Of Arms and the Law

Gun limits in wake of snow storm

In the wake of the huge snow storm, the town of King, N.C., banned sale of alcohol, firearms, and ammo, and carrying of firearms . The alcohol ban was lifted in time for the Super Bowl. So far as I can see, no other jurisdiction (including DC's Maryland suburbs, Maryland not having very pro-gun statutes), did anything of the type.

UPDATE, Dave Workman, in the Seattle Gun Rights Examiner, points out it's actually mandatory under a State statute. Transporting a weapon off the owner's land, in an area declared under emergency, is a misdemeanor.

Annoyance while hunting

A perfectly clean shot, and this guy nearly ruined it by crouching on the other side of the deer. Finally he moved to the front of it and gave me a safe shot.

He was quite obnoxious after he regained consciousness, even though I took out my canteen and offered to help clean the mess off his face.

Amusing recollection

I just had a recollection-- you've got to understand that after each day of trial, the clerk prepares, and the judge edits, a "Minute Entry." It's not a transcript, just a series of notes about motions made and rulings given.

Some months ago, at the courthouse, a prosecutor told me "I never knew Judge ____ had a sense of humor, but now I know he does." I asked how he knew.

"I was trying a case in front of him and, during a recess, went to the men's room. As I was going in, I saw a fellow coming out, and noticed a $5 bill on the floor behind him. I pointed that out, he said thanks and picked it up ... and then I saw he had a juror's badge on. He was one of my jurors.
I went in and told the judge I'd had contact with a juror, and he and the defense attorney agreed there was no problem.
A fews later I get the minute entry. It read 'Mr. ____ admits to the Court that he proferred $5 to a juror in the men's room.'
So some day I may be up for an appointment to the bench, and get asked just what was going on."

Firearms possession bans in Delaware housing authority apartments

The Caesar Rodney Institute blog reports that the Delaware State Sportsmen's Association is prepared to sue against the divisions of the State housing authority that impose lease conditions forbidding firearms possession.

Just in time for tax season...

IRS is in the market for sixty combat shotguns.

"Remington parkerized shotguns, with fourteen inch barrel, modified choke, Wilson Combat Ghost Ring rear sight and XS4 Contour Bead front sight, Knoxx Reduced Recoil Adjustable Stock, and Speedfeed ribbed black forend, are designated as the only shotguns authorized for IRS duty ..."

Hat tips to readers Bill Taggert, Mike Finch, and David McCleary...

NY Times on Arizona proposals

Story here. I find the story a bit unusual ... let's see, last session the legislature allowed CCW permittees to carry in establishments that serve liquor, so long as they don't drink, and legalized defensive display of a weapon. This session the proposal is to end the license requirement (in a "shall issue" State) for carrying concealed.

What's unusual is that the story has a modest slant against ... I'd have expected the NY TImes to be incoherently ranting.

Hat tip to reader Nick Lidakis...

ATF agent sues agency, and it sues him

Some interesting developments over at Clean Up ATF. An agent had infiltrated the Hell's Angels and Aryan Brotherhood, they managed to find out where he lived, and he and his family got credible violent threats. The agency agreed to put him in the LEOs' version of witness protection and kept screwing up. When he pointed that out, his superior retaliated by withdrawing what little security he did have, and his house promptly was burned to then ground. He sues for breach of contract, ATF moves to dismiss, and loses the motion.

Then, apparently, ATF gets a US Attorney to sue him for having published a book that allegedly damaged its reputation. (I guess the expiration of the Sedition Act limited the remedy).

At the bottom of the page is a link to the court's order denying the motion to dismiss. Skim thru to p. 25, where the court lists the allegations of the complaint. Pretty spectacular.

Gun rights doing well ... in India

Story here, in the Wash Post (which is pretty extraordinary in itself).

"Verma said he plans to join the recently formed National Association for Gun Rights India to lobby against new gun controls that the government has proposed, blaming the proliferation of both licensed and illegal weapons for a rise in crime.

Although India's 1959 Arms Act gives citizens the legal right to own and carry guns, it is not a right enshrined in the country's constitution. Getting a license is a cumbersome process, and guns cannot be bought over the counter -- requirements that gun owners describe as hangovers from the colonial past, when the British rulers disarmed their Indian subjects to head off rebellion."

I can attest that the National Rifle Assn of India is all over that country's press, usually with several articles a day. It's a result of the last Olympics, where an Indian shooter picked up the country's only gold, making himself, the sport, and the main organization all very popular.

hat tip to reader John Higi....

VCDL patch in an unusual location

A Der Spiegel Online image of two rescuers evacuating an injured Haitian. It sure looks like the seal of Virginia Citizens' Defense League, a blue minuteman image against a white background surrounded by a red circle, and in the circle white letters forming four words.

Officer handcuffs victim

A CCW permitee phones 911 after he finds his office was broken into. When an officer responds, he informs her that he has a CCW permit. She asks has a firearm, he says yes, so she handcuffs him , removes his pistol, and locks it in her vehicle. To be fair, she does eventually investigate the burglary, too. First things first.

Unity

There are three ways to reach Second Amendment incorporation, at least two of which have present and powerful advocates. I can only say that I'm in correspondence with both, and they really wish there could be an end to to conflict. Bottom line: if the three routes to incorporation each got two votes, it's still a 6-3 and a win, the other side is left to ponder that "almost" only counts with horseshoes and hand grenades, and the winner who favors one route or another has some votes (for the first time in my lifetime) on which to build. They're going into the fight of their lives, no OUR lives, and don't need the distractions. We can all engage in internecine battles after oral argument, or better yet, the decision. For now they need to concentrate.

