SCOTUS takes new gun case ... is this a Heller tea leaf?
It seems the Supreme Court has decided to take another case relating to gun rights. It's an interesting choice. The underlying question is whether someone convicted of a misdemeanor battery charge -- basically punching someone -- is allowed to possess firearms.
This normally wouldn't be a bar to gun ownership, since it's a misdemeanor; federal law bars gun possession for those convicted of felonies. However, there's another section of the law, termed the Lautenberg amendment, which bars gun possession for those convicted of domestic violence misdemeanors. Although the law under which the defendent was convicted was not specific to domestic violence, the victim was his then-wife.
Later, the police arrested him in a domestic-violence incident and found that he had firearms, which triggered the charge for firearms possession as a prohibited person.
The question thus is, does the nature of the relationship make the conviction a domestic violence crime, or does the law have to be specifically written to include the domestic-violence criteria? The West Virginia court seems to have arrived at a different answer than other courts, hence the appeal to the Supreme Court (by the Justice Department).
In light of Heller, I have got to believe that the DoJ specifically picked this case to appeal in an effort to ensure that they have a "favorable" case before the Supreme Court before gun-rights advocates have the chance to take another bite at the Emerson apple. (Emerson was a 5th-circuit domestic violence case that famously found for an individual 2nd Amendment right but nonetheless upheld the domestic-violence statute as "minimally" passing due-process muster).
What attributes of the domestic violence case make it good for the anti-gun side? Well, let's see. It's a federal law, so they can avoid the incorporation question and any interference from state Constitutions. They got lucky in getting a result here that creates a circuit split with an unfavorable plaintiff.
If I had to guess, I'd say that the four votes necessary to grant cert in this case came from the "liberal wing" of the court, seeking to follow the Heller ruling with another case that will limit any damage Heller does to gun control laws.
This is not the case we want leading the charge after Heller.
The only bright spot is that the question presented to the Supreme Court doesn't address the 2nd Amendment directly, but I rather suspect it will be addressed in the opinion nonetheless.
Alan Gura has an article in Jurist about his arguments...
... and he basically explains why he took the positions he did before the court, even if they were bound to disappoint some. It's good reading to understand the thought process behind the arguments (especially if you have a gripe about things said or not said) and is still short enough to be a quick read.
National security is a tough business. How do we preserve our ability to fight our nation's enemies and disrupt their planned attacks while also preserving the rights and freedoms that we hold dear? It's a tough balancing act. One piece of wisdom from our founding fathers, though, is the concept of checks and balances; the idea that different branches of government should oversee each other, rather than each policing itself. The results of the Patriot Act, enacted shortly after 9-11, demonstrate why this is a good idea.
First, you have to understand the normal procedure for obtaining a search warrant, which is generally required before going into someone's home to collect evidence, obtaining records of their business dealings from third parties, or placing a wiretap on their telephone line. The police normally do some investigation first, in ways that do not require intrusion on someone's rights, in order to get some idea who they can reasonably suspect committed the crime. If they don't get enough for a conviction from this, they try to figure out what evidence might exist that they don't have, and where they can find it.
They fill out a form indicating where they want to search, including their supporting evidence, witness statements, and what they expect to find and seize in the search, then submit that form to a judge. The judge looks over their information and makes sure that they have enough evidence to meet "probable cause"; if they do, he signs the warrant and the police go collect the evidence.
In practice, judges rarely say no, but the simple act of preparing their evidence for review by a mostly-independent third party means that it doesn't get done casually; and the defendent in any resulting case will have a record of what the police thought they had at the time of the search and can challenge the warrant if it does not meet the probable cause standard.
The Patriot Act changed the rules, at least for terrorism investigations. The FBI are now allowed to write a "National Security Letter" when requesting business records. The letter does not go before a judge. It imposes a gag rule upon the recipient, preventing them from informing anyone of the request (which also has the practical effect of preventing them from obtaining legal assistance). It can request virtually any information, up to and including a list of which library books you have read or websites you have visited. There is no requirement to list the evidence used to generate the letter, making the request difficult to challenge in court later.
