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January 2010
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.
Permalink · Chicago gun case · Comments (5)
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.
Permalink · Chicago gun case · Comments (3)
An analysis of Chicago's legal position
Right here.
Permalink · Chicago gun case · Comments (0)
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.
Permalink · Chicago gun case · Comments (11)
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...
Permalink · Chicago gun case · Comments (3)
Reminds me of my government days
At Interior (1982-1992) I chiefly represented Fish and Wildlife Service. And this article reminds me of the type of strange cases we had.
"A German man who stuffed 44 small lizards into his underwear before trying to board a flight has been sentenced to prison in New Zealand for plundering the country's protected species....
Kubus was caught by wildlife officials at Christchurch International Airport on South Island in December, about to board an overseas flight with 44 geckos and skinks in a hand-sewn package concealed in his underwear."
Permalink · Personal · Comments (1)
Yet another trip in the time machine
Here's an OCR'd version (there may be typos) of my 1974 Chicago-Kent Law Review article on the Second Amendment. So far as I can see, it's the only online text of David T. Hardy, Of Arms and the Law, 51 Chi.-Kent L. Rev. 62 (1974). By modern standards, it's quite limited. But it was a start.
How it got started is rather funny, viewed from the standpoint of 2010. I wrote the article, over a period of months, on the subject of how gun control did not work -- this became the second half of the article. My editor, Mark Collins, pointed out that this is a LAW review, and I really ought to have a section on legal issues ... how about the Second Amendment? I responded that there's nothing there -- it's something that relates to national guard units and State government. In 1974 that was the "received wisdom" of the day. He said I ought to look into it, anyway. I did and started finding some incredible stuff. Much followed from that.
Permalink · Academic treatment · Comments (7)
Subsequent history
After that article, the sequence went something like this: Dave Caplan published one in 1977, Don Kates and Steve Halbrook and Joyce Malcolm came in in 1978-79. Halbrook, Malcolm, Kates and I put out a number of articles in the lesser law reviews over the next few years. These were the years of discovery. Joyce was heavily involved in the English right. Steve discovered the newspaper articles by Tench Coxe that described the Second Amendment as protecting "private arms." I found the Senate Journal that showed the Senate rejected "bear arms for the common defense." Etc., etc.
Kates was then a law prof., which opened some doors. In 1983, he wrote a big article that summed up the discoveries to date, and got it into the Michigan Law Review. In terms of prestige, Michigan L. Rev. is clearly in the top ten. Articles in Chicago-Kent or Northern Kentucky or St. Louis University might pass under the radar of big name academia, but not one in Michigan.
Things started changing rapidly, then. Sanford Levinson, a major con law prof. at Texas, read it, was impressed, and wrote his own article arguing that by all the standards used in construing the Constitution, the 2A had to be an individual right, and got it in the Yale L.J. William van Alstyne, one of the biggest names in con law, brought out an article in Duke L.J.. Akhil Amar of Yale started publishing on the same subject. A topic that a few years before had no interest or attention now was being written on by the major figures in constitutional law, and in the most prestigious journals.
And that ultimately is the movement that made Heller possible. In 1980, the right to arms was a minor academic issue. By 1995 it was a major one, with all the big names analyzing why it was an individual right. In that year Tennessee Law Rev. hosts the first right to arms symposium issue (one where every article in an issue of the review is on the same subject).
I've suspected that we were aided by a very human factor. The 1960s and 1970s had seen major events and fights in Con law.... search and seizure, incorporation, Miranda, Roe v. Wade, obscenity standards that swung to and fro, etc. By 1990 these had all played out. There was still skirmishing over details, but no more big causes, and who wanted to write another article on obscenity or on the details of Roe v. Wade? Suddenly, people realize there's an entire amendment out there that could be discussed.
Permalink · Academic treatment · Comments (2)
Trip back in the time machine
Found something in an old archive. A copy of the manuscript (original, it has green pencil edits by the law review editors) for my 1974 article, the first law review article to argue for an individual rights reading of the Second Amendment.