Bottom line: there is no bad way to win a case. There may be great ways and good ways, but there is no bad way. This reminds me of a W.C. Fields description of something else, but never mind. At least every conceivable angle has been covered, and any Justice who isn't 100% opposed to the right to arms or its incorporation has had a path laid out and supported, so take your pick.

Human end of the Chicago case

Here's the story. Interesting. Lead plaintiff, Otis McDonald, is a 76 year old grandfather and lives with his wife in a risky neighborhood. He's been burglarized repeatedly and once threatened with death. He has shotguns, but can't keep them on the nightstand when he turns in.

All in all, the perfect person to be bringing a 2nd and 14th Amendment challenge.

An analysis of Chicago's legal position

Right here.

Quick analysis of reply briefs

I read Alan Gura's brief last night while waiting to meet with my surgeon (1. I will live. 2. it wasn't much fun) and NRA's brief while bombed in the aftermath of that. So I went back this morning to read and plot things out. One thing is clear: the briefs give an excellent spread of arguments. I think there's only two paragraphs in which they overlap, which means it's going to be hell for the opposition. I can't adequately sum up 70+ pages in a posting, but here's the short version, by subject.

General: Privilege or immunities incorporation has a monopoly on history and logic. Due Process incorporation has a monopoly on Supreme Court case law. Odds are good that some Justices might like one, and others the other.

Privileges or Immunities: Alan puts heavy (but not exclusive) emphasis here. The articles Chicago cites arguing against public understanding apply an impossibly high barrier, approximately "prove that this was in the minds of millions of Americans 130 years ago." No right could pass that standard. "On this logic, all constitutional amendments must be meaningless..." What has been proven is that application of the Bill of Rights, and of the right to arms, to the States was covered in major newspapers, with nationwide readership, in popular speeches, etc., etc.

NRA doesn't put much weight here, preferring to argue Due Process incorporation, but does treat the legislative history as favoring incorporation generally (leaving it ambiguous as to which clause -- no matter which it is, it should be incorporated).

Subissue: If P or I is accepted, should the Court overrule just Cruikshank (relating to enumerated rights) or also nail Slaughter-House (which dealt with non-enumerated ones). Alan argues the Court should overrule Slaughter-House. It was a misbegotten case which created the standard that Cruikshank employed.
NRA argues whether the Court overrules both cases or just one, the right to arms should be incorporated.

Due Process Clause: Alan gives it 9 pages, a quarter of his argument. The case law is outlined, and the test of whether a right is inherent in a scheme of "ordered liberty." Chicago had again argued a laughably high standard -- essentially, unless you cannot envision a civilized country that lacks a right, it is not a right inherent to ordered liberty. Yet we would consider England a civilized country, and it has an established church, a monarchy, one house of the legislature sits by right of birth, and it has such a narrow version of free speech (suits for libel) that Congress is considering a bill refusing to enforce British libel judgments. We'd consider Japan a civilization, yet it only recently allowed a very restricted form of jury trial.
Steve Halbrook and Steven Poss, briefing for NRA (not to mention Kevin Martin and Joshua Lipshutz, of Goodwin-Proctor, who put in much work on it, and Paul Clement, who signed it, amount of work put in unknown), put their main weight on this clause. Chicago's claims are paradoxical -- that infringing a right can contribute to "ordered liberty." Its idea of ordered liberty is that of a police state, order always triumphs over liberty. It claims falsely that the 14th Amendment is all about equality, not only equality of rights but equality of their infringement. Presumably, Chicago thinks the Black Codes would have been no problem if their oppressions applied to everyone. The framers of the 14th Amendment would beg to disagree.

The Heller case (Chicago made an indirect run at this decision--the right is all about protecting State militias, and so should not restrict the States). Alan Gura argues Chicago neglects the fact that we are discussing what was seen as a natural and individual right. It argues from the wording of the 2A, but its drafters saw the 2A as documenting a natural right, not as creating one from scratch.
Halbrook and Poss argue that Chicago looks at the wrong history. All cases on incorporation look to the history of Reconstruction, not the history of the Bill of Rights. And in 1866-68 the intent to incorporate is clearly proven. Moreover, if it had to do with the militia, the militia was a federal resource as well as a State one, and what was protected against the federal government should also be against State governments.
Both briefs hit this with the point that the same Congress that reported out the 14th Amendment passed a law disbanding most southern militias. The bill started out as disarming them, too, and a 2A objection was raised, so its sponsor modified it to only disband them, and the opposition agreed that solved the 2A problem. So the 39th Congress saw the 2nd Amendment as relating to possession of arms, not as barring Federal dissolution of State militias.

Horrible hypotheticals, States will be forced to use grand juries, etc., if the entire BoR is incorporated. Both briefs respond, and point out that if this was a problem surely Chicago would have been able to get more than 3 States to sign an amicus in support. Our side, in contrast, got 36 to sign.

Policy argument (gun laws are good). Alan argues policy preferences cannot trump clear constitutional guarantees. The Court has, after all, enforced the 4th and 5th Amendments, even tho they impede law enforcement.
NRA argues criminals in Chicago already have guns; Chicago's attempt to disarm the honest is a failure. It cites Kleck and other studies demonstrating that arms ownership deters crime, and in particular "hot" burglaries where the house is entered while the owners are inside. These are common in England, but rare in the US.

Federalism (Chicago argues States should be free to experiment). Both briefs point out that experimentation has to stop when the experiment involves violating the Constitution.

As you can see, there are a few points of overlap, but only amounting to a page or so, out of a total of near 70. Chicago gets it from both sides on just about every issue.

Reply briefs are online

Right here. I've read Gura's, and it is first rate, now reading NRA's. As with the opening briefs, it's a good spread, with Alan's tackling privileges or immunities, and NRA tackling due process. (I've been intending to put up an explanatory post on these issues, will do over the weekend).

Hat tip to Sixgun Sarah...