Snowflakes in Hell

From Sanford Levinson, Professor of Law of the University of Texas, on interpreting the Constitution:

“It really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens. Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.”

He must hang out in very different bars than the ones I’ve known, but the assertion is interesting. The article goes on to say:

Those arguments can and should have consequences, according to scholars who endorse what they call “popular constitutionalism.” “Basically, it’s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,” Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.

This is versus originalism, which essentially argues the meaning of the constitution doesn’t change over time, and its meaning is divined either through original public meaning or original intent (of the founders). I’m probably a bit more of a pragmatic originalist. I think you have to be rooted in the text of the document, and when its meaning is apparent and has a clear meaning, you interpret along textual lines. But I also tend to agree with Jefferson, who once wrote:

The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.

My big problem with doctrinaire originalism is precisely what Jefferson speaks of here, of previous generations imposing their “burdens on future generations.” So when Alan Gura, in the the oral arguments of McDonald says the court should be originalists in its identification of a right, but take a modern view of that right, I can relate to what he’s saying.

How much of a role should originalism play in constitutional interpretation versus such a “Popular Constitutionalism” method? Keep in mind you will generally arrive at an individualist Second Amendment either way. But originalism and popular constitutionalism probably yield different results when it comes to interpreting the boundaries of that right. The founders’ concern, which prompted the inclusion of the Second Amendment, had very much to do with the distribution of military power in society and keeping military power be in the hands of the people. It’s not that they didn’t believe in individual self-defense, but that wasn’t the primary intent. From the founding up to the civil war, the public understanding became centered around individual self-defense. This is largely the popular understanding today, and what The Court went with in Heller. It’s always seemed to me that original public meaning originalism (as supposed to original intent) is actually a form of popular constitutionalism, though one that looks back at the meaning at the time the text was adopted, instead of how people view it today. A Second Amendment right centered on the original intent distribution of military power probably looks very different from one centered on self-defense in an original public meaning context, which looks different yet from one in a modern popular constitutionalism context.

I’m not sure that any method has to necessarily disparage the other when it comes to the right to bear arms, but which one is most legitimate? Which one is most rooted in the real world? Which one best preserves liberty?

The Brady Center are elated over two recent Massachusetts Supreme Judicial Court decision in regards to gun rights. Two two cases are Commonwealth v. Runyan and Commonwealth v. DePina. Both cases rest a great deal of their reasoning on the fact that the Second Amendment is not incorporated against the state. In the latter DePina case, the entire Second Amendment claim would seem to rest on the lack of incorporation, and also on a related state case Commonwealth v. Davis, which gutted Massachusetts’ right to bear arms provision from its Constitution.

There is some glimmer of hope for the Brady Center though, in the Runyan case, the other leg on the Second Amendment claim was that Massachusetts safe storage law is distinct from that of the District of Colombia. The Massachusetts SJC notes:

Under this provision, an individual with a valid firearms identification card issued under G.L. c. 140, § 129C, is not obliged to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual’s control. A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device. The gun owner’s obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner’s immediate control.

That may be so, but the exception only provides for carrying or immediate control. Does that apply to sleeping with a loaded gun in your bedside drawer? It’s interesting that the SJC notes in Footnote Seven:

We note that the Court in Heller, supra at 2820, declared that its analysis should not be taken to “suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” We do not, however, decide whether the defendant’s alleged violation of G.L. c. 140, § 131L (a ), could survive a motion to dismiss if the Second Amendment were made applicable to the States through incorporation under the Fourteenth Amendment’s due process clause.

To be honest, the SJC probably did us a favor by dismissing Runyan, because I don’t really like the facts of the case. Runyan came about because the mentally disturbed eighteen year old son of defendant Richard Runyan was firing a BB gun at his neighbor’s home. When police arrived, they asked the son if there were other guns in the house, which lead to the discovery of an unsecured rifle. Runyan was not home at the time. If G.L. c. 140, § 131L (a) is to be held unconstitutional, Runyan isn’t the case to do it with. The facts of the case are not good. It would be far better to pursue this claim with a defendant who was home at the time police discovered an unsecured firearm. Runyan also possessed an expired license for the rifle, as required by Massachusetts law, so that further complicates the claim. As it is, Massachusetts used to issue lifetime licenses, but later changed the law, so there are a lot of Massachusetts gun owners walking around with licenses that don’t have expiration dates on them, but are nonetheless expired because they were unaware of the change in the law.

We may have better luck going forward, but I would say this wasn’t the case, and that the Massachusetts SJC probably isn’t a favorable venue for future cases.

Looks like I’ll be attending the Firearms Law Seminar this year at the NRA convention in Charlotte. This is something I’ve always meant to attend, but things have been so busy previous years this is the first year I really have a chance.

If I were a lawyer, this would count toward Continuing Legal Education, but they do have a reduced fee for lay persons who want to attend. I think this should be very interesting and educational. Some of my favorite names in Firearms Law will be presenting.

Given that he reports he disposed of the firearm with New Hampshire police, it would seem that he might not be in trouble based on what the law actually says. In this case we’re talking about 18 USC 922(a)(3) which states that it shall be unlawful:

(3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State, (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter;

So it does seem that he’s in the clear if he legally disposed of the firearm in New Hampshire. The question I would have is whether he disposed of it legally. It gets complicated that he’s a Massachusetts resident transferring a gun in New Hampshire, because for that we have 18 USC 922(a)(5):

(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to

(A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and

(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

He turned it into the police, but I would note the police are not a federally licensed dealer or collector. Ironically, he would probably have been in the clear completely had he just sold the gun to an FFL the next day at a gun show. For the act of purchasing the firearm, it would appear this student committed no crime, but the act of turning it into the police may have itself been a federal crime, since the police do not hold a federal firearms license, and are not residents of Massachusetts.

But I think that’s being hyper-technical. I doubt you’ll see any prosecution because the kid transferred it to police, even if it violated a technical letter of the law.

UPDATE: As a commenter points out, the definition of “person” in 18USC921 doesn’t include state agencies, like local police, only individuals, and a few other corporate entities. So there was no crime here.

Eugene Volokh reports on an unusual law in Kansas that actually can make the punishment for brandishing a gun higher than if you actually shot someone, under certain circumstances. I agree with Professor Volokh that this is something Kansas groups should get the legislature to fix, pronto.

