The 4th Circuit Takes on the 2nd Amendment

The 4th Circuit Court of Appeals, the circuit responsible for hearing appeals from Federal District Courts in the Virginias, the Carolinas, and Maryland, just ruled on a case involving the regulation of semi-automatic assault weapons. The Court sided with the state of Maryland, upholding its ban on such weapons, “reasoning”:

that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

As Charles W. Cooke, writing in National Review, argues,

As Judge Traxler’s dissent pointedly establishes, the majority achieved this transformation by contriving “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.’” In effect, this “test” is designed to permit judges to determine that any weapon they might dislike is unprotected by the Second Amendment and can therefore be prohibited with impunity. Forget that Heller contains its own explicit tests. Forget the “common use” standard. Forget “dangerous and unusual.” There’s a new kid in town, and he’s coming for your rifles.

What counts as “most useful in military service” under this rubric? Well . . . everything, theoretically. “Under the majority’s analysis,” the dissenters contend, “a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service — undoubtedly a weapon of war — and therefore not protected by the Second Amendment.” Indeed, “the ‘most useful in military service’ rubric would remove nearly all firearms from Second Amendment protection as nearly all firearms can be useful in military service.” A standard semi-automatic handgun is plausibly “most useful in military service.” So, too, is a hunting rifle. So is a sword. Perhaps the Fourth Circuit would like to strip the constitutional protection from those weapons, too?

We’ll see if this opinion stands once Judge Gorsuch takes his seat on the Supreme Court. (One only has to remember Ted Kennedy haranguing Judge Bork to realize that, qualified as he is, Gorsuch’s path to that seat is fraught with more haranguing.)

Quote for the Day: Lincoln has Something to Say about Today

From Lincoln’s Address before the Young Men’s Lyceum of Springfield, Illinois, a speech well worth reading in full:

At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant to step the ocean and crush us at a blow? Never! All the armies of Europe, Asia, and Africa combined, with all the treasure of the earth (our own excepted) in their military chest, with a Bonaparte for a commander, could not by force take a drink from the Ohio or make a track on the Blue Ridge in a trial of a thousand years.

At what point, then, is the approach of danger to be expected? I answer, If it ever reach us it must spring up amongst us; it cannot come from abroad. If destruction be our lot we must ourselves be its author and finisher. As a nation of freemen we must live through all time, or die by suicide.

 

I’m a Fan, of Both Nino and Kagan

Scalia was possibly the best writer on the Supreme Court–ever. Kagan, almost his political polar opposite, will likewise rank as one of its best writers. These are generous, kind thoughts and a worthy example to emulate when we speak of someone we may otherwise disagree with.

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.

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.

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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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.)

Annie Hide Your Guns? Justice Scalia Has Died.

Betty Hutton, as Annie, couldn’t get a man with a gun. Some are worried that they won’t be able to even use their guns if President Obama gets to appoint a new justice to the Supreme Court now that Justice Antonin Scalia has died. AScalia2I don’t know if that’s a worry worth worrying about, even if  President Obama makes that appointment. Members of the court–left and right–are loathe to overrule themselves. Sure it can happen, and guns may be the issue that causes them to do so. But first, any Obama appointment has to get through the Senate and Senate Majority Leader Mitch McConnell already says that ain’t gonna happen. 

And so, I’ll just say that I’m going to miss Scalia. A lot. His humor. His writing. His intellect. No, he was not perfect as a man or as a justice, but he was good, very good on both counts. I was amazed at how the initial reports of his death stunned me.

So today, I choose not to get political. Instead, I want to praise the man. To that end and for your enjoyment and edification, I share this interview of him by Brian Lamb of C-SPAN:

Earlier Retirement?

An intriguing article on the aging judiciary on our federal courts, including our Supreme Court. I’m actually not sure where I stand on this issue. I’ve listened to many Supreme Court arguments and read my share of Supreme Court opinions over the last 40 years, and the justices impress me as pretty with it, even Justice Ginsberg, theSupreme_Court_US_2010 oldest on the court. She does seem slower in asking questions, but her questions are generally good.

That said, I do like the idea of other federal courts following the lead of the 9th Circuit and mandating regular mental and physical health exams. Though given that the 9th Circuit has historically been the most reversed of the Circuit Courts, such exams may not work as well as advertised. Or, maybe they do, and the Supreme Court should implement them.

Interesting times.

Interested, But Not Twitterpated–Yet

So when I began this blog post about this guy, I had to look up the spelling of the word “twitterpated” for the title to the post, which led to this:

And now that I’m done with that, let me return to writing about the guy I began with, Don Willett. He’s apparently on the short lists of some who are looking forward to the next Supreme Court nominee.

I don’t know much about this Justice of the Texas Supreme Court–yet–but he appears to have a sense of humor, so he’s got my attention.

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