United States

Lengthier analysis later.  For now, be happy we won.  Reports say 5-4 in favor of incorporation, with 4 votes for due process and 1 vote for privileges and immunities by Justice Thomas.

... and why we don't have it anymore, spelled out by the washington times.

The Supreme Court has chosen to hear McDonald v Chicago, a case I've been covering sporadically on this blog.  The case is Alan Gura's carefully-planned incorporation case, and he's the genius behind the Heller case that forced the Supreme Court to rule in favor of an individual right to keep arms under the Second Amendment.  This bodes well for our chances at a favorable ruling on the incorporation issue.  The composition of the court has not changed much since Heller (the court has lost Souter, who dissented from Heller, and gained Sotomayor, who will likely vote against incorporation).

Fox News says what the other media outlets won't.  The claim that Mexican crime guns are coming from the United States, particularly US gun shows, is a lie being used by the Obama administration to pressure Congress to enact gun control legislation. 

The real facts:

In fact, it's not even close. The fact is, only 17 percent of guns found at Mexican crime scenes have been traced to the U.S.

What's true, an ATF spokeswoman told FOXNews.com, in a clarification of the statistic used by her own agency's assistant director, "is that over 90 percent of the traced firearms originate from the U.S."

But a large percentage of the guns recovered in Mexico do not get sent back to the U.S. for tracing, because it is obvious from their markings that they do not come from the U.S.

"Not every weapon seized in Mexico has a serial number on it that would make it traceable, and the U.S. effort to trace weapons really only extends to weapons that have been in the U.S. market," Matt Allen, special agent of U.S. Immigration and Customs Enforcement (ICE), told FOX News.

That's right.  Measuring the national origins of weapons traced by the BATFE is a self-fulfilling prophecy.  They only trace guns that they have reason to believe originate in the US, and as a result, most of the guns they trace are found to have, in fact, originated here.  But it's the guns that are not traced by the BATFE that make up the bulk of the problem.

Fox News is saying it today.  Gunbloggers have been saying it for weeks.  The rest of the mainstream media still isn't saying it, and that should embarass the hell out of every other news program out there. 

Why does Obama want to enact gun control legislation that won't have any effect on crime, whether in the US or Mexico?  This will be hard for some people to face, but it's the simple truth: Obama is a bigot.  Not about race, but about culture.  He has almost no experience with the healthy American gun culture, he doesn't understand it, and he doesn't like it.  His cultural roots, such as they are, include Hawaii (notorious for having draconian gun control laws), Chicago (likewise), and third world nations. 

He thinks that folks who own and use guns for sport, for hunting, or even just for fun are "bitter" and "cling" to their guns because they don't have anything else in their life to cling to.  He thinks that because he doesn't know the American gun culture; he's never met us, never recognized us, and doesn't even understand that we exist.  That's a sad trait for a supposedly post-racial President to have.

Right now, Congress understands what the President does not: that gun control would be political suicide.  The House faces elections in 2010, but we're stuck with Obama until 2012 at least. He'll have at least that long to try to push his gun control agenda.  We need to make sure that Congress understands that gun control legislation will have real political consequences for anyone who supports it.

The exact words, from the Washington Times:

"As President Obama indicated during the campaign, there are just a few gun-related changes that we would like to make, and among them would be to reinstitute the ban on the sale of assault weapons," Mr. Holder said. "I think that will have a positive impact in Mexico, at a minimum."

Sebastian saw it first.

Since when are laws in the United States dependent on what will help Mexico?  Since when are Constitutional Rights subject to infringement based on what is good for Mexico?

And that assumes that the passage of a new Assault Weapons Ban would actually help the situation in Mexico.  It won't.  For all intents and purposes, guns are banned in Mexico.  Insofar as guns in Mexico are a problem, they are purchased illegally on the black market...  often from military or police sources. 

How do we know these firearms aren't coming from American gun shows?

Their arsenal ranged from semi-automatic rifles to rocket-propelled grenades. When the smoke finally cleared and the government had prevailed, Mexican federal agents captured 540 assault rifles, more than 500,000 rounds of ammunition, 150 grenades, 14 cartridges of dynamite, 98 fragmentation grenades, 67 bulletproof vests, seven Barrett .50-caliber sniper rifles and a Light Anti Tank (LAW) rocket.

You won't find (live) grenades, dynamite, or anti-tank weapons at gun shows; they are heavily regulated to the point of being essentially illegal.  You might find an assault rifle, but you won't find 500 of them, and the paperwork to get your hands on one will probably take months.  Assuming your state allows you to own one, and your local police chief will sign a letter stating that you are an upstanding citizen.