I’m finally having some time to go over ANJRPC’s Federal Complaint in detail. The important thing is that this was filed in Federal Court. New Jersey’s court system is notoriously stacked against gun owners. The courts in the Garden State are highly political, sometimes corrupt, and will often ignore plain law. It is fair to say the independence of New Jersey’s courts leaves much to be desired. The Federal Courts are a much better venue to raise questions like this than in New Jersey courts.

We get into federal court through what’s called Federal-question jurisdiction, namely the claim that federal law preempts states for prohibiting the sale of air guns, and that New Jersey is violating said federal law with their rationing scheme. That is the real meat of the case. But because we are raising claims under a federal question, we can also raise claims under Supplemental Jurisdiction, and this lawsuit does that as well. The first concurrent claim related to the original count is raised under the due process clause of the 14th Amendment, claiming (legal format altered for space and readability):

Members of Plaintiff Association wish to qualify for one or more of the Exemptions. On or about January 13, 2010, Plaintiff Bach applied for three Handgun Purchase Permits. Plaintiff Bach wishes to apply for the Collector Exemption so he can purchase more than one handgun within a 30 day period, which purchase would satisfy the statutory criteria for the Collector Exemption.

On or about January 14, 2010, Plaintiff Bach inquired of the State Police as to what procedure is available to apply for the Exemptions. The State Police told him that there was none at this time. Upon information and belief, at this time there is no procedure in place by which an applicant can apply for and the Superintendent can grant any of the Exemptions.

Accordingly, certain Plaintiffs and/or Members of Plaintiffs who would qualify for one or more Exemptions, and who would therefore be entitled by law to purchase more than one handgun in a 30 day period are being unlawfully constrained by the One Gun Law, are unable to purchase more than one handgun in a 30 day period, and are unlawfully subject to prosecution if they do so.

Therefore, Plaintiffs are being deprived of their liberty and/or property without due process of law in violation of Amendment XIV of the United States Constitution. Plaintiffs are therefore entitled to preliminary and permanent injunctive relief, including, but not limited to, relief enjoining the enforcement of the One Gun Law.

So the law provides for an exception, and the State Police claim to have no procedure for dealing with the new law. This is typical of how New Jersey operates, and New Jersey gun owners should be greatly pleased, for once, they will have to answer for it in court. The next claim is similar, also under the 14th Amendment:

N.J.A.C. 13:54-1.4(h) provides as follows:

Applicants for a permit to purchase a handgun may apply for more than one permit per application. The number of permits requested, and each permit number shall be entered in the spaces provided on the application.

On or about January 7, 2010, Plaintiff Johnson applied for two Handgun Purchase Permits at the Washington Township (Morris County) Police Department. Notwithstanding the One Gun Law, Plaintiff Johnson can save time, effort, and expense by applying for multiple Handgun Purchase Permits simultaneously and lawfully using only one Handgun Purchase Permit with any given 30 day period. On or about January 8, 2010, the Chief of Police of Washington Township notified Plaintiff Johnson by letter that as of January 1, 2010 the New Jersey State Police are only permitting one application for a Handgun Purchase Permit per month and returned the fee for his second Handgun Purchase Permit. By denying Plaintiff Johnson’s right to apply for two Handgun Purchase Permits simultaneously, Defendant Washington violated N.J.A.C. 13:54-1.4(h), which explicitly authorizes such application.

The law actually allows individuals to still apply for more than one permit to purchase at a time. The claim is that police departments are violating the law by refusing to accept applications at a rate of more than one per month. Presumably then it would be up to the purchaser and dealer to ration the gun purchases, however this complaint asks for injunctive relief against the entire law, the two concurrent claims just help make the case stronger, and will possibly put police departments under court order not to enforce any aspects of the one gun a month law.

Police departments in New Jersey having to follow the law when it comes to gun permits? What a novel concept! This suit does not raise any Second Amendment claims, which is prudent given that we do not yet have a ruling in McDonald as of yet as to how the Fourteenth Amendment applies Second Amendment rights to the states.

While I’ve been busy with work related items, it’s gotten around that NRA is filing to get some time during the oral arguments of McDonald, effectively splitting Alan Gura’s time before the Court. I’m not meaning to take sides in this, because while I understand NRA’s concern, I’m also willing to give Gura the benefit of doubt in how to argue his case. What I would like to do is explain the issues here as best I can, and try to convey what each side is trying to achieve, and why this might cause some conflict. The Supreme Court’s grant of Certiorari (cert for short) in the McDonald case goes like this:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

That’s a strong indication that the Supreme Court would like to see arguments for both Due Process Clause incorporation and P or I incorporation briefed in this case, and that ground is indeed covered in the Petitioners brief, NRA’s brief and other amicus briefs. By this point, it’s pretty clear that Alan Gura has set out on a path to get the Second Amendment incorporated (properly, in my opinion) under the Privileges or Immunities Clause, and NRA favors the more conservative and less risky incorporation under the Due Process Clause of the Fourteenth Amendment.

One can probably get to a motivation for favoring each method by thinking carefully about each party. It would seem Alan Gura came to the gun issue through a generally libertarian legal philosophy, much the same way many of us did. Having already won a landmark case before the Court on one libertarian issue, his place in legal history is assured. But winning a case that overturns Slaughterhouse would make him a legend in legal history. Hell, even just overturning Cruikshank, and bringing that part of the 14th Amendment back to life would be a hell of an accomplishment. Having come to the issue myself through a strongly libertarian bent I loved the Petitioner’s Brief in McDonald. The opportunity to bring the Privileges or Immunities clause back to life is right now, if it’ll ever happen. For someone who loves our Constitution and liberty, this can’t be passed up. I can’t blame Gura for taking the chance. I probably would too in his position, and if he prevails, our Republic will be better for it.

NRA, institutionally, is a lot more conservative, because their only concern is the preservation of Second Amendment rights. Ancillary libertarian concerns aren’t on their mind institutionally. While there might be (well, are, I can tell you) individuals in NRA who are sympathetic to the idea of restoring P or I and overturning Slaughterhouse, NRA as an institution is only concerned with getting a clean and firm ruling on incorporation, and is definitely wary of sacrificing incorporation on the altar of Privileges or Immunities restoration. They are probably concerned that the justices have a chance to hear more about incorporating the Second Amendment under the due process clause like we do with other constitutional rights.

