One of the best things about defending yourself with a gun is that very often you don't have to actually use it. Merely showing the criminal your gun can often encourage the attacker to flee, similar to cockroaches scuttling for the nearest rock when you shine a light on them.
What does it take to "use" a firearm when committing a crime?
Not as much as you might think. In this case, pointed out by Patterico, the 9th Circuit upholds a 5 year sentence for using a gun while possessing marijuana for distribution. The catch? The person involved was a border patrol officer who tried to steal a portion of drugs seized while on duty. They happened to be caught on videotape. The only reason there was a gun involved is because the guy had to carry one as part of his uniform and law enforcement duties.
Now, nevermind that the drug war is wrong; never mind that this law enforcement officer is clearly corrupt; is wearing a gun on your belt as part of your normal clothing, without ever drawing the gun from its holster and without any attempt at force or intimidation, really "using" the gun in commission of a crime and worth 5 extra years in jail? Bear in mind the sentence for using a gun (60 months), was twice the sentence for the theft of the drug (30 months).
That's a lot of potential bad for a concealed-carry licensee who makes an otherwise small mistake. And I'm a lot more concerned about the fact that a law enforcement officer would steal something he's supposed to be confiscating than that he did so while wearing his duty weapon.
Suppose the Heller case, which the Supreme Court will likely rule on today, comes down with a ruling favorable to gun rights -- upholding the lower court and striking down DC's gun ban. That's not going to be the end of the story. It will still be impossible to get a handgun in the District in practice, if not in law. Why?
Simple: There are no stores in DC selling handguns. Unlike rifles and shotguns, it's illegal to buy a handgun outside of your home state. DC, of course, is not a state at all. That's going to complicate things, especially since the City may seen a backhand way to prevent handgun sales to its citizens by preventing gun stores from opening within the District.
When he applied for a
permit in late February, a representative for Zoning Administrator
Matthew Le Grant notified him his business could not operate in the
District and that the agency would send him an official explanation
He visited Le Grant's office in April and has contacted Mayor Adrian
Fenty's office and the Department of Consumer and Regulatory Affairs.
So far, he's received no details in writing about the rejection.
"I think there is a political motivation to this," he says.
If the DC government can keep any gun stores from opening in the District, they can keep their handgun ban, at least until someone brings a lawsuit over it. I suppose one way around that would be to register a firearm already owned; it would have to have been purchased while living in a different jurisdiction. That would keep the numbers down, especially if the city can think up some creative legal roadblocks for that process too.
Hat tip for this one goes to a reader who knows who he is and is much appreciated.
McCain is pushing a challenge for the Chicago ban...
... and Obama is from Chicago and part of the legislature that has maintained that ban. Not that I was in any doubt that McCain was better than Obama on guns before. I'm wondering if this issue will be enough to ignite a debate on the firearms issue that will change the outcome of the election? We'll see, I guess.
"Unlike the elitist view that believes Americans cling to guns out of
bitterness, today's ruling recognizes that gun ownership is a
fundamental right -- sacred, just as the right to free speech and
assembly," McCain said.
You mean like the First Amendment rights to free speech and assembly that your McCain-Feingold campaign finance "reform" act violated?
The Court did not much address the issue of machine guns, but the "common use" test that it prescribes will be problematic. However, I
think The Court has set itself up for an intellectual bind. Machine
guns are not in common use, but that's entirely because of the 1986
prohibition on new registrations preceded by 18 years of heavy
regulations inder GCA 68, and decades of regulation prior to that under
the National Firearms Act. In short, machine guns fail the common use
test because government regulations and prohibitions make them
uncommon. I think this is an argument that could be raised later that
could possibly ease restrictions.
I agree here. We're going to have to bring a separate case for this at some point. That case is going to rest on whether "in common use at the time" means that the government can ban something that's not in common use because it has been banned for 70 years. I can't imagine an honest court letting that stand, but we only got 5 votes for a much less scary ruling today. So let's not bring that case until we've added some precedents and case law and friendly judges, mmmkay?