You will find semiautomatic rifles in many different shapes and sizes.  Some of them look like military assault rifles, but they fire one shot each time you pull the trigger just like any other semiautomatic rifle.  They are actually less powerful than your common hunting rifle.

Say, if gun shows really were supplying the Mexican criminal cartels, wouldn't both governments be paying a lot more attention to securing the border? 

Anyways.  If you are reading here, you already know what's wrong with the whole concept of the assault weapons ban.  So let's get to some political analysis.

There are a couple possibilities.  This might be Obama sending up a trial balloon to measure public response to the issue, or trying to pressure a reluctant Congress to advance legislation.  Or, it might be Holder speaking off the cuff (since the remarks came in response to a question, rather than as prepared remarks) without understanding the impact his personal opinion will have. 

Either way, the best response is to communicate back to your Congressmen (House Senate) and the Obama administration that the gun issue is radioactive.  Be nice, be polite, but let them know.  Even if your legislator is anti-gun, you need to express your opposition to this move.  So long as legislators perceive this as a dangerous move that will cost them votes, they will be reluctant and resist pressure from Obama.  Many of them remember what happened in 1994, following the original assault weapons ban, and it is our job to remind them.  Loudly.

The Democrats now in power aren't wasting any time in moving forward with their anti-gun agenda.  There has been a bill introduced in the House which would establish national registration and licensing requirements for firearms possession (not merely purchase!); and almost as a by-the-way includes criminal penalties for failing to report a stolen firearm within 72 hours, failing to store a firearm in such a way that it can't be stolen, fingerprinting of firearms owners, a written test before the firearms license is issued, and god only knows what else.

The only good news in this picture is that the bill has only no co-sponsors.  That means support for it is low... at least for now.  These things can pick up momentum in a hurry.

Make no mistake, this is the 11:59 bill.  If this one passes, the next one will be "Mr-and-Mrs-America, turn them all in." 

... but there's little doubt he's better than what they Democrats will be offering in 2008.  The latest demonstration of this comes from a bill to allow firearms into National Parks (when they are accessible for self-defense; I believe it's already legal to transport them when properly stored).  McCain is cosponsoring the bill and the Senate leadership is blocking is, reportedly to prevent Hillary and Obama from having to take a vote. 

Hat tip to David Hardy, from whom I got the story.

The judge, it seems, was none too happy about the outcome, but felt that it was dictated by the Protection of Lawful Commerce in Arms Act: 

The D.C. Council, she wrote, had determined that assault weapons have "little or no social benefit but at the same time pernicious consequences for the health and safety of District residents and visitors." Congress, however, "has trumped local law by passing legislation to protect the profits of such manufacturers," she wrote.

Of course, the legislation doesn't protect "profits"; it just protects the manufacturers from liability.  If the DC Council is right about the social value of firearms, then surely no one would want to buy a firearm and all the manufacturers will shortly go out of business.

This particular case is as close to a slam dunk as we are likely to see from the POLCIAA.  I'm not surprised by the outcome.  Any judge with a minimal respect for the law would be compelled to find similarly. 

The Second Amendment Foundation's Amicus Curiae brief in the Parker case.

11 Consistent with this selective approach, the District Court placed unwarranted reliance on the Supreme Court?s dismissal of a direct appeal in Burton v. Sills, 394 U.S. 812 (1969), a Second Amendment decision in the New Jersey Supreme Court. The Supreme Court is not obligated to hear any case outside its original jurisdiction; its refusal to do so is no comment on the opinion?s merits.

12 The District Court adopted two portions of the now-vacated opinion in Seegars v. Ashcroft, 297 F. Supp. 2d 201 (D.D.C. 2004): one citing various cases purportedly rejecting an individual right to arms under state constitutional provisions, but see supra, p. 13 n.5; and another listed conflicting modern circuit court opinions and concluded that ?this debate, which has resulted in a circuit split, is a prime subject for review by the Supreme Court.? Seegars, 297 F. Supp. 2d at 228. Plaintiffs agree with the latter observation.

13 Cases read Miller as being limited to its facts: ?we do not feel that the Supreme Court in [Miller] was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go.? Cases, 131 F.2d at 922. Yet the First Circuit refused to offer its own guide for interpreting the Second Amendment. ?[I]t seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.? Id.

14 Quilici held the Illinois Constitution permitted a municipality to ban handguns provided it did not ban all firearms. The Court did not reach the Second Amendment argument, as it held the Second Amendment was not incorporated by the Fourteenth Amendment as applicable to the states. Quilici, 695 F.2d at 270. Quilici?s subsequent collective rights discussion is plainly dicta.