So what’s the real risk? Who the hell cares how it’s incorporated, as long as it’s incorporated, right? I suspect what NRA is looking to avoid is a judicial train wreck of a ruling, where you get something like three justices voting on incorporation through Privileges or Immunities, three justices voting on incorporation through Due Process, and three voting on no incorporation because they think Heller was wrong, and the Second Amendment isn’t any real fundamental right that need be incorporated against the states. In a hypothetical ruling like that, you have no clear majority opinion, so the Marks rule is used:

The Marks Rule has raised the following schools of thought regarding the appropriate basis for determining the holding in such fractured cases: (a) the narrowest analysis essential to the result derived from a combination of all concurring opinions; (b) the concurring opinion offering the narrowest rationale; or (c) only those parts of the concurring opinions which overlap and arrive at the same result. For example, if one follows the first interpretation, then the holding in the case should be viewed as the narrowest rationale supported by all of the concurring opinions read together as though it were a single majority opinion, and where there is a conflict, the opinion based on the narrowest ground governs.

You can see how it might complicate things in moving forward on Second Amendment rights in the future, if we were to get McDonald in a plurality opinion. This would seem especially true since Marks may not quite cleanly apply. Is P or I more “narrow” than Due Process? NRA would presumably like to avoid the potential for this, and just have a clean ruling following the same legal reasoning as other Constitutional rights. They are going to, therefore, be concerned the justices aren’t able to hear enough oral argument along those lines.

Not that I believe Alan Gura is being reckless or daredevil in the way he’s decided to argue his case. The Supreme Court asked for this, really. What reason they have is not really something we can know, but they did. I can’t believe they would have granted cert the way they did if they weren’t interested exploring both options. I also still strongly believe that we will have incorporation at the end of the day. I sincerely hope we can have incorporation by Alan Gura succeeding in overturning Slaughterhouse and/or Cruikshank, but I’ll take it any way I can get it. Still, I think NRA has a valid concern in wanting time. Presumably if they are granted time, it’ll be Stephen Halbrook before the Court. I think either way this goes, our rights are in very good hands. We are fortunate to have competent and highly talented people working this issue on our behalf before the Court.

If you’ve followed the carry movement around the country, you all know that sometimes there are sometimes “issues” with what’s a public place, locations that are exempt from laws, and related matters. Turns out we’re not the only ones.

A decades-long dispute between Hare Krishnas and the Los Angeles International Airport over soliciting donations appears to be nearing a resolution, as the California Supreme Court heard arguments Wednesday over whether the airport is a public place.

The International Society for Krishna Consciousness of California argues that the airport is much like a public park, and should therefore be open to solicitors.

California’s other major airports are supporting Los Angeles’ position that airports are private property. …

The Los Angeles City Council passed a law in 1997 prohibiting the receiving of donations at the city-owned airport.

As Tony Woodlief said: “… anyone who ever enjoyed ‘Airplane!’ kind of has to be rooting for them just a little.”

I’m rooting for them. Not because I want a flower, but because I find it hard to believe the argument that the entire airport property can be owned by the city and yet somehow private. It’s publicly owned, it’s a public place. Obviously, I would agree there can be restrictions such as the secure areas, and reasonable bans should be allowed. The city probably owns offices, but I don’t believe that it means we get to play frisbee with out dogs down the corridors of those offices. But having a higher burden of proving a restriction is reasonable is not a bad thing.

Looks like he did so at a speech for the Mississippi College School of Law. Sadly they don’t go much into what he said about the Second Amendment, but they do cover Scalia’s warnings about appeal to international law. I have to agree with this part too:

Scalia also said that he was worried by a mounting trend of appointing career judges to the judiciary. Scalia, 73, is a former appeals court judge, but he had also worked in private practice, as a law professor and in the administration of President Gerald Ford before Ronald Reagan nominated him to the Supreme Court in 1982.

“Every aspect of your career broadens your outlook and the insights that you would have. It’s good for the Court to have people with varied backgrounds. One of the things I’m concerned about is that in recent years, nobody who has been appointed has come from another bench,” Scalia said. [...]

[...] Calling European judges “the most blinkered bureaucrats,” Scalia said that career judges in European systems can develop a sympathy for the government’s side of a case, having worked for the government their entire professional lives.

“You contrast that with the Anglo-Saxon system, where in the most important courts the judges not only have not been spending their whole life with their snout in the public trough, they’ve been suing the government,” Scalia said. “They’ve been defending their clients against the government. (It’s) a different mind, a different mindset.”

I would love to have someone on the bench who’s built a career out of suing the government. Maybe someday a future president can put Alan Gura on the Court :)

Calling back to a great scene in a classic 80s comedy film:

You can’t have a discussion about self-defense in the United Kingdom without gun owners pulling Tony Martin out of their asses, but I often wonder how many gun owners have a deep understanding of the case, and what the facts were surrounding it. To understand why takes a bit of delving into self-defense law in both the UK and US. While I’m far from an expert on these topics, I think I do have enough rudimentary understanding to try to explain the background, and illustrate how the Martin case shows the differences in self-defense laws between the US and the UK.

Despite common belief, English self-defense laws have changed little since 1968.  You can see the current law here, which just clarifies the common law in England a bit. Self-defense in the UK can best be described as:

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

For contrast, you can find Pennsylvania’s law here. Pennsylvania justifies the use of force (not deadly force) under limited circumstances, and proscribes the use of deadly force except in extreme and dire circumstances.  American self-defense laws commonly make a distinction between the use of force and the use of deadly force, where as English law attempts to cover the whole spectrum of force through a reasonableness test.  If you use deadly force or force in most of the United States, you will still be subject to a similar reasonableness test, but a jury will be asked whether you acted reasonably, as a reasonable person, in terms of the circumstances under which you acted. In the United Kingdom, the jury will be asked whether the force you used was reasonable. In American law, that’s spelled out more distinctly. Pennsylvania, for instance, allows you to use whatever force is necessary, not  reasonable, though Pennsylvania requires that deadly force is only permitted in certain dire and extreme circumstances.