The basic idea is to treat terrorists like spies -- both are agents of foreign powers rather than individuals.
Now, we're learning that the FBI has systematically abused that process:
In his first report on NSLs, released in March 2007, Inspector General
Glenn Fine inspected a few hundred NSLs issued by the FBI between 2003
and 2005 and found dozens that had been issued "improperly." Given that
a total of 143,000 NSLs were issued during that period, the results
suggested that hundreds, and probably thousands, of improper NSLs were
issued from 2003 to 2005.
That's a lot of terrorists. But are they really all terrorists?
For example, in last year's report, the inspector general recommended
that the FBI implement a system to tag information derived from
national security letters so they could be distinguished from data
gathered using ordinary investigative activities. That would assist FBI
agents in ensuring that information ostensibly obtained for
anti-terrorism or counter-espionage purposes is not used for ordinary
criminal investigations. But an FBI working group concluded that such
tagging would be burdensome and would provide few privacy benefits.
Last week's report disagreed, urging the FBI to "give additional
consideration" to the issue.
This is important: the FBI can issue broad NSLs to obtain vast amounts of information, which they DO NOT TAG in any way to indicate the legal process they used to collect it. They can then use that information to prosecute ordinary people for ordinary crimes -- violating their Constitutional rights.
These results suggest that procedural reforms within the FBI will never
be sufficient to ensure that the law is followed. FBI personnel will
inevitably be biased in favor of their fellow FBI officials. The
creation of the FBI's Office of Integrity and Compliance is especially
ironic because the federal government already has
an "integrity and compliance" unit. It's called the judicial branch.
Rather than trying to create a separate system of checks and balances
within the FBI, the feds should take advantage of the system of checks
and balances we already have. Administrative reforms are no substitute
for genuine judicial oversight. Regardless of the number of layers of
review, the sophistication of the FBI's tracking system, or the amount
of time its personnel spend in training, there will always be a
temptation to cut corners unless the issuance of NSLs is subject to
scrutiny from outside the FBI hierarchy.
We need those checks and balances back in place, especially when the FBI is trying to cover up their mistakes. No one can be trusted to police themselves when the consequence is the loss of privacy rights for everyone. The incentive structure is simply wrong.
I seem to remember we had a revolution over this kind of bullshit. I'd quote the disturbing bits, but the whole article is disturbing. Thank god I don't live there. Used to be, someone who taunted and abused someone else for no real reason until the abuse provoked a violent response was called a bully. Now, it seems Seattle calls them ACT officers.
I do believe Bob Ricker's target market for his little false-flag operation "American Hunters and Shooters Association" consists of those gun owners who think they are the "elite" of society and feel that the "little people" below them either shouldn't have guns or, at worst, should be heavily restricted to make sure they can only have the guns they can handle safely. Anyone who thinks of the average gun owner as an ignorant idiot prone to shooting his foot or his kid on a regular basis is probably already a member.
It's not the "educated, sophisticated, and straight-thinking" demographic, despite his protests. It's the "arrogant prick" demographic.
Alan Gura has responded to some of his critics on subguns.com, who were concerned about having machine guns thrown under the bus to save the individual right for other firearms.
Thanks for your support.
The solution to 922(o) will have to be political in the end. The fact is,
outside the gun community, the concept of privately owned machine guns is
intolerable to American society and 100% of all federal judges. If I had
suggested in any way -- including, by being evasive and indirect and fudging
the answer -- that machine guns are the next case and this is the path to
dumping 922(o) -- I'd have instantly lost all 9 justices. Even Scalia.
There wasn't any question of that, at all, going in, and it was confirmed in
unmistakable fashion when I stood there a few feet from the justices and
heard and saw how they related to machine guns. It was not just my opinion,
but one uniformly held by ALL the attorneys with whom we bounced ideas off,
some of them exceedingly bright people. Ditto for the people who wanted me
to declare an absolute right, like I'm there to waive some sort of GOA
bumper sticker. That's a good way to lose, too, and look like a moron in
I didn't make the last 219 years of constitutional law and I am not
responsible for the way that people out there -- and on the court-- feel
about machine guns. Some people in our gun rights community have very....
interesting.... ways of looking at the constitution and the federal courts.