It's in a manila envelope, return address "Knox, Box 3030, Prescott AZ" (click on thumbnail to get full size). Background: I my own law review turned it down as too controversial, so I had to look elsewhere. Chicago-Kent said they'd take it, but there was a policy against publishing students at other schools, so they needed to make it special in some way. Maybe a gun magazine would anoint me as legal advisor or something like that? My favorite gun mags were Reloader and Rifle, and they were published in Prescott, so I called them and their editor, Neal Knox, said sure. I guess I sent him a copy of the manuscript, and this is his return of it.
Here's the first page. Yes, the title was one that nearly 30 years later I'd use as the name of this blog. It's taken from the opening words of the Aeneid: "Of arms and the man I sing."
It's 1974. No legal academic is thinking seriously of the Second Amendment; there is just a vague belief that it has something to do with the National Guard.
The NRA has about 600,000 members, and has no ILA. One person, as I recall, handles all political and legal affairs. The Cincinnati revolt that would create the modern NRA lies in the future (it came in 1977, arising out of problems revealed in 1976). Harlon Carter is enjoying retirement in Green Valley AZ, where he can shoot rifles out his back window. Neal Knox is a magazine editor in Prescott. I'm a law student.
That was how it stood, 36 years ago. Glad that I lived to see Heller, and now McDonald.
UPDATE: I can't find where it's online anywhere, but may be able to get it scanned. Looking it over, it was pretty simple. I cite Elliot's Debates on the Ratification, Madison's Federalist 46 where he refers to Americans' "advantage of being armed" as security against tyranny, and Hamilton's Federalist 24, where he says that for the bulk of the militia the most than can be expected is that they have arms. Also the New Hampshire and Pennsylvania minority proposals for a federal bill of rights, with clearly individual right to arms, Also the fact that many early State constitutions had language similar to the 2A, which indicated a desire for protection against both State and Federal action, which must mean an individual right.
The use of "right of the people" in the First Amendment's freedom to assemble, and Fourth Amendment protections against search, and the 9th Amendment's distinction between "people" and States." And the use of "militia" as meaning the whole people, not the National Guard.
Permalink · Academic treatment · Comments (18)
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)...
Permalink · Heller aftermath · Comments (9)
Internal ATF news
It's getting lively over at CleanUpATF.org. A deputy director who gets his "nails done" on agency time, supervisors grabbing the fanciest seized vehicles for their own use, a supervisor who left his government business card at a cat house, a large portion of headquarters flying off to Vegas for the SHOT Show, etc.
Permalink · BATFE · Comments (5)
Strangeness in Citizens United case
I could see an argument (were this a State case) that a corporation isn't a "citizen" for privilege or immunities purposes, or a "person" for due process purposes. I could even see (altho I have problems with it) an argument that a corporation is entitled to lessened First Amendment protections. But from fn. 55 of Stevens' dissent:
In normal usage then, as now, the term “speech” referred to oral communications by individuals. See, e.g., [various citations]. Given that corporations were conceived of as artificial entities and do not have the technical capacity to “speak,” the burden of establishing that the Framers and ratifiers understood “the freedom of speech” to encompass corporate speech is, I believe, far heavier than the majority acknowledges.
But (1) this would mean that "symbolic speech," such as protests and flag-burning, have zero constitutional protection and (2) First Amendment cases involving corporations -- New York Times v. Sullivan (limits on defamation suits by public officials and figures) and NAACP v. Alabama (right of a controversial group to keep private its members names) were entirely wrong.
Permalink · General con law · Comments (11)
Good news re: Gary Tudesko expulsion
Good news. 17 year old Gary Tudesko had been expelled from Willows High School in California, after he went duck hunting, then on to class, and left his shotgun locked in a vehicle parked off campus. NRA got Chuck Michel's firm to serve as his advocate, and today the Glenn County Board of Education reversed the expulsion order.
Permalink · arms law victims · Comments (7)
Citizens United
The Court this morning handed down its ruling in Citizens United v. FEC.
A preliminary skim: the ban on corporate "electioneering" (corporate funds for an independent expenditure, mentioning a candidate, within 30-60 days of an election) is struck down. Austin v. Michigan and part of McConnell overruled. Overruling Austin probably means that special limits on corporate speech are gone, in broad sense. This greatly undercuts the need for political action committees.