I think there?s ample language in the opinion to argue that the second
amendment is incorporated against the states, and that will be the next
step. Chicago, New York, and I think, even Massachusetts and New
Jersey?s licensing restrictions can be construed to meet the standard
of ?arbitrary and capricious.? In fact, I would view this somewhat
similar to ?seperate but equal? In that the Civil Rights movement was
later able to argue that seperate can never be equal. I think one
could perhaps argue that licensing, or having to get the government?s
permission, can always be subject to arbitrary and capricious standards.
Good thoughts. The NRA has already announced that it intends to challenge the Chicago gun ban - that's an incorporation case and is the obvious next step. Pity they weren't so willing to help out with Heller at first.
On the ?bearing? of arms, I think The Court leaves open the
possibility, and perhaps even suggests the possibility that the state
must allow some form of carrying arms for self-defense. This would
presumably mean openly carrying of arms being legal everywhere, with
states still free to regulate wearing of weapons. But I would argue
that perhaps the states can regulate concealed firearms, they may not
outright prohibit them, since, given changes in society since the 19th
century, that amounts to the destruction of the right.
There's nothing that really hints at that in the syllabus, so I'll have to read the whole decision before deciding whether I agree or not. But it's a better take on the result than I got.
As reported in the decision, the syllabus is prepared by the court staff for the convenience of the reader and does not have any binding legal language; it's just the summary version. I'm going to start my analysis there. It begins with a summary of the case:
District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.
Not much to say here. It's an accurate summary. Next, the holdings:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
This is the core win for us. An individual right, unconnected to service in a militia, that protects not just hunting but also self-defense and other traditionally-lawful purposes.
(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms.
Again, part of our core victory here. The "militia clause" does not limit the right that is protected, although it may explain its purpose.
(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved.
Again a necessary part of our victory. Scalia's decision is basically blessing the "Standard Model" of the 2nd Amendment.
(c) The Court's interpretation is confirmed by analogous arms bearing rights in state constitutions that preceded and immediately followed the Second Amendment.
No surprise here -- other state Constitutions agree with this interpertation, often in language less easily confused. Enforcement of those state Constitutional provisions has not always been ideal, though, or we'd have fewer gun control laws. However, the example of Vermont, which has permitless concealed carry due to some court rulings to that effect, is instructive.
(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.
It's of dubious worth because, after all, the drafters picked one final version. However, the fact that many of the versions they began with included clearer individual rights language can be suggestive of how they thought about the proposed right.
(e) Interpretation of the Second Amendment by scholars, courtsand legislators, from immediately after its ratification through thelate 19th century also supports the Court's conclusion.
No surprise here. The "collective rights" fiction is a 20th century invention designed to provide a convenient non-answer to Constitutional challenges to the National Firearms Act of 1934.
(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264 265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
This vindicates something I have been saying about Miller for a long time -- that the ruling was based on the militia status and type of the weapon, not the militia status of the person possessing it. However, it also hints (not surprisingly, but disappointingly) that Scalia will be backing away from Miller's implied protection of military weapons. The result of applying Miller faithfully to modern laws would be... exciting. So Scalia is preemptively backing away here. We'll have to read this section of the actual decision to understand exactly where he's going. More on the other cases later. Next the syllabus has a laundry list of what we lost. On the one hand, it's disconcertingly large and includes a lot of things I wish would rather not be there. We'll have to read these parts of the decision closely to find out exactly how bad these concessions are, but it basically looks like most (if not all) existing federal laws regarding gun ownership will be preserved.
