Justice Breyer’s Abortion Reasoning as Applied to Gun Control

STOP_signSupreme Court Justice Stephen Breyer delivered the court’s majority opinion today in Whole Women’s Health v. Hellerstedt, a case in which the plaintiff challenged the “admitting-privileges” and “surgical-center” requirements that were part of legislation enacted by the Texas Legislature in 2013. Those requirements, the Legislature said, were to ensure safer practices by Texas abortion providers and prevent atrocities of the sort carried out by Dr. Kermit Gosnell, a physician convicted of first-degree murder in Pennsylvania because of his abominable–there’s no other word–abortion practices.

I won’t dwell on the Gosnell case. He’s now in jail, as he should be. What’s interesting to me is a bit of reasoning Justice Breyer used to answer the dissent in the Hellerstedt case. His discussion of Gosnell begins on page 27 of his opinion. After a brief, quite sanitary catalogue of Gosnell’s crimes, Bryer writes:

Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.

Now imagine, if you can, Breyer writing the following:

Omar Mateen’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.

I can’t imagine it. Even though the constitutional right to abortion had to be “found” in the Constitution, while the constitutional right to keep and bear arms is explicitly stated in the 2nd Amendment, the first right is in favor, the second is not. Therefore, though there is little if any evidence–and that, disputed–that additional background checks, secret terrorist watch lists, and assault weapons bans would have prevented recent mass shootings or will prevent future ones, those proposed “extra layer[s] of regulation” will withstand judicial scrutiny, if Justice Breyer has anything to say about it. At least that’s how I’ll be betting.

While we’re at it, let me share another item from the news. The other day I was listening to the Diane Rehm Show as I drove south on I-15. They were discussing gun control in light of the recent tragedy in Orlando. The host read the following e-mail from a listener in Texas

We have another email also from Brandy in Texas, who writes, many shooters, including the Orlando shooter, had domestic violence in their past, and most victims of mass shootings are women and children shot in domestic violence incidents. Can we pass a federal law to prevent domestic violence offenders from getting or keeping guns?

I almost wrecked. The e-mail captured what for me is the most frustrating thing about the gun control debate: Those in favor know little or nothing about existing gun control laws. Fortunately, Adam Winkler, a law professor at UCLA who is in favor of some new gun control measures, took advantage of this particular teaching moment:

Yes, we do have federal laws already on the books to stop domestic abusers from possessing firearms. You can, if you are subject to domestic violence restraining order, under federal law, then you are prohibited from possessing a firearm. You can also have your firearm taken away from you on a temporary basis after what’s known as an ex parte hearing. That’s a hearing in which the person who’s effected does not get a say or does not have representation.

And so, we do have laws in effect. I believe that in the current situation with regards to Orlando, and I could be wrong about the facts, but my understanding is is that he was never charged and convicted with any crime of domestic violence.

And was not subject to any kind of domestic violence restraining order. So, it might not have caught him, but it is right to point out that when there are certain kinds of violence, that if we see evidence of, we should take the guns away from that person because they’re likely to engage in more serious forms of violence with that firearm.

Winkler is correct. Section 922 (d)(8)-(9) and (g)(8)-(9) does exactly what Winkler says: People who have been charged with domestic violence, including harassment, stalking, threatening, and the like, AND who have at least had an opportunity for a hearing AND who, as a result, either are subject to a court order related to that behavior or have been convicted CANNOT possess firearms.

Of course, that brings us full circle. According to Breyer–and Breyer’s correct in this–“Determined wrongdoers, already ignoring existing statutes and safety measures [such as laws against stalking and domestic violence], are unlikely to be convinced to adopt safe practices by [Section 922 or by] a new overlay of [gun control] regulations.” And that’s the problem gun control can’t solve.

Jefferson Owned a 22-Shot Rifle

Things I learned while on Twitter: Thomas Jefferson owned a 22-shot rifle, a Girandoni air rifle. You can read all about these air rifles here. Pretty nifty rifle.

Here’s a video explaining how the rifle works.

 

Here’s another video (not as well done), this time showing the rifle in action.