I don't need to pass judgment on it other than to say, it's not the reality
in which we practice law. When we started this over five years ago, the
collective rights theory was the controlling law in 47 out of 50 states.
Hopefully, on next year's MBE, aspiring lawyers will have to bubble in the
individual rights answer to pass the test. I know you and many others out
there can appreciate that difference and I thank you for it, even if we
can't get EVERYTHING that EVERYONE wants. Honestly some people just want to
stay angry. I'm glad you're not among them.
You want to change 922(o)? Take a new person shooting. Work for "climate
Very good points. I would just add to that, we have to have an individual right to possess basic firearms, period, before we can address the question of whether we have an individual right to possess scary firearms.
... of the gun industry advertising to criminals. The only source I know of for this persistent anti-gun meme is the ad run by a manufacturer advertising his gun's "fingerprint-proof" coating. In actuality, the coating prevented the residue of skin oils from rusting the finish of the gun if you forget to clean the gun after handling it. In anti-gun mythology, of course, it was the perfect murder weapon. In terms of actual evidence, I believe I've seen the ad, but don't have a copy of it.
If pressed they would probably also cite ads for "concealable firearms"; never mind that concealed carry is legal, with appropriate licensing, in nearly all states.
Another similar myth is the idea that gun manufacturers deliberately flood the market with guns "just outside" of gun control areas to facilitate gun smuggling and artificially lower the price of guns. The real answer is obvious: when stores order guns to sell and have their FFL in proper order, manufacturers provide them with guns to sell.
But since when has a lack of evidence for anything stopped the other side?
UPDATE: Oh, and I forget two other classic examples.
Gun bigots are often fond of pointing to "plastic guns that won't show up on metal detectors" which obviously MUST be intended for criminal use. Nevermind that they don't exist. (Glocks, which pioneered the polymer-frame handgun, have more than enough metal parts to show up on metal detectors). I suppose if someone wanted to build a plastic handgun that doesn't show up on metal detectors, and could manage to produce one strong enough to do so safely, they would be marketing to criminals, since I believe laws have been passing banning this thing that doesn't exist. But don't quote me on that, I don't recall any details.
The other favorite target is "armor piercing ammunition". Insofar as it exists, and doesn't mean simply "using more gun than the armor was designed to stop", I believe ammunition that makes any claim to piercing armor is marketed to military and law enforcement rather than criminals. I have no idea whether any of it works when fired from a handgun rather than a rifle.
The Black Bear Blog is disappointed with Gura's argument..
... because they feel he was conceding too much. Lots of people have that viewpoint. I'm not as concerned about it as most, because we have to keep in mind the question that's being ruled on in the case. This is a case about an absolute ban on functional firearms. The only goal in this case is to get the Supreme Court to strike down DC's gun laws, and in doing so, say that the 2nd Amendment protects an individual right which ordinary citizens can invoke against complete bans on functional firearms or certain classes of firearms.
That's a very, very, very big step for the court to take. Remember how difficult it has been to get any court to admit to a 2nd Amendment right in any situation at all. If we push for too much here, we might lose the whole thing.
Our strategy is simple:
Force the Supreme Court to admit that the 2nd Amendment protects an individual right from a complete ban on firearms under Federal law.
Force the Supreme Court, in another case, that the 2nd Amendment protects an individual right from a complete ban on firearms under state law (a doctrine known as incorporation).
Force state or federal courts to overthrow irrational bans (assault weapon bans).
Force state or federal courts to overthrow "may-issue" licensing systems for gun possession.
Force state or federal courts to overthrow "no-issue" concealed-carry states (the right to bear arms), even if they choose to have a licensing system.
Only then do we consider trying to overturn the 1986 machine gun "ban" (on new manufacture), because machine guns are scary and we need the precedents lined up to make the conclusion inevitable. Even at this stage we leave the NFA licensing system in place.