Court upholds a few requirements -- corp. must disclose significant donors to an independent expenditure, and the ad must disclose who is behind it.
Permalink · General con law · Comments (1)
Balkanization goes to town on Chicago's brief
Right here. A few samples:
"In the city’s attempt to preserve its weapons ban, it proves too much, essentially urging the Supreme Court to find that protection of the Bill of Rights and other fundamental liberties against state infringement has no basis in constitutional text or history, and is instead achieved solely by judicial implication. To make matters worse, Chicago’s brief makes common cause with precedent that has been properly labeled by civil rights leaders as “among the most misdirected in the history of the Court” and celebrates a post-Civil War Court that looked the other way while Jim Crow perpetuated decades of discrimination and violent rights suppression."
"Chicago’s repeated deference to these decisions of the post-Civil War Court—beyond merely respecting them as precedent, the city’s brief calls them a “venerated” line of decisions—is disconcerting. As the NAACP points out, in the line of cases initiated by Slaughter-House, “the Court enunciated principles far broader than were necessary to decide the matters at hand, and it too readily struck down Congressional legislation designed to combat discrimination against African Americans after the Civil War, including both the Ku Klux Klan’s reign of terror and the establishment of a reconfigured caste system in the form of the Black Codes and Jim Crow.”"
Via Instapundit.
Permalink · Chicago gun case · Comments (2)
New article by Randy Barnett
"Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment."
It explores the many ways in which abolitionist legal thought influenced the 14th Amendment. The leadership of the 39th Congress were abolitionists to a man, and shared legal understandings that did not require explanation. We went into some of these in the Academics for the Second Amendment brief. For example, abolitionists had argued that Article IV's requirement that States turn over fugitive slaves was clear, but not legally enforceable. A State was bound by it, but no other entitle could sue to enforce the duty. To our eyes, members of the 39th Congress who argued that (1) another provision of Article IV, the privileges and immunities clause, bound the States to observe the Federal bill of rights but (2) we need a new amendment to ensure this, seem inconsistent. But to an abolitionist in 1866, there was nothing inconsistent at all.
Permalink · 14th Amendment · Comments (0)
Presentation on Chicago case
For any readers lucky enough to be at the SHOT Show in Vegas, here's an SAF press release:
SAF SCHEDULES SHOT SHOW PRESS
CONFERENCE ON CHICAGO GUN BAN CASE
The Second Amendment Foundation will hold a special press conference during the Las Vegas SHOT Show on Wednesday, January 20, 11:30 a.m. - 12:30 p.m. to provide an update on the current challenge to the Chicago handgun ban now before the U.S. Supreme Court. This case could decide whether the Second Amendment applies to the states and their subdivisions. Oral arguments are scheduled for March 2, 2010.
McDonald v. Chicago
Presented by the Second Amendment Foundation
Featuring:
Alan Gura, lead attorney for plaintiffs in McDonald v. Chicago, who also argued the Heller case, previewing key issues in McDonald;
Lawrence G. Keane, senior vice president and general counsel for the amicus National Shooting Sports Foundation,
and officers of the plaintiff Second Amendment Foundation, Illinois State Rifle Association and National Shooting Sports Foundation.
Wednesday, January 20, 2010
11:30 A.M. to 12:30 P.M.
Press Conference Room,
Venetian Level 2,
Bassano Rooms 2601-2605
Permalink · Chicago gun case · Comments (1)
lawsuit: national airgun pre-emption
Snowflakes in Hell has a post on it. Interesting -- I didn't even know Federal pre-emption of airgun regulations existed!
NRA and Brady Center finally have something to agree on
Article here:
"Obama got an "F" on every issue the Brady Campaign scored, according to its report card."
UPDATE: from New West:
"all of the above makes me more comfortable that I made the right bet when I said the NRA has won the war for the Second Amendment and Democrats have given up on the gun issue."
Permalink · antigun groups · Comments (5)
David Young takes on Chicago's supporting amici
Here he takes on the historians' amicus, with a promise of more to follow, and here he deals with the amici's treatment of State bills of rights.
Permalink · Chicago gun case · Comments (2)
5 point checklist for bank robbers
At Legal Blog Watch. It starts with punctuality. Don't arrive at the bank after its doors are locked.