But despite the differences, to the extent that self-defense in danger across the pond, it’s largely because of shifting cultural attitudes away from the use of deadly force in self-defense. If you brought the self-defense laws of England over to the United States, practically speaking not much would change about self-defense, because most Americans believe that using deadly force on a home invader is reasonable, while Englishmen do not embrace the concept to such a great extent anymore. In addition, American jury verdicts require unanimity, whereas English juries do not require it. These factors promote differences in the kinds of cases that will be prosecuted in each of those respective jurisdictions. Prosecutors are going to respond to what they know they will get out of a jury. Practically speaking, even in a state like Pennsylvania, which does not have Castle Doctrine, a prosecutor is going to be reluctant to bring a case of a homeowner shooting a home invader because that case is highly likely to end in acquittal. He will take care to make sure the facts of the case show a serious wrong or error on the part of the actor, more care than his English counterpart, because his English counterpart only has to get 10 out of 12 jury members to believe that the homeowners use of force was out of proportion, and therefore not reasonable. While it’s still theoretically justifiable to use deadly force in self-defense in England, it is much more likely to result in prosecution there, because it’s much more likely to result in conviction. Self-defense has not been eradicated in the UK, but it has been weakened. Changing mores about self-defense are only part of the story. There’s a much larger story at play here, a big part of which is an increasing belief that jury trials themselves are anachronistic and outdated, as has been shown in the recent decision that juries in criminal trials are not strictly necessary in England and Wales.

It is in these two contexts that you have to consider the case of Tony Martin. To see details of the case, I would encourage folks to read this appeals ruling in the Marin case. From this you can get a hint of how the English legal system deliberates on the topic of self-defense:

So now we have the background on the appeal, whether Martin, who was found guilty of using excessive force against burglars, can be convicted of murder, or is merely guilty of manslaughter. But in the appeal, we have the facts of the case, and from that we can see where Mr. Martin likely got into trouble:

When he was interviewed under caution he gave an account to the police officers which was basically similar to that which he gave in evidence. He stated particularly that he wanted to make it clear that when he fired his gun he genuinely thought that his life was in danger. He asserted that he had never got to the bottom of the stairs and had gone no further than was necessary to see into the hallway; that was about as far as he dared to go.

He was cross-examined on the basis that his evidence and the account he had given in interview was untrue; that he had heard the two men approaching the house and had readied himself so that by the time they entered the breakfast room he was downstairs, lying in wait in the hall with his gun already loaded; and that he had stepped out into the breakfast room and fired three times with the intention of killing. Mr Martin denied this version; although he acknowledged the effect of the expert evidence about two of the shots at any rate, he insisted that he himself never got below halfway down the stairs, and that when he was interviewed he was clear as to where he had been

The problem Martin had was that the forensic evidence the Crown put forward did not match Martin’s statement, but rather matched up with those of the burglars.

Two areas of shot damage were found on the far wall of the breakfast room from the door at the foot of the stairs, one below the window out of which the two men exited, and one to its right in a door. All the experts agreed that these two areas of damage were not in the direct line of sight of a person standing anywhere on the stairs, so that the shots that caused that damage could therefore not have been fired from the stairs.

Under the circumstances described in this appeal, in many US jurisdictions, prosecutors would still have had statutory legal grounds to bring charges for murder (though there are a number where they would not). But statutory law is not necessarily the law as juries see it, since a jury and a prosecutor aren’t necessarily going to view the same set of circumstances the same way. I’m not certain that Martin would have been prosecuted in the US, because most juries are going to tend to acquit a homeowner for shooting a burglar, let alone two burglars, especially when the actor is an old man, and the burglars young men. I suspect had Martin had better representation from the start, and not given a statement to police without the advice of counsel, he might have been able to escape conviction in England as well. The Martin case isn’t as simple and straightforward as many imagine it to be, but in looking closely at the facts and rulings in the case, you can see clearly how the our respective cultures are parting in their treatment of self-defense.

Via RideFast, it looks like the California ban on possession of Body Armor by convicted felons has been tossed out by a California appeals court.  You can find the ruling here. It’s largely a problem of how California defines the term “body armor.”  The federal standard is probably better for those purposes, which can be found in 18 USC 921:

(35) The term "body armor" means any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire, regardless of whether the product is to be worn alone or is sold as a complement to another product or garment.

Now, in this case, the federal law might not apply, since the jacket in question was a flak jacket, and stated clearly it didn’t protect against small arms fire. But the federal definition only hinges on how the product is marketed, not on its actual capabilities. This would prevent an absurd result, such as possession of boiler plates by felons being unlawful, under the theory that they can stop some bullets, and could possibly be worn underneath clothing.

The big buzz happening now, which SayUncle and Dave Hardy are reporting on, is that the version of the Amendment that forces Amtrak to allow guns to be transported in checked baggage that was actually passed by Congress, and what was sent to President Obama for his signature are different.

As to what happens from here, I seemed to recall in arguments with tax protesters from years ago reading about Supreme Court case that addressed this very topic. The case is Field v. Clark, 143 U.S. 649 (1892):

The signing by the Speaker of the House of Representatives and by the President of the Senate, in open session, of an enrolled bill is an official attestation by the two Houses of such bill as one that has passed Congress, and when the bill thus attested receives the approval of the President and is deposited in the Department of State according to law, its authentication as a bill that has passed Congress is complete and unimpeachable.

So I’m pretty sure that it’s valid law until Congress fixes the problem.

Good news for those looking to snag a copy of Aiming for Liberty – it’s back in full stock at Amazon.

But, as I was looking (and laughing) at the “Customers Who Bought This Item Also Bought” section. It made me think that Amazon should have an “Authors Recommend More Reading” section. That would be interesting to see what authors who write great books suggest for further reading on a topic. Then I remembered, “Wait! Hottie Dave has given us just such a guide in a previous NRA mag!”