Return to the table of contents.

The DC Appeals Court has scheduled oral argument in Parker v DC for November 13th, 2006.  Hopefully, by then, I will have all the briefing documents posted.  The presiding judges will be Henderson, Griffith, and Silberman, which answers my earlier question about whether the same mix of judges would be maintained throughout.

Regular readers will have noted that I haven't exactly been in top form lately.  Sorry.  I have a lot of stuff to post when I feel more like writing and posting it.  Nevertheless, the news that California is suing car manufacturers for pollution damages briefly stirred my apathy.  I fear that this was both horrifying and inevitable.  I am reminded of the premise of Atlas Shrugged -- the petty vindictive envy held by the human leech for those it feeds upon.

I've posted (or at least thought about posting; I can't be bothered to actually find the post) about a welcome mat with the words "Come back with a warrant" on it.  As someone who values my own rights and privacy, that would be my natural and instinctive response to a police officer making inquiries about a search of my home -- because consenting to a search when you are under suspicion is never a good idea.

But Patterico, who actually works as a prosecutor in California in addition to blogging, thinks such a welcome mat would constitute probable cause for a warrant in and of itself.

That's why I'm a Libertarian, not a Republican.  Asserting one's constitutional rights should never be grounds for suspicion.  If the government didn't have probable cause for a search before being denied permission, the fact that it was denied doesn't give any additional evidentiary weight in favor of a warrant. 

To disregard this is to render Constitutional rights meaningless.  If any refusal can be considered evidence for a compulsory search, then there is no right to refuse a search.

Earlier, I posted about an organization that did an investigation of complaint policies for police departments in Florida.  They sent in an undercover investigator who requested a complaint form.  All the investigator wants is a form -- not to "talk to" an officer about the complaint or otherwise be subjected to pressure not to file one.  He just wants the form.

Responses were mixed.  None of the officers he interacted with were willing to just let him leave with a form.  Some threatened the investigator with arrest.

Following the release of a short video documenting what they had done, the same organization tried it in Independence, Missouri.  Their investigator was arrested, violently enough to need medical care afterwards, and charges are being filed against him.  What those charges are is not specified, but watching this video should be enough to open the eyes of anyone who is still under the delusion that police officers are there to "protect and serve" the people. 

With some exceptions, they are there to keep us in line.

Hat tip to The Agitator.

... we have documents from the Clinton administration describing their strategy for attacking the 2nd Amendment and firearms in general.  In case you haven't noticed, the rash of gun liability lawsuits we've seen are the outcome of those plans.  So was the Smith & Wesson "settlement".  The Clintons were unable to implement their gun control fantasies legislatively, so they turned to other means.  This is the paper trail.

The Geek with a .45 has a take on the documents, as does Smoke on the Water.

I've read through the documents posted so far, and every single one of the points mentioned has later come up in various lawsuits. 

The JPFO are asking for donations to help them boot the BATFE. 

Wondered what the fuss was all about?  Find out here.

It should come as no surprise that an association of dictators, kleptocracies, monarchies, and communist "republics" tends to dislike the idea of ordinary people with firearms.  What surprises me is the way that so very many democracies seem willing to go along with them.

... is that they deal with Libertarians in the same way: they don't want our policies, just our votes.  The Hammer of Truth brings it home.

American farmers were the standing militia of the day. There were no police or National Guard, and only the beginnings of an army. These were the minutemen - brave, tough men and women ready to fight at a moment's notice.

The historical context of this part of the Bill of Rights - the recurring nightmare of Redcoat soldiers - shows that every American family needed a musket standing against the wall, ready to load and ready to kill.

Not so today. The premise of the Second Amendment, the need for minutemen, no longer exists. In a free society we must rely on the police. We have more important rights to fight for than the right to bear arms.

... comes a certain refreshing honesty.  When the 2nd Amendment is considered fairly, even its opponents must recognize that it protects an absolute right for ordinary Americans to own firearms.  They deny this, and write whole treatises on the fiction of a "collective right", because their policies are wholly foreclosed by the 2nd Amendment.  No form of gun control is permissable under the correct reading... and they have so much invested in the policies of gun control that they are willing to invent elaborate and transparent fictions in order to allow for them.

Until very recently, the courts and the legislatures were willing to go along with this fiction.  That seems to be changing, and none to soon.