Once we have a substantial period of time without serious "machine gun crime", we can consider turning the NFA system into "shall issue".
Basically, what we need to do here is establish that licensing and regulation are acceptable, but complete bans or licensing systems that effectively create complete bans are not. If we push for too much, the justices will balk and uphold DC's law for fear of the consequences of their precedent, and we'll be far worse off.
The best outcome for our side is actually not a "strict scrutiny" ruling that would immediately overturn everything we object to. Such a ruling would cause all kinds of chaos and disruption. We need to take it one step at a time and demonstrate to everyone that the world does not end at each step.
That said, some of the questions directed at Gura could have been handled better -- from a comfortable armchair with all the time in the world and no pressure. As far as I'm concerned he did a great job, better by far than I could have done.
There's a two-part series (Part 1, Part 2) on the Olofson case (in which an AR-15 rifle malfunctioned and the ATF charged and convicted him for transferring a machinegun). This is exactly the sort of case that demonstrates that the BATFE (as a whole, if not every individual agent) is treating every gun owner like a criminal... rather than as someone exercising a protected constitutional right. The legal gun owning community is subject to persecution (not to mention prosecution) from a government agency whose unwritten laws are throwing honest citizens into prison for years.
Lott's commentary is predictable -- he's disappointed that there wasn't very much emphasis on statistical and empirical arguments. The problem with this is that statistics are hard to get right, especially for non-experts, and the arguments aren't conclusively on either side. We can convincingly make the case that gun control doesn't reduce crime, but we can't yet prove (though we can provide some evidence) that pro-gun policies do reduce crime.
Shepherd's commentary was insightful, but too long to summarize. There's one particularly good moment when he's talking about an interview he witnessed between a local reporter and Heller (the plaintiff). The reporter saw the DC Mayor, Adrian Fenty, walking out of the court building and asked a quick followup like "But hasn't the mayor done a lot to reduce crime in the city?" Heller's response was to point out that the mayor was walking out of the Supreme Court building surrounded by 8 bodyguards, his own private army.... and yet Heller, who is allowed to carry a handgun to defend the lives of politicians like Fenty (Heller is a security guard for some government body), is not allowed to keep a handgun in his own home to protect himself.
I thought that was a very well done comment when I heard it on the CSPAN feed, but knowing what was actually in the scene visually makes it that much more powerful.
Countertop thinks that machine guns are back on the table.
I hope he's right. Listening to the arguments, I won't say he's wrong. I think the DC handgun ban will lose big, and yes, there might even be some room for challenging the machine gun ban -- but that's another case.
There's just this really anxiety-producing proposition on what would we
have if we relaxed these laws," said D.C. Council Chairman Vincent C.
Gray, a Democrat. "We'd have to evaluate the court's decision, then
look at what revisions in our own statutes would allow us to have the
maximum restrictions on guns in the District."
The Supreme Court has heard arguments about the meaning of the Second Amendment and the Districts of Columbia's ban on handguns. A
majority appears to support the view that the amendment protects an
individual's right to own guns, rather than somehow linking right to
service in a state militia.
That's Delinger (I think) describing the effect the 2nd Amendment has on the authority of Congress to pass gun control laws today. No effect whatsoever. Good followups by, I think, Roberts.
From the sound of it, the forces of evil are falling back to the collective rights interpretation -- that the 2nd Amendment protected the right of the states to arm the militia. Delinger is really taking a beating from the justices.
Delinger: "real potential for disruption"...
Kennedy is very interested in the 1689 english bill of rights, which did include a right to arms. He forces Delinger to say that the 2nd Amendment is addressing a different, collective right that was much more limited than the english bill of rights. Now, would people who had within living memory overthrown the english government in a popular revolution then proceed to enshrine in their Constitution fewer rights than they had just fought to defend?
Justice: "What is reasonable about a total ban on possession?" Delinger: lots of stuttering Justice: "So it's all right to ban books if you allow newspapers?"
I think that's Roberts again. Damn, he's good.
Ginsburg asks about machine guns. She's very weak but she's trying to feed Delinger points he can use to mislead. It's not working well in persuading people on this topic but it doesn't bode well for later challenges on machine guns.