Here are the links for those who wonder:

1. Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie by Clayton Cramer – Come on, support another blogger! Actually, there’s news on this front. I didn’t realize that the paperback just came out in August. So now you can save some money and still grab a great read.
2. Supreme Court Gun Cases by Kopel, Stephen Halbrook, and Alan Korwin – Unfortunately, this one seems to be out of print, or at least Amazon isn’t carrying it much anymore. However, a related topic book that might be of interest is Brian Doherty’s Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment.
3. Target Switzerland: Swiss Armed Neutrality In World War II by Halbrook – From Kopel: “Halbrook’s book shows not only how the Swiss militia system deterred the recurrent threat of Nazi invasion, but also how the militia system created, in the long run, a culture of civic responsibility devoted to the preservation of liberty. It was Switzerland’s militia-centric culture of republican virtue that was the key reason why liberty survived in Switzerland, even as it was extinguished almost everywhere else in continental Europe.”
4. Origins and Development of the Second Amendment: A Sourcebook by the infamous David Hardy – Since the book is out of print, you might consider “In Search of the Second Amendment” instead.
5. Gun Control and the Constitution: Sources and Explorations on the Second Amendment edited by Robert Cottrol – Prof. Cottrol is at the top of my list of absolutely fascinating people. I don’t event need to actually hold a conversation with him, just listening to him always keeps my attention regardless of the subject. Alas, the book is only available directly from Amazon in the library binding which is $150.
6. The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government & an Armed Populace edited by David Young – Again, support yet another blogger! This has been cited in important cases, including several times in Heller. Again, not widely available, but some order information does appear on this page. One of the more entertaining sights I’ve seen though is David carrying his copy of the book with important arguments marked with multiple colors of post-its.
7. Targeting Guns: Firearms and Their Control by Gary Kleck – Kleck’s research is a staple of many pro-gun arguments. Yet how many people have actually read him? Heh, thought so.
8. To Keep and Bear Arms: The Origins of an Anglo-American Right by Joyce Lee Malcolm – Another recommended read to supplement Malcolm’s book is her sequel, Guns and Violence: The English Experience.
9. Death by “Gun Control”: The Human Cost of Victim Disarmament by Aaron Zelman – I don’t know much about it, so I’ll just quote Kopel: “The book examines the 20th century genocides in Turkey, the Soviet Union, China, Guatemala, Cambodia, Uganda and Rwanda, and details how each of them was preceded and facilitated by gun control programs to disarm the victims.”
10. The Global War on Your Guns: Inside the U.N. Plan To Destroy the Bill of Rights by Wayne LaPierre – Since you can order directly from NRA and support the fight in your purchase.  Two birds, one stone, yay!

Other suggestions Kopel includes: For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms by Cramer, Gun Laws of America by Korwin, Swiss and the Nazis: How the Alpine Republic Survived in the Shadow of the Third Reich and That Every Man Be Armed by Halbrook, The Second Amendment Primer: A Citizens Guidebook to the History, Sources, and Authorities for the Constitutional Guarantee of the Right to Keep and Bear Arms by Les Adams, Michael Moore Is a Big Fat Stupid White Man by Hardy, and Armed: New Perspectives on Gun Control by Kleck and Don Kates.

And finally, if you’re literally looking for a very Gunny Christmas, R. Lee Ermery’s site actually has Gunny dolls.

I promise, this wasn’t just an excuse to do an Amazon link dump.  I really did wonder about what authors would recommend to their readers other than other books they have written.  I assume if I was curious about such things that others would be, too.  Since I remembered Kopel’s article from a couple of years ago, but didn’t have a solid link list, I figured now was a good time to create one.  Finally, I have been busy making Christmas ornaments and reading of some chick lit, so I haven’t been doing much as much blog reading.  (Oh yeah, and I may have recently been perusing related titles in my search for Christmas gifts for both a gun nut and a history buff [the gun nut's dad].)

Dave Kopel talks about a law review article that will be appearing in the Widener Law Journal next year, coauthored with Clayton Cramer, on the history of Pennsylvania’s right to bear arms provision in the 1776 constitution. I covered a bit of the constitutional history of Pennsylvania’s right to bear arms provision back in September, for those who might have missed it. The 1776 version read:

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

Seems hard to believe that anyone could read “defence of themselves” as being purely the right to participate in a militia. While it’s not as direct and to the point as the 1790 and subsequent state constitutions, it’s still pretty crystal clear for anyone who hasn’t already made up their mind about there being no real individual right.

The Brady Center to Prevent Gun Violence brief was put online today, and can be read here. Joe Huffman already notes a serious contradiction within its fundamental argument. There are a few things that stood out to me as well.  Note that my criticisms here are a layman’s criticism, and can’t be taken as a serious view of the brief’s legal merit. But I will have a go. From the Brady Center brief:

Such firearms regulations are paradigmatic examples of the exercise of state “police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (internal quotation marks omitted). Because of the gravity of the states’ responsibility to protect public safety and welfare, they are generally afforded “great latitude” in exercising those police powers. Id. Firearm regulations are clearly an appropriate exercise of those powers, for the “promotion of safety of persons and property is unquestionably at the core of the State’s police power.” Kelley v. Johnson, 425 U.S. 238, 247 (1976).

Gonzalez v. Oregon was a case that involved the applicability of the Controlled Substances Act to Oregon’s “Death with Dignity” law. The context of the case had nothing to do with fundamental rights, and everything to do with the powers delegated to the Attorney General under the CSA vs. the state police power. Additionally, Kelley v. Johnson is a case from 1976 that had to do with whether a police officer had a fourteenth amendment right not to cut his hair per the regulations of his department. Forgive me if these cases don’t seem to shed any light over what kind of deference the state police power ought to be given when it comes to Second Amendment rights under the 14th Amendment.

The forceful governmental interests in protecting public safety and welfare that justify the states’ exer- cise of their police powers can also justify limitations on the exercise of constitutional rights. This is particu- larly true when the exercise of the right at issue in- volves conduct that affects the welfare of the commu- nity. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303-304, 308 (1940) (Although the First Amendment’s Free Exercise Clause protects both the “freedom to believe and freedom to act,” “[t]he first is absolute but … the second cannot be.”)

Cantwell was the case that incorporated the First Amendment’s free exercise of religion under the Fourteenth Amendment. But what’s really amusing is that the statute at question was whether the State of Connecticut could require a license for those soliciting for religious or charitable purposes. Get that? Whether they could license a fundamental right, and the answer was no. The Brady’s are even cherry picking the quote. The full quote from the ruling is:

The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the  second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.

Emphasis mine. Give a bit of a clearer picture as to what the court was saying? So clearly, applicable to the Second Amendment, one doesn’t have the right to rob, brandish, or threaten with a firearm, just because one has a right to keep and bear. But the power to regulate this “freedom to act” must not “unduly infringe on the protected freedom.” The Cantwell Court goes further to say:

Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The state is likewise free to regulate the time  and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.

That contrasts sharply with the Brady claim that regulations “such as licensing for gun dealers and owners” are among the types that should be upheld by the Courts in their quest to establish how we are to protect this important fundamental and enumerated right. This is just one brief aspect of the brief, but there is no doubt much more that could be picked apart. I will leave that for others who are more skilled an qualified on legal matters than I am.