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court?s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller?s holding that the sorts of weapons protected are those ?in common use at the time? finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
Well, the result isn't unexpected, but we'll have to read it closely to understand the reasoning. The only positive thing I can say about this part is that most of it will be dicta -- not necessary in order to reach the core ruling striking down the District's handgun ban. Will that matter? Probably not to lower courts, which will use this language to avoid striking down any federal laws that resemble those listed. For future Supreme Court decisions, though, there may be some room. Notably absent from Scalia's list of permitted infringements is the Lautenberg domestic-violence prohibition -- and the court is hearing a case next term on exactly that. Interesting. Also missing is any reference to an assault weapons ban.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition -- in the place where the importance of the lawful defense of self, family, and property is most acute -- would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
And this is the most disappointing part, even though it's the part that affirms the lower court and delivers us the actual win. The court avoids setting a standard of review for firearms laws. It explicitly validates licensing and registration requirements for simple possession. The only bright spot is that it does so because Heller conceded those points in his argument -- later challenges to licensing and registration laws could conceivably have a different outcome.
So... a mixed bag. 5 votes to create an individual right that protects possession in the home for self-defense and other lawful purposes, but has a laundry list of exceptions. No standard of review specified. No word on incorporation, either. Later courts will have to decide how much weight to give this court's dicta on which infringements are permissible and which standards of review to apply and whether state and local governments are bound by this right. There's going to be a LOT of litigation on this topic. Maybe I should consider going to law school.
Overall, it's a step forward. We won on the fundamental question. We now have an individual 2nd Amendment right that the courts can (and might even choose to) protect. We'll have to fight for every scrap of protection we can get, though.
The Second Amendment protects an individual
right to possess a firearm unconnected with service in a militia, and
to use that arm for traditional lawful purposes, such as self-defense
within the home.
And we seem to still have a Republic, too. I'll be reading the decision today and posting any details that seem relevant over the next few days. It's 157 pages.
Reading the syllabus is interesting. It's a 5-4 decision, written by Scalia and joined by Roberts, Alito, Thomas, and Kennedy. There appear to be two dissenting opinions, each of which received 4 votes.
Over at Concurring Opinions there's an excellent post on what we can expect if, as seems likely, Scalia is the author of the Heller opinion. Short form:
What could that mean for the decision in Heller? As I'll
explain, I think a Scalia-authored opinion would be great news for
those who are mainly concerned with the Second Amendment as a limit on
federal gun control, but somewhat ambiguous news -- at least in the
short term -- for those who hope for the incorporation of the Second
Amendment as a check on state and municipal governments.
According to ScotusBlog's liveblog, the decision in Heller v DC was not issued today, but Chief Justice Roberts indicated that all remaining decisions for this term will be issued tomorrow (Thursday, June 26th) at 10am.
Scott Bach explains the issues. There was a favorable court ruling (a surprise in New Jersay) that struck down one-gun-a-month laws as having no rational basis. That's doubly-surprising, because the rational basis test is one that is usually very easy for a government to pass. The ruling has caused some of the local gun control groups to push for statewide gun rationing laws.
There's one point I found particularly interesting:
What they conveniently forget to mention is that a large
percentage of the traced guns have nothing whatsoever to do with
criminal activity, but they are given the label "crime gun"
nevertheless, because of a BATFE database requirement that all traced
firearms must first be given a descriptive code before they can be
entered into the system, and the only available codes happen to carry
the designation "crime" in their name, regardless of whether the traced
firearms were actually involved in crime.
I'll keep that in mind the next time someone is ranting about BATFE trace data on "crime guns". I already knew about this particular tactic for demonizing traced guns, but I didn't know the specific details that explain the designation. Sometimes, knowing a detail like that can be more convincing than the bald assertion of fact alone.
Another picture from Boomershoot, this time taken from the berm immediately behind my shooting position. You can see the two rifles my spotter and I were using in the foreground, and all the way down to the target area.
If you click the link to view the larger picture, there's a small white spot in the center of the hill, which is probably
somewhere between 550 and 600 yards away. It was very useful as a
range marker during the shoot -- except that it kept shrinking as the
weather warmed. On the first day, it covered basically the whole hill. On the second, it covered maybe 100 yards of range from top to bottom. In this picture, maybe 15 yards, maybe less.
Academic surveys criminals, finds support for gun control, may write book
... but interestingly enough, not support for gun bans. The survey covered 50 people, from what I can tell all currently in prison, 42 of which were serving time for drug offenses. The author sometimes calls his respondents "inmates" and other times "students"; why he does this is unclear. Perhaps his respondents are inmates who are also students?
