Skip to comments.One Month after McDonald - The state of the Second Amendment.
Posted on 07/29/2010 12:54:56 PM PDT by neverdem
One Month after McDonald
The state of the Second Amendment.
One month ago, the Supreme Court held in McDonald v. City of Chicago that states, not just the federal government, are prevented from violating Americans’ Second Amendment right to keep and bear arms. The Supreme Court did not, however, define the full scope of the right, nor the standard of review by which challenged statutes will be judged.
In other words: It ain’t over yet. A number of pending lawsuits across the country will further shape how the Second Amendment will be applied.
The first lawsuit of note comes from Chicago. As soon as the Supreme Court struck down the city’s handgun ban in McDonald, Mayor Richard Daley worked with the city council to pass a very restrictive gun-control regime to take the ban’s place. The National Rifle Association promptly filed suit, challenging, among other things: a ban on having more than one “assembled and operable” firearm in the home at any time; a rule forbidding gun owners to carry their firearms in their own garages, porches, and places of business; and a policy outlawing gun shops and shooting ranges in the city in spite of the training and range time the city requires for obtaining a permit.
California, which has long been the darling of gun-control groups for its heavy firearm restrictions, is also facing a day in court. Gun-show promoters have been litigating their right to have a show on Alameda County grounds, an action barred by a county ordinance. A three-judge panel decided last April that the Second Amendment applied to California, anticipating the conclusion in McDonald, but found that the ban on gun shows on county property was still constitutional.
The Ninth Circuit voted to re-hear the case en banc (that is, all eleven judges would review the decision of the three-judge panel), but in light of McDonald, that order has been rescinded and the case remanded to the original panel for reconsideration. Rescinding an en banc re-hearing is an unusual turn of events, but nothing follows the norm in this suit. The panel has asked for further briefing from the parties, indicating that it may reverse itself on the constitutionality of the gun-show ban.
Also, the Supreme Court has vacated a decision of the Second Circuit upholding New York’s ban on nunchuks and remanded the case for reconsideration in light of its holding in McDonald. Though the McDonald case focused on firearms, the text of the Second Amendment encompasses “arms” in general, and the Second Circuit will provide some guidance on the constitutional protection of martial-arts weapons.
Just up the Hudson River, Alan Gura, the attorney who carried the day in the Heller and McDonald decisions, filed suit to challenge the discretionary permitting system for handgun carry in Westchester County, N.Y. At issue is whether permit applicants can constitutionally be required to show a “unique, heightened need for self-defense apart from the general public” in order to carry a gun. The Second Amendment allows for no such restriction on the right to bear arms, and by the time a need for self-defense arises — think, for example, of a woman who’s being stalked — a potential victim needs to be able to carry a gun right now, not after pulling together paperwork and waiting for government approval.
The New York right-to-carry case joins a similar suit that Gura filed against the District of Columbia in the wake of the Heller decision. California guns activists have an existing lawsuit challenging the concealed-carry policies of Yolo and Sacramento counties that will now be reconsidered in light of the McDonald decision. At least one Wisconsin prosecutor has declared that he will no longer enforce the state’s ban on concealed carry because of the recent Supreme Court action.
Yet another Alan Gura lawsuit is a challenge to North Carolina’s emergency-powers statutes. In essence, whenever a state of emergency is declared at any level of government in the Tarheel State, firearms sales or transfers are outlawed, as is carrying a firearm off one’s own premises (even for those with concealed-handgun permits). That doesn’t sound unreasonable at first blush, but officials have declared at least a dozen emergencies since September 2004, usually encompassing the entire state. This is an on/off switch for an enumerated right. Why have rights at all if the government can turn them off at will?
The future of the scope of the Second Amendment is unclear, but McDonald has guaranteed that, at last, a liberty the Founders considered worthy of a constitutional amendment will be taken seriously in courts across the land.
— David Rittgers is an attorney and legal-policy analyst at the Cato Institute.
EDITOR'S NOTE: This piece has been amended since its original posting.
Gura needs to sue NY to make it allow Out of State Residents to carry.
200+ acres in NY, and I cannot even possess a handgun in my own home, because I am a VA resident.
New York State, even outside of Manhattan, does not appear to have changed anything.
They still want $340 for the application and $105 for fingerprinting. You then need 4 references. Then there’s the 6 to 8 month wait while some Neanderthal decides your case. Then your application goes to a licensing judge.
This process has got to be unconstititional.
They will never give up trying to disarm us. We must never give up fighting them.
In other words, you can't possible prove this unless you bring someone who is threating you to act as a witness on your behalf!
After all these years of pussy-footing arounf the issue by the NRA, one lawyer with some fire in his belly and some sound stategery is getting the job done.
All of which is making it quite clear that the NRA hasn’t been walking their talk for years.
“All of which is making it quite clear that the NRA hasnt been walking their talk for years.”
The NRA is a gun rights marketing organization. It relies on much smaller, state level groups to do do the heavy lifting.
That statement is a red herring. It doesn't matter how they organize themselves, NVDave is saying it's ineffective or they'd have results to show like Gura does.