The implications of Jefferson owning such a firearm should be obvious.

One More Reason to Not Live in California

The 9th Circuit rules against concealed carry in California. The court said there was no constitutional right to concealed carry. I’m guessing we haven’t heard the last of this case. And for what it’s worth, the 9th Circuit hasn’t fared too well in the Supreme Court:

The Justices [of the Supreme Court] have long had a seemingly contentious relationship with the Ninth Circuit, which covers most of the western United States and Hawaii and Alaska. Far more cases come to the Court from the Ninth Circuit than any other court, and — not surprisingly — Ninth Circuit rulings make up a sizeable portion of the docket of argued and decided cases – 75 cases, or 25.7% for the last four Terms including the current session.  During that period, the Court has reversed or vacated and sent back 79.5% of the Ninth Circuit decisions it has reviewed.

I understand there’s an election going on that might impact the ultimate outcome of this case.

41 F: Fingerprints and Photographs Quick as a Wink – Somebody’s Taking Care of Their Customers

WqrSS-660x657ell, somebody’s on the ball. The people at Silencershop.com just announced some new technology they developed that will make complying with ATF 41F much easier for the responsible persons of trusts and entities to submit their fingerprints and photographs.

Sometime before July 13th, when ’41F’ finally takes effect, Silencer Shop will ship out 300 fingerprint-scanning kiosks to select Silencer Shop ‘Powered By’ dealers across the country. Then, after July 13th, when a customer purchases a suppressor from the Silencer Shop website, they select their local dealer of choice, submit payment for both the suppressor(s) and NFA transfer tax(es) and if necessary, uploads their trust or LLC documents. In return, Silencer Shop will email each customer a unique QR code that they can take to those select Powered By dealers to scan and then follow the instructions to use the kiosk to capture an FBI-approved set of fingerprints. (Certain restrictions apply and will be outlined prior to launch.)

The customer’s prints are then securely transmitted to Silencer Shop’s headquarters and stored offline. All of your information is then submitted along with the BATFE Form 4 to initiate the transfer application process. The result is that customers and if needed, their ‘responsible persons’ (we’ll get to that part) will only have to be fingerprinted once no matter how many silencers they buy over the course of months and years to come. And since individuals no longer require a Chief Law Enforcement Officer (CLEO) sign-off, both individuals and entities will also be able to utilize the kiosk system.

The photograph requirement will be addressed by a custom Silencer Shop App for iOS and Android that will take passport-sized images that will also be transmitted to Silencer Shop HQ. Per the BATFE rules, every two years the photographs will be need to be retaken. Customers will simply use the Silencer Shop App to grab another selfie.

Sounds cool to me. Free enterprise at its best–in spite of the obstacles.

Required Reading, Then and Now

Jefferson LCBTwo things interest me about the two quotes below: First, that original material was written in 1764–in Italy–by Cesare Beccaria in his treatise On Crimes and Punishments. Yes, I know. It sounds like something right out of an NRA press release in response to yet another move by the [name your president] to implement by executive order more “common sense” restrictions on firearms. But no, Beccaria was a political philosopher of some renown, whose work many of the Founders thought important enough to use as source material for the founding documents of this nation. Jefferson, for one, copied the passage below into his Legal Commonplace Book, a sort of journal the author of the Declaration of Independence used to keep track of important ideas–I assume his and of others. Jefferson entered the Beccaria quote into his journal in the original Italian. The first quote below is the English translation of Italian, which appeared in in 1809 and which Jefferson owned.

That brings me to the second interesting thing: The two quotes are essentially the same quote from Beccaria, the first an 1809 translation, the second a 1963 translation. You can find the second all over the Internet. (I originally found it in a book I’m reading, That Every Man Be Armed by Stephen P. Holbrook, an excellent history of the Second Amendment, going all the way back to the Greeks and Romans.)

So you can easily notice the differences, I’ve color keyed the corresponding words in each translation. (And yes, I realize that the second translation has an ellipsis.) I prefer the second, newer, and I’d say more elegant translation. Whatever your preference, Becarria offers up some good food for thought, even today.