What the forces of gun control do not understand is that the rights we have today are ours because our ancestors fought and died for them -- fought and died with arms, in a revolution against the lawful authority of their time.  The Founders gave us the 2nd Amendment because they wanted to ensure we could protect the other rights they had bought with blood.  To say now that we should rely upon the police would be to tell the Founders that the Redcoats would keep them safe. 

So when someone asks us to give up the 2nd Amendment in favor of protecting other, "more important" rights, ask them how those other rights will be protected?  As Mao once said, political power flows from the barrel of a gun.  The disarmed cannot even protect their lives, much less their rights.

There are so many different ways that our government could modernize itself in order to better use technology to communicate with the people.  The problem is, our "leaders" usually see communicating with the people to be a one-way sort of thing: they talk, we listen.  That's why we need ideas like this one to shake things up a little.  It's impossible for politicians to keep track of this stuff even with dedicated full-time staffers.  How can ordinary citizens be expected to form an opinion of how their representatives are managing the nation's budget without the tools to do so in a reasonable amount of time and effort?  

Some time back, San Francisco passed a ban on firearms.  The NRA and the Second Amendment Foundation challenged the law as contrary to a California preemption statute.  Word is now coming in that the law has been struck down by the court on those grounds.  This is fairly old news, too.  What can I say, I've been busy on lawsuits that actually deal with the 2nd Amendment...

The deadline to file was June 1st, and like clockwork the brief is available from the counsel's website.  All the delays in getting this document posted and analyzed were mine; it's a big document, coming in at 80 pages, and took me a while to digest, and then even longer to put together an analysis.  To support the depth of the document I will be maintaining a table of contents in this post, and linking to areas of deeper analysis from it.

1. Jurisdictional Statement
2. Statement of Issues
3. Statement of the Case
   
4. Statement of Facts
5. Summary of Argument
1. FOP I
2. FOP II
   
6. Argument
1. Standing
   
1. Failure to assert until prompted
2. Specific and Personal Threats of Prosecution
   
2. 2nd Amendment
1. The Supreme Court has repeatedly suggested an individual right
   
1. Printz v United States
2. Lewis v United States
   
2. Implicit Adoption within this Circuit
   
3. The Clear Intent of the Framers
4. Textual Analysis
1. The Preamble does not limit the Right
2. The Militia is synonymous with The People
3. Consistent usage throughout the Bill of Rights
4. The Right to Privately Possess and Carry Ordinary Firearms
5. The District Court Failed To Address Plaintiffs? Arguments
3. The Possession of Ordinary Handguns is Protected
   
4. The Right to Keep and Bear functional Arms
7. Conclusion
8. Footnotes
   

 

Of Arms and the Law writes that the BATFE is looking into the "stings" that form the basis of this lawsuit.  This newspaper article has more details on exactly how those stings work; it seems they sent two "investigators", one a retired cop, trying to buy a gun without the right paperwork, then sent them back the next day with the right paperwork but two numbers transposed when the dealer refused to sell, and then tried to talk the dealer into completing the sale with the wrong numbers.  The dealer called into the office that issued the paperwork and got permission to update the numbers and sell the gun.  End result: no crime committed, but Bloomberg gets a very public raid.

Later, of course, the dealer gets a very private "Here are all your guns back, sorry," and a warning of "heightened scrutiny".  Typical.  This is about intimidation more than anything else.

The District Court correctly concluded that Defendants? belated standing defense lacks merit. In addition to the other threats, Defendants referred to the intent to prosecute Plaintiffs as ?fact.? It is pointless to argue the finer nuances of what those various statements intended to convey. If these statements did not communicate the sort of direct and specific threats of prosecution that, under Seegars, qualify as a ?polar extreme? where ?clarity prevails,? they are certainly threatening enough. To deny as much is to deny the very possibility of preenforcement challenges to unconstitutional statutes.

Here the difference between Parker and Seegars is clear.  The Parker counsel put a lot of effort into establishing standing, and were able to benefit from a lot of mistakes the District's counsel and defendents made.  That makes standing in this case almost a given for an honest judge, absent menuvering about whether or not the plaintiffs are actually militia members or not. 

Yet the District Court erred, as a matter of law, in upholding the regulations.  Logic, history, the Constitutional text?s plain meaning, and the weight of Supreme Court and circuit precedent all establish that the Second Amendment secures fundamental individual rights. At the absolute minimum, such rights guarantee a law-abiding citizen?s ability to possess a functional firearm, including a basic handgun, within the home.

That right there is a large part of why this case is such a good one.  The District's gun laws are so draconian that they are vulnerable to a direct challenge without needing to weight issues of public safety against Constitutional interests.  It is a lot easier to fudge the law when you start assigning weights to policies and trying to handwaving about compelling state interests than when measuring an absolute Constitutional right against an absolute prohibition.  In a way, it's shocking the laws lasted as long as they have.  It shows how far we have fallen, in some ways.