What it took was a five Supreme Court Justices in favor of the 2A. The reason the NRA didn’t want to go to SCOTUS before was that instead of Roberts and Alito you would have had Stevens and O’Connor. Instead of a 5-4 win we would have had a 5-4 or 6-3 loss. Call it pussy-footing or whatever, but sometimes it’s smart to play the waiting game.
Self correction, that would have been Rehnquist and O’Connor. No telling how either of them would have voted. And remember, Alito wrote Heller.
I don’t need judges to tell me what “arms” encompasses. From a one-inch folding blade to a rail-mounted howitzer, it’s all protected under the Second Amendment, NO MATTER WHAT some judge might say.
The NRA refused to get a clean case, too.
Back in 1993, I was part of a small group of RKBA activists that used to meet in San Francisco with some lawyers about RKBA issues. One of these lawyers was Don Kates, a name people should know if they’ve been involved in the RKBA “movement” or know the history of taking Second Amendment cases to court(s).
Mr. Kates was saying even back then that the NRA needed to create a case as Gura did: find people who had clean, pristine records. Find the right venue - and DC or Chicago were mentioned even back then as being the places to start.
Now, with respect to Stevens/O’Connor, Mr. Kates mentioned that there were ways to get an effective ruling by a majority of the Circuit Courts before taking it to the SCOTUS. For example, get a decision in several Circuit Courts with an individual RKBA interpretation and don’t bring cases in the anti-RKBA Circuit Courts (eg, the Ninth). Get other cases within the pro-RKBA Circuit Courts that use the precedent of the prior Circuit Court decisions. Now, when a case finally goes to the SCOTUS, they’d have to overturn case law and settled cases. The SCOTUS is loathe to do this.
In other words, it would have been a long, carefully thought out road to get the results we wanted. The NRA always wanted some big splash of a case, they never wanted to put in the sustained, case-after-case strategy how to build the case law and get the outcome we wanted. Mr. Kates used to be frustrated at the lack of clear thinking about how to get the result we wanted on the part of the NRA lawyers. At one point, Mr. Kates was muttering that the person who was going to finally take the case would be a young attorney who would come out of left field and make a huge reputation for himself by taking on the hard lifting of doing this - and history showed me (at least) that Don Kates was right: it was a lawyer outside of the RKBA movement who decided that he was going to take these cases and make a name for himself.
Mr. Gura effectively used Mr. Kates’ strategy from all those years ago - find plaintiffs in the selected jurisdictions who met the criteria to take away all the “exit ramps” from the wobbler justices. What was needed were people in a jurisdiction who had clean, pristine records, had a verifiable need to self defense, were domiciled in an area where all possible legal use of firearms (owing included) were outlawed. Then make a case that these people have a right to self defense. This is effectively what Gura did. It is NO accident that Gura went after DC first, then Chicago second.
Don Kates had this in mind years and years ago.
Wouldn’t any lower court victories have probably ended up in the Supreme Court anyway? We were lucky that when one did get there, we had 4 solid pro 2A justices. No telling how squishes like Rehnquist and O’Connor would have gone. For that matter Kennedy might have gone along with the libs if it were only Scalia and Thomas making solid arguments.
Incrementalism chipped away at the 2A. Incrementalism is the only way we will restore this basic right. We have to keep fighting for it. Heller and McDonald were huge victories and the tip of the iceberg.
The NRA are just cowardly. They “pick their battles” which means they only take the rare sure bet and leave the real fighting to people and groups with more conviction. The NRA are fairly useless.
“NVDave is saying it’s ineffective or they’d have results to show like Gura does.”
And he would be right to say so. The value of an organization is ultimately determined by the results it achieves. Unfortunately for about the last decade the NRA has been low on results and high on patting itself on the back for the successful efforts of others.
I’m not anti-NRA per se. I’m a former long-time member and left on polite terms. I simply found that there were other organizations that were doing a much better job with a lot fewer resources. I couldn’t justify spending money on an organization that wasn’t earning it’s keep.
Historically the NRA has been a good organization and there have been some times, especially in the late 60’s early 70’s, when the NRA would be rightfully credited with having saved the bacon for gun owners. But things change. And the NRA desperately needs some changes in it’s management.
The NRA exists on margin - without the fight, they have no purpose.
Thus, they have a vested interest in not winning, but in prolonging the fight.
I think I must have misunderstood your earlier post. It sounded as if you were saying that it was OK if no results were produced under the “NRA” name, because their donations enabled results from state groups the donors might not necessarily associate with the NRA.
Maybe and maybe not. If you picked the right cases, a circuit court opinion might have settled the issue.
Mr Kates used to becomeshort of patience with those who wanted the “one big case” when we had lost so much ground in a piecemeal fashion. What we lost would have to be taken back one piece at a time, piece by piece.
One of the reasons we lost so mich, as Mr. Kates saw it, was that too many RKBA cases came out of compromised litigants, ie criminals. Judges tend to look down on claims of “I have a right to own a gun” by criminals. One of the very first things the NRA refused to do was qualify a plaintiff or class who was/were squeeky clean. This is what Gura did very well.