With the Castle Doctrine having been heard by the Judiciary Committee yesterday, the media is starting to report on it. In the video linked here, you can see statements from John Hohenwarter, the NRA State Liaison for Pennsylvania, and Dan Pehrson, President of Pennsylvania Firearms Owners Association, as well as some of our opponents, who are against this change in the law.

But it’s really not so much of a change from the traditions of common law. In fact, to a large degree, it restores the common law concept of self-defense. If you go back to the authoritative source on the Common Law, Blackstone’s Commentaries on the Laws of England, you can find the common law source for many of the concepts enshrined in the proposed Castle Doctrine law:

Burglary, or nocturnal housebreaking, [...] has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; and invasion, which in such a state, would surely be punished with death, unless the assailant were the stronger [...] And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity[.]

Emphasis mine. You will certainly find no duty to retreat there. A homeowner could “kill the assailant with impunity” for the offense of burglary under common law. So where did the duty to retreat come into play? You can find that in Book 4, Chapter 14 of Blackstone’s Commentaries. The Common Law Blackstone describes divides homicide into three types, “justifiable, excusable, and felonious.” In the realm of justifiable homicide, Blackstone speaks of “advancement of public justice” in the following context:

In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it since declared by statue 24 Hen VIII. c. 5. If any person attempt to burn it, and shall be killed in such an attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the time of day, unless it carries with it an attempt of robbery also.

Under common law, a citizen had a justification for committing homicide in order to stop a forcible felony. There was no duty to retreat here. It was, in fact, considered a civic duty for a citizen to stop felonies from being committed. We don’t get to a duty to retreat until we get to Blackstone’s commentary on self-defense, which under common law is not a justifiable homicide, but an excusable homicide. Blackstone notes that common law makes a distinction between these two.

Homicide in self-defense, or se defended, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defense must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defense, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assault him [...] They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.

Emphasis mine. It is here you can see the common law origins of the Duty to Retreat. But notice this only applies to “sudden affray” or “sudden brawl” with someone who was otherwise not feloniously attacking a person. Blackstone implies there’s an element of the defender having been a willing participant in the “quarrel” or “affray.” When states started to codify common law into statutes, many erroneously adopted this aspect of common law for all justifiable homicides, even ones which were meant to prevent felony. Most state statutes on self-defense no longer make any distinction between justifiable and excusable homicide, though there are many states that allow for the use of deadly force to prevent commission of a forcible felony. Pennsylvania was one of the states that codified common law improperly, and created a duty to retreat in the face of felonious assault. Castle Doctrine is not really a radical change from the Common Law, but a restoration of it.

I had a nagging feeling that I had read about the topic of my previous post, intoxicated possession at home, before. Sure enough, managed to find this in Eugene Volokh’s Law Review article that discusses a framework for implementing the Second Amendment (Original post at Volokh.com here):

Many states bar possession of a firearm while intoxicated. Now a drunk man may need self-defense as much as the rest of us, and perhaps even more.385 But he is also especially likely to endanger innocent people—whether bystanders or people whom he mistakenly identifies as threatening him—and he is especially unlikely to successfully defend himself.386 And to the extent that the scope of the right to bear arms has historically excluded the mentally infirm, there seems to be little reason to treat those who are briefly mentally infirm as a result of intoxication differently from those who are permanently mentally infirm as a result of illness or retardation.387

A difficulty would arise if the law covered not just gun handling or carrying, but gun possession in the home while the homeowner is home and intoxicated. If every gun owner becomes a felon when he drinks too much at home, or must somehow find a friend who will soberly store the gun elsewhere on such occasions,388 then millions of people will be felons.389

It’s not entirely clear how this problem fits with the constitutional framework outlined above. My inclination is to say that while there may be a strong enough tradition of treating the mentally infirm as too unreliable to possess guns, and the tradition might extend to treating the temporarily mentally infirm as similarly too unreliable, the tradition likely doesn’t extend to a usually sober person’s possession of a gun in his home while he’s drunk. I would also think that requiring gun owners to refrain from normally accepted social drinking practices, to do all their serious drinking outside the home, or to temporarily move their guns outside their homes on party nights creates a substantial burden. But at the same time people can avoid or sharply decrease this burden by entirely or largely refraining from a behavior that, while legal and socially acceptable, is hardly necessary or praiseworthy; perhaps that should affect our judgment about the burden’s substantiality.

Fortunately we can largely avoid this issue, at least for now, since nearly all the statutes on the subject cover only “carry[ing]” or “personal possession.”390 The one exception that I’ve seen, the Missouri statute stating that a person is guilty of a crime if he knowingly “[p]ossesses or discharges a firearm or projectile weapon while intoxicated,”391 is likely just inartfully drafted: Though accompa- nying statutes use “possesses” broadly, likely broadly enough to include storing inside one’s home,392 this statute is labeled “Unlawful use of weapons,” and generally covers discharging, carrying, or brandishing a weapon (or setting a spring gun). I expect that Missouri courts would therefore narrowly interpret “possesses” in this statute, as covering only having on one’s person and not simply having a gun stored somewhere in the home.

You can read the Missouri Supreme Court decision here. Looks like Richard asserted it was overbroad, and the Court in this case refused to apply that doctrine, saying its use was limited to the First Amendment. It further refused to recognized the Second Amendment as incorporated, and proceeded with its analysis under the Missouri Constitution. The Missouri Supreme Court actually reversed and remanded based on standing to raise a constitutional issue given the facts in the case:

Although section 571.030.5 sets out a specific exception to the rule barring possession or discharge of a firearm while intoxicated, where the person is defending himself or others, Richard argues that the statute could be applied in a manner that effectively would prohibit an intoxicated person from possessing a firearm in the home for lawful self-defense. There is, at this point, no self-defense issue in this case. Richard has no standing to raise hypothetical instances in which the statute might be applied unconstitutionally. Lester v. Sayles, 850 S.W.2d 858, 872-873 (Mo. banc 1993). Richard’s claim must be analyzed under the facts of this case. Under the facts of this case at this stage of the litigation, his constitutional claims fail.

The circuit court erred in dismissing the state’s information charging Richard with violating section 571.030.1(5). The judgment is reversed, and the case is remanded.