Permalink · Dumb crooks · Comments (1)
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....
Permalink · Heller aftermath · Comments (15)
More on the NFA database errors
David Codrea goes into it here.
Essentially, it's a federal felony to have an unregistered NFA firearm (machine gun, short barreled rifle or shotgun, etc.). ATF is tasked with maintaining the registry of those. But for decades it's been known that the registry has major omissions. It's been around for 75 years, and thing got lost. The folks actually entering transfers of firearms into it haven't always been the best. Some records were thrown away rather than entered. Wrong serial numbers were entered. Etc..
I once represented a major NFA licensed dealer, Curtis Earl, who was raided on nonexistent grounds. ATF checked his (very large) inventory against their records, and began piling supposedly unregistered guns on the floor. There were dozens of guns in the pile before Curtis pulled out his own records, and showed the agents that he had the registration papers sent by their agency. All the guns were back onto his shelves.
Permalink · National Firearms Act · Comments (2)
Vlog of Second Amendment scholars conference
Right here, courtesy of Josh Blackman. It's video of a panel involving myself, Josh, Ilya Shapiro, and Prof. Adam Winkler.
My latest article
"Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent". As you might expect, I don't give the dissent a very good review.
Interpreting text
People hate lawyers because 99% of them give the rest of us a bad reputation. People hate law profs because some think and speak like this:
"Larry seems to argue that our own normative or empirical notions cannot play a role in fixing the semantic content of constitutional text: In his words, the belief that "semantic content is determined after the fact of communication on the basis of what we would like an utterance to have meant given our practical concerns" is a "fundamentally confused" way to think about interpretation (page 103). Larry includes three pages (pages 146-49) on the principle of charity, Quine, and Davidson in Semantic Originalism, but he treats charity as a way of reducing ambiguity through "construction" rather than as a form of "interpretation."
I think that I disagree with Larry on the role of charity, which I take to be built into interpretation just as deeply as any anthropological examination of dictionaries and rules of grammar."
Permalink · General con law · Comments (13)
CCW on campus proposal in Ariz.
Report here.
Permalink · CCW licensing · Comments (0)
WashPo on getting a handgun in DC
Story here.
"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...
Permalink · Heller aftermath · Comments (16)
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...
Permalink · Heller aftermath · Comments (3)
Comments sought on Clark County NV range
BLM has issued a second Environmental Assessment for the planned Clark County shooting range in southern Nevada; here's the EA. Comments are open until January 29. A quick skim of the EA leaves me with the question of why they had to do it. It sounds as if the statute was clear; give this specific land to the county for this purpose, at no cost. You don't need to analyze a direct and clear order, and several of the alternatives set out in the EA have an analysis that ends with "we can't do it anyway because it would violate the statute." The things that would be subject to analysis are whatever the federal money was spent for, but I don't see much analysis there.
That, and the land was conveyed years ago, and the money already spent... making environmental study a bit late....
Review of book on Justice Scalia
In the NY Times.
Hat tip to Sebastian of Snowflakes in Hell, who notes, "Posner’s knowledge of the scholarship that has surrounded the Second Amendment recently leaves much to be desired, and one wonders whether Harvie Wilkinson has read the Congressional briefs in Heller and McDonald, where a substantial majority of the “political branches” came down in favor of an individual rights view of the Second Amendment. Unless be “political branches” Judge Wilkinson means DC City Council, the City of New York and the City of Chicago?"
Egad!
The First Circuit has ruled that an LEO can respond to a carrier of a concealed arm by throwing down on him, detaining him even after he produced a permit to so carry, and then seize the firearm despite the permit. The court apparently reasons that even though the fellow has a CCW permit, there is no system in place for the officer to confirm that it is real, ergo it was reasonable to seize the firearm.
Permalink · CCW licensing · Comments (21)
A birthday
Just learned today is David Kopel's birthday. I suggest everyone swamp him with birthday greetings. His email is [email protected] .
UPDATE: Dunno why the email address was hidden at first. Perhaps because I had it enclosed within "<" brackets, which in email signal that this is the address, but in html signal a command.