. It challenges a number of remaining or new DC requirements, including:
Imposing a permit requirement for carrying, and then having repealed any mechanism for obtaining such permits (and refusing to register handguns if purpose stated is defense outside of home).
Refusal to issue to non-DC residents, thus violating rights to travel and equal protection.
It's one more carefully aimed followup to Heller. Heller established that the right to keep in the home would be judiciary recognized, at the federal level. The followups seek to extend that to the States, to get recognition of the right "to bear," and to chew up a number of arbitrary restrictions.
Legal guns in DC
Story here. After a year of legal registration, none of the firearms has been used in a criminal offense and, for that matter, none in a self defense incident.
DC crime drops post-Heller
Say Uncle notes that violent crime and gun crime are down in the District following Heller. Doesn't prove causation, of course, but does refute "striking the DC law will cause a bloodbath." Via Instapundit.
CalGuns Fdn and SAF challenge Calif carry permit law
Posting about it here, with link to the complaint. Filed in Federal District Court, attorneys Alan Gura and Don Kilmer.
It builds up their recent 9th Circuit incorporation win, by challenging California's carry permit system as applied in two counties. The system gives sheriffs absolute discretion in issuance, and in those county the sheriffs simply refuse to issue any. In theory, it's may issue, but in practice it's a ban, on carrying at least.
As in the other cases, very careful choice of plaintiffs and targeting of defendants.
Pair that off with their challenge to California's list of approved handguns, and it's an excellent expansion of the attack. Heller gets the right recognized, Nordyke gets it incorporated, these will hopefully lay groundwork that it cannot be arbitrarily curtailed, and move onward from there.
Thoughts on a Heller v. DC exception
Kurt Hoffman discusses attempts to bar private sales at gun shows.
What's esp interesting is a comment by reader Carl in Chicago. His point is that the Heller case is sometimes read to allow (or at least list as presumptively allowable) restrictions on sale and transfer. But Heller actually refers to imposing conditions "on the commercial sale of arms." A narrower qualification.
Followup lawsuit against DC
Press release here, and complaint, in pdf, here. As part of its new rules, DC adopted California's roster of acceptable sorts of handguns... largely ones that "look right." CalGuns Foundation lent a hand with the research and targeting. The suit singles out guns that were not certified because their manufacturers failed to pay the required fee, or had gone out of business, and listings that are exceptionally arbitrary -- i.e., one gun that is certified, but only in certain colors of finish.
More on San Fran Housing authority settling out
The San Francisco Housing Authority settled its suit with NRA (and I've been told the terms did include attorneys' fees). Now, to put a position spin on it, the Authority is contending its rules really weren't intended to ban guns:
"Tim Larsen, a lawyer for the Housing Authority, said Tuesday the agency never intended to enforce its 2005 ban against law-abiding gun owners and has never done so, even though the lease provision covered legal as well as illegal weapons.
"Our intention was to go after people who were engaged in criminal activity," Larsen said."
A busy time for Heller commentary
First, Nelson Lund of Geo. Mason U. Law School has posted a paper, "The Second Amendment, Heller, and Originalist Jurisprudence." While he agrees with the majority's conclusion, he is disappointed in, for example, its dicta regarding how certain laws would still pass muster, which is given without any explanation derived from original understanding.
At the Volokh Conspiracy, Randy Barnett seconds most of the criticisms, while feeling it was a bit harsh on Scalia.
Over at Legal Theory Blog, Larry Solum of U. of Ill. has Barnett on Lund on Scalia: The Construction Zone and District of Columbia v. Heller. He suggests the answer is in the distinction between interpretation ("the Second Amendment means we have an individual right to keep and bear arms") and construction (outside of 100% clear cases, "that doctrine, as applied to this law, yields this result"). Randy Barnett seconds his view.
UPDATE: Nelson Lund is VERY strongly individual rights, and always has been. Or at least for the decades that I've known him.
Magistrate holds statute unconstitutional under Heller
Over at the Volokh Conspiracy, Gene Volokh notes a magistrate ruling. The magistrate refuses to follow a federal statute providing that giving up all guns shall be a condition of pre-trial release in child porn cases. Magistrate concludes that under Heller, disarming a person merely accused of an offense, and a nonviolent one at that, without an individualized finding of dangerousness, is deprivation of liberty w/o due process.
Nordyke v. King dinner
Nordyke v. King is the 9th Cir. case that, after percolating forever, is now ready to be argued. A key issue is whether the 14th Amendment incorporates the 2A and binds the States. Argument is set for January 15, and afterward the CalGuns Foundation is hosting a dinner at the Hotel Whitcomb, about two blocks from the Courthouse. You can order tickets here.
San Francisco backing down
In the wake of Heller, Chuck Michel and others filed an action against San Francisco Housing Authority, over its ban on firearms in public housing. It looks as if San Francisco is surrendering.
Article replying to Judge Wilkinson
I blogged a while ago about the article by Judge J. Harvey Wilkinson, arguing that Heller was essentially non-conservative because it (like Roe v. Wade) was a mark of "judicial activism." Now Prof. Nelson Lund and Dave Kopel have a detailed reply. You can read the abstract there, and download the paper in pdf (see link above its title).
"Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.
Part II shows that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. That is not judicial restraint. It is judicial lawlessness."
9th circuit 14th Amendment case to be argued
Gene Hoffman reports the argument will be held Thursday, January 15, 2009 in the James R. Browning federal courthouse, Courtroom 1. It's at 95 Seventh St. in San Francisco.
Nordyke is the long-lived case in which the 9th Cir. panel, which astonishingly sound fair or even favorable, requested briefing on the 2A/14A issue.
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.
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.
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.
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.
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.
Article on Nordyke v. King
An article in Reason, dealing with the Methusala of gun cases.
Hat tip to reader Mark Noble...
District court rulings post-Heller
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.
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.
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...
Senate blocks rollback of DC gun regulations
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...
DC City Council amends laws as Congress debates its bill
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....
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....
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...
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.
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.
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.)
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.
Dems pushing DC gun regulation rollback
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.
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).
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.
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).
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.
What Congress should do, post-Heller
Bob Levy and Dave Kopel have an op-ed in the Wall St. Journal on the subject.
Heller and W. Va. municipalities
Not that there's a lot of strict gun laws there, but even so, Heller is having an impact.
Aftermath of DC v. Heller
Will wonders never cease, part 4
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.
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.
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.
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.
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.
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.
DC's compliance with Heller
An article at Reason Online.
Article on San Fran suit
And a good one.
Hat tip to reader Jack Anderson....
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.
Debate over the world post-Heller
Robert Levy, David Kopel, and Dennis Henigan (Brady Campaign) have a debate going over at Cato Unbound.