So this ruling would appear to hinge exclusively on the facts in this particular case, rather than being a broad ruling that would affect all gun possession in the home while a person in the home was intoxicated. The Missouri Supreme Court doesn’t seem to want to consider that the statute is facially unconstitutional, but would seem to indicate some willingness to hear a constitutional challenge by someone who can raise a legitimate constitutional claim regarding self-defense in the home.

I’m still inclined to believe the statute is over broad. The exception for self-defense only applies if one is actively engaged in self-defense under 563.031, RSMo. The courts can certainly carve out an area of constitutionally protected possession here, but the Missouri Legislature should really have taken more care when drafting this law.

Dave Kopel is looking for some information:

I am asking for commenters who can point to similar cases in the U.K., United States, or elsewhere. For example, a student finds a knife on a playground at school; she picks it up and takes it directly to a teacher. She is expelled for possession of a weapon on school property. I’m not looking only for cases involving weapons.

The case that immediately came to my mind was the case of US v. Baker in the 10th Circuit. Mr. Baker saw a loaded speed loader for a revolver laying on the ground, which had been previously stolen. He took this item into his possession for fear children would find it, intending to turn it over to police. But police stopped him, and found it before he could turn it over. He asked that the jury be allowed to get an instruction about innocent possession, which the panel denied. Looking a bit further, in a case with very similar facts, this would also appear to be law in the 4th Circuit as well. There wouldn’t appear to be an innocent possession exemption to the felon-in-possession statutes, but one wonders whether a felon-in-possession could claim a necessity defense under some circumstances.

This blogger seems to think the Fort Hood tragedy was all about Tiahrt, but he’s wrong. What he bases that on would seem to be a section from this article:

In August 2009, Hasan purchased two firearms that he used to carry out the attack, but the government officials said that U.S. law does not permit them to connect that purchase information with the other intelligence they had.

This has nothing to do with Tiahrt, but to understand why that is, you have to understand what the Tiahrt does, and know something about our federal gun laws. I’m not going to automatically assume malice on the part of this blogger, but rather just attempt to point out the problems.

In order to buy a gun in this country at retail, as Hasan did, you have to fill out a ATF Form 4473 and be cleared by the National Instant Check System. Some states have additional forms, and other states are what are called “POC (Point-Of-Contact) States”, which means they use their own state level background check systems in lieu of the federal one. The dealer is then required to keep form 4473 on file. NICS, by law, does not keep records of people who pass the background check. The law only allows records to be kept of those who fail. There is no giant red siren that goes off at CIA or FBI if someone they are currently investigating tries to buy a gun. This isn’t hollywood.

In the event a gun is recovered at a crime scene, law enforcement can file a trace request with the ATF in order to find out who the last legal purchaser of that firearm was at retail. In order to do that, ATF starts with the manufacturer, who traces it to the distributor, who traces it to the retailer. The retailer then goes and fetches the 4473 they have on file, turns over the information and if necessary the form, and the trace is complete. Law enforcement can use this data any way that is necessary and proper within the course of a legitimate investigation of a crime, or in the prosecution of a criminal for violation of laws.

What Tiahrt does is prevent ATF from spending any funds to share the entire trace database with third parties not related to a bonafide criminal investigation. It also makes the trace database undiscoverable in a civil action, and inadmissible in a civil suit. Both ATF and the Fraternal Order of Police support this measure, something MAIG won’t tell you. It does not require that NICS records be destroyed. The requirement that NICS records be destroyed is not a funding matter, but is found in the United State Code, Title 18, Section 922(t):

(2) If receipt of a firearm would not violate subsection (g) or (n) or State law, the system shall -
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.

This is federal law that was instituted as part of the Brady Act, which established the background check system to begin with. Since Hasan had no criminal record, his background check was not saved by the system. The FBI hasn’t always been good about following the law on this, but it’s the law, and it has nothing to do with Tiahrt. MAIG’s assertion that Tiahrt requires NICS records to be destroyed is false. It’s the Brady Act itself that requires it.

Dave Kopel has an interesting piece in the Denver University Law Review on using blogs to bring law to the masses. Law is not a subject I knew much about until I started reading legal blogs, and then once I got into Second Amendment law, I devoured as much on the subject as I could read.

I think law is something that comes rather easily to engineers, since it’s basically just boolean logic system, but written in plain English. If (A || B || C) && !D && !E is true, you’re violating the statute. There is a system to it, and legal structures are less complicated than even simple microprocessors. Law also has obscure exceptions to generally given rules, which is something you also come across a lot in computer engineering. Computer engineers deal with bugs, just as judges must deal with poorly drafted legislation that yields absurd, clearly unintended results.

To a thought process that’s heavily oriented towards systems and logical structure, law provides, in many ways, much more interesting puzzles and conundrums. Unlike with circuits, where there’s just a right way and a wrong way to do things, law provides much more opportunity for philosophical exploration.

Eugene Volokh refutes a line of reasoning that tried to argue that guns rights could be limited only to the home by making first amendment analogy to obscenity laws. Having lost on the big question, those who disagree with the Second Amendment will now try to do their best to limit its scope. Folks like Eugene Volokh will be important for our side in fighting that battle within the legal community.

The ruling can be found here in PDF format. There’s a lot of things to say about it. For one, it gives you an idea of what one must go through to get all the required licenses to get a gun in New Jersey. It looks like the problem for this guy started when one of his references said something negative. Eventually they decided to go this route:

At the end of oral argument on the appeal, the trial court asked the parties whether they would have any objection to the court communicating directly with appellant’s former employers regarding his fitness to own a gun. The parties consented to this unusual procedure.

Apparently that didn’t go well for him either, as his previous associates said he was a nut job, and shouldn’t have a gun. This is a bad plaintiff to make a constitutional challenge, unfortunately, but probably the biggest risk to our gun rights is cases like this being moved forward. There are plenty of people that get kicked around by NJ’s system that would make far more sympathetic plaintiffs. But let’s get back to the case:

We conclude that the trial court’s conduct of the proceedings on the appeal from the denial of appellant’s application for a permit to purchase firearms did not conform with the requirements of procedural due process set forth in Weston. Therefore, the order affirming the denial of that application must be reversed and the matter remanded for a rehearing conducted in conformity with Weston.

So essentially the guy won, because the trial court did not follow the legal procedure in order to approve or deny permits. But the court also addressed the constitutional issued raised. The issue was one of vagueness, arguing that a previous New Jersey ruling upholding the “unfit persons” standard needed to be reconsidered in light of Heller.