I'm assuming the survey population from which answers are drawn is the same, regardless of whether "inmates" or "students" is used.
Some interesting points from the survey:
Have you ever been shot, or shot at, with a firearm? If so, provide details:
Thirty-one inmates answered "Yes," and only three of them said the shots had been fired by law enforcement officers.
Of course, the answers as reported do not preclude criminals shooting at criminals. In fact, all but one of the reported responses were cases that could easily be characterized as criminal-on-criminal activity -- the responses quoted had a definite tendency to initiate or escalate a confrontation, even while some could reasonably be considered defensive. There's really no way to characterize most of the responses as being solidly self-defense or solidly criminal, it's all in the context that's missing from the responses.
The last reported response was someone who was shot after being robbed. Note that he was shot after cooperating with his attacker.
But some students did seem to back some gun control measures, with 42 of the 50 in favorof
licensing (for any and all guns), waiting periods and pre-purchase
mental competency tests.
So, criminals want to institute strict gun controls, yet obviously they have had no difficulty obtaining their own guns despite the mere possession of a firearm being a felony for probably everyone who participated. (The odds are that everyone surveyed was either a prior felon or addicted to drugs, given the rough details we have about the participants in the survey -- currently incarcerated, 84% for drug crimes).
The survey was conducted by a Joseph Cooper, who teaches media law and ethics. What the relationship between that field and criminology is, I have no idea.
Because I'm always more than a little suspicious of excerpted media reports from such surveys, I asked the person who conducted the survey for his data. This is a normal request in most scientific circles, because it allows for peer review. His response to my request:
Thank you for your inquiry and request, but because my surveying will continue (following the Court's decision in D.C. v. Heller), and because of Dept. of Correction protocols and policies, and because of a book prospect, I must decline.
I will leave the reader to judge whether that's a reasonable response or not. While, obviously, he would be in something of a bind if the data he used has conditions attached to it, I'm not sure I buy that; how would any research on questions like this be peer-reviewed if the data cannot be shared due to a firm policy? I wouldn't mind waiting until after Heller v DC to get a complete dataset, but if that's holding him up, why publish articles about it in the newspaper?
It seems a little defensive to me. I'm particularly curious how any of those reasons could justify his refusal to share non-personally-identifiable data while not preventing him from excerpting that data in nationally-published newspaper articles.
Amusingly enough, he visited my blog immediately before issuing his response to me in email -- less than 2 minutes before, in fact. I wonder if that had any influence on his decision?
At any rate, since he refuses to provide his data, I'm not inclined to give his results any significance -- particularly not his carefully-excerpted and nationally-published excerpts. The price of credibility is openness to validation.
Thanks to David Hardy for his patience in answering a few questions concerning the ettiquette of data sharing.
Stephen Halbrook defines the words of the 2nd Amendment...
... and explains why it describes an individual right of the people, not a collective right of the states. This may be useful as a primer to gun control advocates once the Heller decision is finally published.
The inventor of the Akins Accelerator, a device for making a semiautomatic rifle fire rapidly while maintaining a separate trigger pull for each shot, is suing the BATFE after that agency first approved his invention for sale... then later banned it.
Technically, the product should be legal. It simply mechanizes the practice of "bump firing", which uses the weapon's recoil from each shot to activate the trigger mechanism. Since the law defines an automatic weapon as one that fires more than once for a single operation of the trigger, the Accelerator should be fine. Obviously, though, it makes the BATFE nervous, and if it makes them nervous they will ban it... regardless of technicalities like what the law actually says.
It's good that the media is writing about the lawsuit, even if it's not exactly making headlines across the country. Of course, this being the media, I can't resist making a few corrections to the article:
For years, marksmen have used a technique called bump firing:
shooting a semiautomatic rifle from the hip and allowing the weapon's
recoil to pull the trigger.
With the assault-weapons ban keeping most fully automatic weapons
out of their hands, it was one of the few ways for enthusiasts to enjoy
the thrill of firing a machine gun.