LOL! What field was the Nobel Prize for, one of the hard sciences?
I think you did an inadvertent mix 'n' match. The majority in Heller was written by Scalia. Alito wrote for the majority in McDonald.
Chemistry or Biochemistry, I believe. It was 30+ years ago, at the University of Wisconsin.
No, the Militia Act of 1791 defined the arms protected by the 2nd Amendment as being non-crew-served.
A Howitzer is crew-served. A submachine-gun is not. Same for nukes, crew-served.
If the arm/weapon is crew-served, then government can control it.
Clearly ordinary firearms are not crew-served.
Thus goes the law...
Kates is brilliant. His strategy needs to be applied across the Bill of Rights.
Think Kelo, think ESA, etc.
It’s a stupid law.
He is. I learned so much about Con-law while listening to Mr. Kates. He’s a quirky fellow, but exceedingly smart. When he starts laying out the law, the decisions, the reasoning behind some of these SCOTUS cases, he does it in a way that we laymen can easily understand, but he doesn’t talk down or diminish the point. In just a few months of meeting with him and a couple of other RKBA lawyers, I learned a ton about ConLaw, how the SCOTUS operates (ie, that the verbal presentation is mostly for show and to allow the justices to torment the lawyers presenting the case), that each Circuit Court has a reputation within the SCOTUS (eg, the Ninth has one and it isn’t necessarily good, esp. on death penalty cases), and so on.
On top of everything he knows about the SCOTUS and federal law, he can start rattling off state supreme court decisions all over the country on the area of law he’s working on. His knowledge on the cases and causes he’s fought is like a walking law library, and his reasoning on how to attack some of these losses of freedoms makes a LOT of sense. It also would be a bunch of work, but nothing worthwhile comes easily. After learning more about what it takes to put on a case that will go to the SCOTUS, I learned the importance of “framing” the case correctly from Mr. Kates - and it has proven to be the deciding factor now in both Heller and McDonald.
As Alan Gura has shown, Don Kates’ strategy *works*.
That is my understanding as well. The “...and bear” words come into play here. A single man cannot “bear” a howitzer into action. The understanding of the contemporary law at the time (1790’s) was swords, cutlass, knife, dagger, pistol, rifle, shotgun and musket, ie, arms that one man can carry and deploy.
Aye. Crew-served weapons like ships of war and cannons were entirely up to the government to control or not, while non-crew-served weapons are entirely up to the citizenry.
Government can’t touch them.
No, you’re just making stupid comments. Probably to be provacative for whatever motive.
The Militia Act of 1791 has stood the test of time. Back then, the government could regulate ships of war and cannons; today, the government can regulate who gets to possess a nuke or not.
For a law to survive so many centuries, it had to have been written properly. Instead of naming ships and cannons, the law was written by someone who grasped that new technology was possible. Hence, the right for government to control “crew-served” weapons instead of more specific “ships and cannons.”
It was genius. Of course, people today are substantially less smart. Society has been dumbed down. Today it takes lamakers 2700 pages to mandate that people buy health insurance.
Now there’s a stupid law. The healthcare law will vanish; it won’t stand the test of time. In contrast, the Militia Act will be around as long as the U.S.
...more amazingly, the Militia Act let’s everyone know what is legal conceptually: a one-man weapon is the public’s...a crew-served weapon is the government’s to control (gov can OK it or ban it or anything in between).
Sec. 10. And be it further enacted, That this act shall continue and be in force, for and during the term of two years, and from thence to the end of the next session of Congress thereafter, and no longer.
Original cut-off date.
And whereas sundry corps of artillery, cavalry and infantry now exist in several of the said states, which by the laws, customs, or usages thereof, have not been incorporated with, or subject to the general regulation of the militia.
Sounds like they didn't want cannons government-owned.
Looks like they got rid of the original cut-off date. Still don't see anything about crew-served in this one.
Thank you. I had a hope that it wasn't.
I was heartened by his ability to overcome his prejudices by looking at facts, and ability prized in the hard sciences.
It sounds totally unreasonable! - During an emergency is when all citizens should be armed at all times.
The purpose of that ridiculous statute is obvious: to prevent people from traveling with guns during emergency evacuations. - This has to fall.
I spoke with Dick Heller a couple of years ago, and in fact, Gura and Heller's plan had unfolded over the course of the past 20 years, when Gura and Heller decided that Heller ought to get a job working security in DC and work his way up to armed security, to lay a foundation for the Second Amendment case based on the handgun which Heller had refused on principle to register in 1976.
I think if you're going to post such an outlandish and unprecedented claim, you should back it up with cites.
And before you attempt it, note that just because an individual citizen is required by law to provide himself with a bare minimum of armament and supplies doesn't mean that this is also a "maximum" permitted outfitting.
The Constitutional provision for "Letters of Marque and Reprisal" would be meaningless if a private citizen could legitimately be forbidden to own a battleship.