The opinion below should be reversed, with instructions to enter judgment for Plaintiffs on their motion for summary judgment.

Return to the table of contents

BECAUSE THE RIGHT TO KEEP AND BEAR ARMS IS A RIGHT TO KEEP AND BEAR FUNCTIONAL ARMS, D.C. CODE § 7-2507.02 IS UNCONSTITUTIONAL.

Plaintiffs submit that to the extent the Second Amendment guarantees the right to keep and bear arms, the right must extend to functional guns within their own homes. Just as the First Amendment guarantees more than the possession of blank newsprint and ink, the Second Amendment guarantees more than a right to possess metal and springs. And just as the First Amendment would not sanction an act mandating the capping of pens at all times, neither does the Second Amendment tolerate laws requiring, without meaningful exception, the disabling, locking, or disassembly of all guns. The right to keep and bear arms implies the right to keep and bear arms in such conditions that they are readily accessible to be used effectively when necessary.

D.C. Code § 7-2507.02 requires that all guns must be kept unloaded and either disassembled or bound by trigger lock at all times unless they are located in one?s business or while a person is engaged in recreational shooting. Yet the District?s self-defense law extends with equal force to a person?s home. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991) (?imminent danger? would have supported deadly force in self-defense inside home); Cooper v.United States, 512 A.2d 1002 (D.C. 1986) (assuming no duty to retreat when attacked inside home by strangers, no ?castle doctrine? against co-occupants). Clearly, a person?s interest in defending against a home invasion far exceeds the interest in securing a business or recreation. ?Surely nothing could be more fundamental to the ?concept of ordered liberty? than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions.? Quilici, 695 F.2d at 278 (Coffey, J., dissenting) (emphasis original).15

Plaintiffs would not object to properly tailored laws requiring the safe storage of firearms, provided the law permits the lawful use of the firearm within the home. But even the federal law barring felons from possessing firearms is understood to carry a justification exception. United States v. Gomez, supra, 92 F.3d 770; see also United States v. Mason, 233 F.3d 619, 622-23 (D.C. Cir. 2000). Certainly Plaintiffs have at least an equal interest in their fundamental constitutional rights as felons have in a necessity or justification defense.

Safe storage laws are generally not objectionable on principle, even within the bounds of the 2nd Amendment, assuming they are crafted narrowly.  The objections arise from the impossibility of enforcement and the use of such laws as a vehicle to prohibit self-defense use (as is happening here). 

The "necessity or justification" defense covers a few situations where felons have possessed firearms in the course of defending their lives from a violent attack.  While going out to deliberately obtain a gun would not be a defense, using one that was available on the scene would be acceptable.  Taking a gun from one of the attackers is one example.

The DC laws in question do not contain self-defense exceptions in the text, and they do not contain self-defense exceptions in the case law either.  In one of the earlier briefs in this case specific instances of individuals prosecuted for using a firearm in self-defense were cited.

Thus, while Section 7-2507.02 addresses an arguably appropriate area of regulation, it is unconstitutionally overbroad in its reach. The overbreadth is especially troubling considering Defendants? aggressive prosecution of gun owners in cases of admittedly lawful self-defense. Chief Judge Ginsburg suggested that the risk of prosecution in such cases is ?speculative,? Seegars v. Gonzales , 413 F.3d 1, 2 (D.C. Cir. 2005) (Ginsburg, C.J, concurring), while Judge Williams suggested the risk was real. Seegars, 413 F.3d at 2-3 (Williams, J.). The Court ordered the instant Plaintiffs to file additional briefs in light of the outcome of the Seegars rehearing petition. As Plaintiffs demonstrated with reference to specific cases, Judge Williams?s intuition is sadly correct: victims of home invasions who defend themselves with firearms are prosecuted for gun violations, even where the government does not question the legitimacy of using the firearm against the intruder. (Pl. Second Mot. To Issue Br. Schedule & Set Arg. on Merits, pp. 13-15).

The right to possess a non-functioning firearm within one?s home is no right at all. Defendants must be enjoined from enforcing D.C. Code § 7-2507.02 in a manner inconsistent with Plaintiffs? Second Amendment rights.

And there you have it.  The District's gun laws permitting possession of a long gun in the home if it is rendered inoperable are no more acceptable than one allowing possession of a printing press so long as it never printed anything.  Possession is meaningless without the right to use the object as intended.

Return to the table of contents.