“A principal source of errors and injustice are false ideas of utility. For example: that legislator has false ideas of utility who considers particular more than general conveniencies, who had rather command the sentiments of mankind than excite them, who dares say to reason, ‘Be thou a slave;’ who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it.

The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons.”

Though you can find the following translation of the quote by Paolucci in a number of places, I found it here.

False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes….Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

For those who would prefer practicing their Italian, here’s the quote in Italian, as it appeared in Jefferson’s Legal Commonplace Book:

“Falsa idea di utilità è quella, che sacrifica mille vantaggi reali, per un inconveniente o immaginario, o di poca conseguenza, che toglierebbe agli uomini il fuoco perchè incendia, e l’acqua perchè annega; che non ripara ai mali, che col distruggere. Le leggi, che proibiscono di portar le armi, sono leggi di tal natura; esse non disarmano che i non inclinati, nè determinati ai delitti, mentre coloro che hanno il coraggio di poter violare le leggi più sacre della umanità è le più importanti del codice, come rispetteranno le minori, e le puramente arbitrarie? Queste peggiorano la condizione degli assaliti migliorando quella degli assalitori, non iscemano gli omicidi, ma gli accrescono, perchè è maggiore la confidenza nell’assalire i disarmati, che gli armati. Queste si chiaman leggi, non preventrici, ma paurose dei delitti, che nascono dalla tumultuosa impressione di alcuni fatti particolari, non dalla ragionata meditazione degl’inconvenienti, ed avvantaggi di un decreto universale.”

The Federal Circuit Courts of Appeals and 2nd Amendment Gun Rights

SAMSUNG

David Koppel’s got it if you want it: a complete review of federal circuit court jurisprudence on the 2nd Amendment post Heller and McDonald. Here’s the abstract:

“The Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago left lower courts with the responsibility to flesh out many aspects of Second Amendment legal doctrine. This Article explains how the federal Circuit Courts of Appeal have done so. The Article provides a comprehensive synthesis and analysis of the Circuit decisions, covering everything from ammunition to zoning.

“Most Circuits use the Two-Step Test propounded by U.S. v. Marzzarella (3d. Cir.). Step One is to determine whether a challenged law implicates Second Amendment rights. If the answer to Step One is “yes”, Step Two is to apply some form of heightened scrutiny. In both steps, the burden of proof is on the government.

“Step Two can involve intermediate scrutiny, “not quite strict scrutiny,” strict scrutiny, or categorical invalidation, depending on various factors. All forms of heightened scrutiny involve consideration of alternatives which might be less burdensome to the right; the stringency of that consideration increases when higher forms of scrutiny are employed.

“Not every Circuit case perfectly fits with the emerging doctrinal norms. The Second Circuit, for example, has been a consistent outlier in manipulating standards of review in order to treat the Second Amendment as an inferior, second-class right – contrary to the mandate of McDonald v. Chicago. Even so, analysis of the nearly 150 Circuit Court Second Amendment cases since Heller reveals a mostly consistent methodology.”

You can read a bit more (without having to read the entire 118 page article) at The Voloch Conspiracy.
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Concealed Carry in Utah and Wyoming

So I have a friend who lives in Utah and wants a concealed carry permit. Unfortunately, he still drives on a Wyoming drivers license and doesn’t want to give it up. And because of this, he thought he couldn’t get a concealed carry permit, which is a reasonable assumption if you look at the FAQs on Utah’s Department of Public Safety website, which details what documents must accompany an application for a concealed carry permit:

Utah_DL_2016-04-11_0955

 

Given this state of affairs, my friend decided to try to get a permit in Wyoming, but there he ran into the residency requirement. Thus, unless he surrendered his Wyoming driver’ license or until he moved back to Wyoming, he couldn’t have a concealed carry permit. Or so he thought.

I was explaining this conundrum to my gun-wise son the other day, and he replied, “people from out of state get Utah permits all the time. It’s one of the most reciprocated CCPs in the country.”

At the time, I had only read Wyoming’s law, and I thought it was pretty clear that you needed to be a resident to get a permit there, and I assumed it was the same in Utah, but I decided to check the law in both states to see if I had missed something. Turns out I had.