The "in common use" argument comes up, too.
Someone, not Roberts, is up on the "recreational use exception" and what is implies vis-a-vis the purported self-defense exception. They keep saying self-defense is OK but the law does NOT say that, and people have been charged in self-defense situations.
Somebody was pushing hard to get a statement from Delinger concerning why their ban was "reasonable", and failed.
Switching to Clement.
Oh, nice. He's not defending plastic guns, but he is defending machine guns, at least under Miller. (Not at issue in this case directly, though). I suspect he'll use that to argue for other than strict scrutiny -- ie, if strict scrutiny, machine guns are allowed.
Some discussion on "keep and bear" -- are they two rights? Yes.
Does "bear arms" have an exclusively military context?
Some discussion of the english bill of rights and parliamentary supremacy. But didn't our Revolution give us the chance to expand those freedoms, so that our version of the english parliament would be likewise unable to infringe those rights?
Ginsburg: What is the difference between strict scrutiny and intermediate scrutiny in terms of the results?
Roberts (?): arguing for a narrow ruling rather than a broad one.
Scalia asks which federal gun control laws would be at risk from a broad ruling. Machineguns? armor-piercing bullets?
Clement invokes machine guns.
Roberts reminds him that the law being challenged bans handguns, not machine guns.
I wasn't very impressed by Clements on the audio. He did OK but the Justices clearly had a much stronger command of the relevant law and history than he did.
One of the justices is asking us to assume that the militia clause "informs" but does not dictate, and that the intermediate standard applies... under those assumptions, plus a lot of crime statistics, why isn't a handgun ban reasonable and proportionate response?
"A handgun ban serves to weaken America's military preparedness... handguns are military weapons."
The justice is pushing the crime issue, trying to argue that handguns are not really military weapons.
One of the justices is trying for the "only militia members can own firearms" point.
We have some very effective advocates among the justices.
Breyer, keeps pressing for a handgun ban as being a "reasonable restriction" or perhaps even passing a stricter standard. He's pushing hard for it but I don't think he can manage to convince anyone, even though he clearly believes it.
Gura is not defending machine guns or "plastic undetectable handguns" (which don't exist). I'd rather he defended machine guns but tactically that's not wise.
Gura: Military aspects of Miller are not useful for determining types of allowable arms...
Breyer brings up Boston fire ordinances.
Gura: "firearms" at the time did not include pistols -- I think that's a mistake.
Justice: Why aren't trigger lock provisions analogous to gunpowder restrictions?
Gura: safe storage provisions would pass strict scrutiny, this doesn't because there is no self-defense exception. Self-defense was the heart of the 2nd Amendment.
Breyer?: questions self-defense in light of proposals that were not accepted.
Ginsburg: What about licensing?
Gura: objective licensing standards are OK, such as training requirements, age limits.
One of the justices asks point-blank whether machine guns can be prohibited from interstate commerce. Gura: "Yes."
Delinger: "There are some versions of the trigger lock that allows the gun to be loaded while the lock is on." I'm not aware of ANY trigger lock that recommends that or calls it safe; every one I've seen says you have to unload the gun while locked and doing otherwise is DANGEROUS.
Delinger: rants about concealable handguns that can be taken into the classroom, the metro... trying to push the local legislation argument.
But do District residents have fewer rights than other citizens?
OK, the arguments are over.
To sum up:
Delinger was poorly received and did not do a good job arguing his case, which was weak to begin with.
Clement did OK, not great.
Gura did very well overall, but not without the occasional stumble.
Justice Kennedy was very active in today's argument. He asked the
second question, advancing a theme to which he repeatedly returned:
that the first clause of the Second Amendment merely was a
"reaffirmation" of the Constitution's militia clauses, and suggested
that the first clause did not limit the distinct right to keep and bear
arms (which he referred to as the "operative clause"), which was
unconnected -- he used the phrase "quite independent" -- from militia
service. Kennedy expressed the view that the Second Amendment was a
"supplement to" the militia clauses. Kennedy also returned several
times to the 1689 English Bill of Rights as the model for the Second
Amendment. Kennedy also indicated that he does not put a lot of stake
in the Court's opinion in Miller, saying that it ends abruptly and does not fully elaborate the interests encompassed by the Amendment.