As any gun enthusiast knows, the Assault Weapons Ban has nothing to do with fully-automatic weapons. That's exactly the confusion that the Violence Policy Center knowingly created and spread to encourage public support. They guessed that the public would see a weapon that looked like a fully-automatic weapon, assume it actually was such a weapon, and support banning it. Never mind the facts.
That was until the federal Bureau of Alcohol, Tobacco, Firearms and
Explosives banned the Accelerator - two years after approving it -
forcing Akins to the brink of bankruptcy.
He has filed a pair of lawsuits against the ATF - in U.S. District
Court in Tampa and in the U.S. Court of Federal Claims in Washington -
challenging the agency's ruling and asking to be compensated for more
than $1 million in financial losses.
Good luck to Mr Akins.
And a hat tip to Alphecca for the article pointer.
Witness this blog on officer.com, which covers the Heller case, the recent "crime quarantine" proposals whereby DC police would cordon off whole neighborhoods, and additional projects to install thousands of cameras to monitor public places.
I won't write at length. But I'm watching. By noon today, we will know if we have kept our Republic.
UPDATE: Looks like nothing on Heller yet. More decisions announced on Wednesday, and possibly even more on Thursday. Speculation on various other blogs is pointing at Scalia writing the opinion, which (if borne out) is probably a good thing for our side.
UPDATE: ScotusBlog summarizes why they think Scalia may be writing the 2nd Amendment opinion:
It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller
? the D.C. guns case. That is the only opinion remaining from the
sitting and he is the only member of the Court not to have written a
majority opinion from the sitting. There is no indication that he lost
a majority from March. His only dissent from the sitting is for two
Justices in Indiana v. Edwards. So, that?s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.
Their reasoning makes sense to me, but of course it's still reading tea leaves until the decision is announced.
A Canadian legal reporter wants to write about the upcoming Heller decision in the US Supreme Court. But, well, he's Canadian and he writes for a Canadian paper. There's got to be some sort of hook. That's how paragraphs like these made their way into the article:
As Mayor David Miller and provincial leaders urge Ottawa to outlaw
handguns, Americans are waiting to see if the United States Supreme
Court will shoot down one of that country's strictest gun control laws.
Reading that makes me wonder if there's really a risk of this author's readership believing that a US Supreme Court ruling would have any force in Canada?
Whatever the U. S. Supreme Court decides, legal academics north of the
border say the ruling is unlikely to have much of an impact on Canada's
legal landscape because our Constitution is so different, even through
politicians in both countries are struggling over gun violence.
I guess there IS that risk. The article's not bad otherwise and surprisingly balanced. I just did a double-take every time the author had to explain why it really wouldn't matter to Canadians what the US Supreme Court rules in the case.
I've finally gotten the boomershoot pictures extracted from the camera used to take them, so I'll be posting the pictures I took during the event over the next few days. Here's a preview... these two pictures were taken on the drive up to the boomershoot site from where my plane landed. Yes, there was some forewarning that there would be snow, despite the whole April thing.
Not the best possible pictures to be sure, but not too bad for being taken from a moving car after being awake for 24 hours straight already. These are basically just random pictures of countryside covered in snow... special only because of where I was headed when I took them.
I will say this: Idaho has a lot of beautiful scenery, and I feel like I drove through most of it.
For those not in the know, Robert Levy is one of the counsel for the case. Kudos to the Washington Times for publishing what he has to say. In this case it's mostly about the procedural problems with the Miller case that contributed to a weak and confusing ruling.
Victory is imminent; we expect a 9-0 decision in favor of D.C. Paul Helmke may pay lip service to the possibility
of losing the case, but, in reality, he is quite confident of the
outcome. Our forces are metaphorically preparing to cross the Rubicon
and smash the NRA.
"Metaphorically" prepared? It better be a metaphor, seeing as actual preparation to "cross the Rubicon" with "forces" to "smash the NRA" would involve... guns. Which I think the NRA has more of.