Wyoming’s concealed carry law does require applicants to be a resident, but the law is not so clear as I had thought. It says, in the relevant part, that “The attorney general through the division shall issue a permit to any person who [among other things]:

Is a resident of the United States and has been a resident of Wyoming for not less than six (6) months prior to filing the application. The Wyoming residency requirements of this paragraph do not apply to any person who holds a valid permit authorizing him to carry a concealed firearm authorized and issued by a governmental agency or entity in another state that recognizes Wyoming permits and is a valid statewide permit; (WS §6-8-104 (b)(i)) (emphasis added)

To me, the bolded part appears to say that a non-resident with a valid permit issued in another state can apply for a Wyoming permit. Apparently, I’m wrong, at least according to the people at the Wyoming Division of Criminal Investigation. According to them, the bolded part means that if someone moves to Wyoming to become a resident and already has a valid permit from their former state, they don’t have to wait six months to apply for a Wyoming permit. Bottom line: you need to be a resident of Wyoming to get a Wyoming permit. My friend was out of luck.

But Utah proved to be a surprise. Though the Department of Public Safety’s website does in fact say applicants need to provide a photocopy of their driver’s license, that is incorrect. In fact, if you click the “download application” link at the bottom of the FAQ, you’ll discover that the actual application says you can provide either a copy of your driver’s license OR a copy of your state-issued ID with your application for a concealed carry permit:

Utah_CCA_2016-04-11_1025

For what it’s worth, I confirmed what I’ve written above with the relevant agencies in both Wyoming and Utah.

My friend was happy to hear the news.

Oh, and in case you’re wondering, my son was correct. Utah will issue permits to out-of-state persons for an additional fee.

 

 

Concealed Carry Reciprocity

In case you’re not familiar with it, the NRA’s website contains a treasure trove of information on concealed carry and reciprocity among states. Here’s what the reciprocity map looks like for those holding Wyoming permits:

Wyo_Reciprocity_2016-04-10_2309

 

Here’s the same map for Utah:

Utah_Reciprocity_2016-04-10_2312

 

ATF 41 F — The Official Document

I don’t think I ever posted a link to the official (or at least, the official looking) ATF 41 F as it appeared in the Federal Register. Here it is.

To refresh your memory, ATF 41F affects the firearms trusts (aka gun trusts and NFA trusts). It goes into effect on July 13, 2016. Until then, firearms trusts are the most effective and least intrusive way for you to purchase NFA items, including suppressors or silencers–in my humble opinion. After July 13, 2016, I think firearms trusts remain the best way to purchase those items, for most–but not all–the same reasons. Again, in my humble opinion.

No, the CLEO’s signature on individual applications will no longer be required, and

Yes, so-called “responsible persons” will be required to provide fingerprints and photographs, BUT

-Firearms trusts set up a structure that protects against unwise and often uninformed use/misuse of NFA firearms while you’re alive, misuse that can result in severe penalties and fines, and

-Firearms trusts establish a framework for sharing NFA items while you’re alive, a framework not available to people who purchase NFA items in their capacity as individuals, and

-Firearms trusts provide a mechanism for distributing your prized firearms to your beneficiaries when you die, again without running afoul of the law.

No, for my money, a well-drafted firearms trust remains the best way to purchase NFA firearms, now and after July 13, 2016.

A Stunning (Gun) Win for 2nd Amendment Rights

The headline in the March 22, 2016, Washington Post article says it all: “Unanimous pro-Second-Amendment stun gun decision from the Supreme Court.” Unanimous as in every justice apparently agreed with the following sentiment expressed in the per curiam opinion by the nation’s highest court.

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625.

For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered. (emphasis added)

I bolded some key words in the opinion because they are so emphatic about the meaning of the Heller decision. Who knows what the future holds–now that Justice Scalia has died–but this opinion should be comforting to those concerned about their 2nd Amendment rights. (By the way, do read the linked-to WashPo article. Eugene Voloch is an important voice on the Constitution.)

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