This is a good sign, and I agree with Kennedy that Miller opinion does not fully elaborate the interests encompassed by the 2nd Amendment? How could it, when only one side of the argument was heard?
I think Kennedy's comments can be taken as foreshadowing a lengthy opinion that will attempt to fully elaborate those interests, as well as a positive sign about which way the decision will likely go.
The District of Columbia, which has one of the nation?s highest crime
rates, banned private ownership of handguns. Rifles and shotguns were
permitted, if kept disassembled or under an easily removed trigger
lock. It is a reasonable law, far from the ban that some
anti-gun-control advocates depict.
I find that really amusing. First they describe the city's ban on handguns, and then claim that those laws are "far from a ban" because rifles and shotguns are allowed... so long as they don't work.
Speaking of the lower court's striking down the law:
The decision broke with the great majority of federal courts that have
examined the issue, including the Supreme Court in 1939. Those courts
have held that the constitutional right to bear arms is tied to service
in a militia, and is not an individual right.
Will they ever learn to read US v Miller correctly?
The appeals court made two mistakes. First, it inflated the Second
Amendment into a sweeping right to own guns, virtually without
restriction or regulation. Defenders of gun rights argue that if the
Supreme Court sticks with the interpretation of the Second Amendment
that it sketched out in 1939, it will be eviscerating the right to own
a gun, but that is not so. Americans have significant rights to own and
carry guns, but the scope of those rights is set by federal, state and
They can't even state our arguments properly. If the Supreme Court sticks with the 1939 interpertation honestly, I'll be able to buy a new machinegun once the decision comes down. US v Miller protected military weapons even over and above non-military weapons.
It's hard to see how "significant rights to own and carry guns" are can possibly be consistent with a complete ban on an entire class of firearms, restrictive licensing and storage restrictions on all other functional firearms, and a complete ban on carrying functional firearms outside the home.
The District of Columbia City Council concluded that prohibiting the
easily concealable handguns preferred by criminals, and imposing
prudent safety rules on rifles and shotguns, was a good, practical
strategy for reducing crime, suicide, domestic violence and accidental
shootings. Far from a blanket ban, the law strikes a balance between
gun owners and the larger community.
The District's gun laws are the strictest laws in the nation, and the New York Times thinks they are balanced? Sure... balanced somewhere between "really really bad" and "police state".
In a way, it's refreshing to see all these opinion papers coming out and supporting the District's failed gun control laws. It's like flushing game... they're admitting they support handgun bans and extremely restrictive controls on long guns. They've been trying to hide this for years, even since they realized that it didn't sell to the man in the street. But now they can't hide what they really think, and we're not going to let them forget it.
Early returns from SCOTUSBlog are looking positive...
Based just on the questioning, which can prove inaccurate, the Court is divided along ideological lines in Heller,
with Justice Kennedy taking a strong view that the "operative clause"
of the Second Amendment protects an individual right unconnected with
militia service that guarantees the right to hunt and engage in
self-defense. If the oral argument line up were to hold when the Court
votes, the Court will recognize an individual right to bear arms that
will not be seriously constrained by military service of any kind.
There was a seemingly broad consensus that the right would not extend
to machine guns, plastic guns that could evade metal detectors, and the
like. There was relatively little disccusion of the trigger lock
provision. Justice Breyer seemingly sought to pick up a fifth vote for
a narrower reading of the Second Amendment by attempting to tie the
question of the reasonableness of the regulation to whether the
challenged statute left individuals with the ability to possess weapons
that could be used in milita service. But at argument, at least, none
of the Court's more conservative members expressed much interest in
that approach, and Justice Kennedy's view that the operative clause is
not directed at militia service would seem not to point in that
A decision along ideological lines would not be a surprise, and would go favorably for us if Kennedy plays along as he seems to be. Not much discussion of the standard of review.