However, the Court expressly indicated that its holding did not require invalidation of statutes that require a license to purchase or possess a firearm.

The Court did not require it because it was not at issue in the case. The New Jersey Superior Court has before it a direct challenge to an aspect of licensing. It’s not intellectually serious to so casually dismiss the constitutional issue, as if the Court in Heller had upheld licensing. Licensing wasn’t before that court, it is before this court. So you can’t act as if they upheld licensing. They did not.

The appellant in this case also challenged based on the time it took to issue a denial. Court in New Jersey have long held the statutory requirement that permit be issued within 30 days is effectively without meaning.

Moreover, we do not believe the Legislature could have intended that a person who is unfit to own a firearm would be able to obtain a firearms purchaser permit based on such an automatic approval. Our gun control laws have the purpose of “keeping firearms out of the hands of all dangerously unfit persons, noncriminal as well as criminal.” Burton v. Sills, supra, 53 N.J. at 94; see also Heller, supra, ___ U.S. at ___, 128 S. Ct. at 2816-17, 171 L. Ed. 2d at 678 (noting that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill”). This salutary purpose would be seriously undermined if a person could obtain a permit to purchase a firearm based solely on a court’s failure to conduct a hearing within the thirty-day period required by N.J.S.A. 2C:58-3(d).

Except Heller does not support what you specifically mentioned New Jersey’s gun control laws were meant to do, which was “keeping firearms out of the hands of all dangerously unfit persons, noncriminal as well as criminal.” Heller didn’t say “longstanding prohibitions against on the possession of firearms by noncriminals the police say are dangerous.” There’s an element of having to be convicted or adjudicated in the Heller language, which this man was not.

Pretty clearly the Superior Court was not interested in taking Heller seriously, and I can’t say I’m surprised to see that kind of attitude coming out of a New Jersey court. New Jersey’s gun laws are a disaster for lawful gun owners, but the unfortunate thing for Garden State gunnies is there’s a lower hanging fruit out there. The real danger is that inexperienced people will begin challenging New Jersey laws immediately, before we’ve had a chance to get that low hanging fruit.  After which we’ll have more tools at our disposal to go after New Jersey’s permitting system, among other things.

Laci the Dog, I’m pretty sure, should be called Laci the Troll, because I find it difficult to believe that a lawyer could be so obtuse on matters of law. As Mike W mentioned, her blog is relatively devoid of intellectual argument. This here is the latest justifying bans on semi-autos because they can be readily restored to fully automatic fire. She should stick to whatever law she practices, because firearms law is not her forte. The closest Supreme Court case we have on this topic is Staples v. US:

We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law abiding, well intentioned citizens to a possible ten year term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semiautomatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.”

The fundamental issue in Staples is whether or not Congress intended to eliminate the mens rea requirement that’s required in most crimes. The Court ruled that the government had to prove guilty intent when it came to possessing a semiautomatic firearm that was capable of firing automatically. In none of the Courts reasoning in Staples did they indicate that possession of any semi-automatic firearm was in violation of National Firearms Act. In fact, the majority rejected the argument that possession of a semi-automatic could meet the mens rea requirement. In fact, the Court in Staples makes the assumption that Congress did not intend to make semi-automatic firearms legally risky, let alone illegal.

So no, Laci, semi-autos aren’t covered by this law, no matter how much you wish it were so.

The case is Adames, et al v. Beretta USA Corp, and they are asking that the Supreme Court review the constitutionality of the Protection of Lawful Commerce in Arms Act, which immunizes manufactures, distributors, and dealers from certain types of lawsuits in federal and state court.  As SCOTUSBlog points out:

The narrower issue in the Illinois case is whether the specific lawsuit by the dead boy’s parents fits within an exception in the 2005 law that permits some cases to go ahead.  The broader issue is whether Congress has intruded too deeply into the way states craft their own laws, barring those that test issues arising under state common law, allowing at least some that test a state statute.  The petition quotes at length from congressional floor debates, with lawmakers blasting juries and judges for fashioning “novel” ways to attack the gun industry while showing respect for laws that emerge from state legislatures.

The tragedy that led to the Adames lawsuit in Illinois occurred eight years ago, when 13-year-old Billy Swan aimed and fired a Beretta pistol at a friend who had come over to play, Joshua Adames, who also was 13. The gun belonged to Billy’s dad, a Cook County sheriff’s deputy. Billy had taken out the gun’s clip before aiming it, believing that would make it harmless. A bullet that had remained in the gun’s chamber killed Joshua.

Under standard product liability law, manufacturers are liable for defects in design.  Typically this requires a manufacture to make a product more safe if they can possibly do so, without impacting its function.  The problem is, the function of a gun is to send a chunk of metal flying at very high speed out the barrel if you pull the trigger.  In this case, a gun was pointed at someone, and the trigger was pulled.  That the user did not know how to unload a firearm properly is not the fault of the manufacturer.

No doubt the plaintiff will claim a simple change in the design to include a magazine disconnect safety would have made the firearm safer without impacting the function.  But this is not really the case, especially for a police officer, as there are situations where you want the round in the pipe to go off even if the magazine is out.  Magazine disconnects are also dangerous in and of themselves, for reasons we’ve covered on here.

But the question of whether PLCAA preempts such lawsuits is an interesting one.  If you look at the language of the act, it gives this exception to the lawsuit immunity:

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage

I would say if this was just a standard argument of defect in design, this exception would apply.  But it’s the last part on “caused by a volitional act that constituted a criminal offense.” that probably makes the Adames unable to claim this exemption, because pointing a gun at someone and pulling the trigger is a criminal act, even if unintentional.  In fact, the Illinois Supreme Court recognized this, and restored the summary judgement of a lower court in favor of the defendant (Beretta).

The petition for cert is essentially asking to the Court to find the PLCAA unconstitutional under the 10th Amendment, which I think is a bit of a hail mary argument, considering preempting state tort actions that affect the interstate market in a product is pretty clearly within Congress’ commerce cause powers.  But they go further to argue along these grounds:

Congress’ clearly expressed preference for legislative determinations of grounds for liability over judicial applications of the common law in the PLCAA dictate to the States how its law must be made, at least when liability is to be assessed against the firearms industry. 15 U.S.C. § 7903(5)(A)(iii) (creating an exception to the immediate-dismissal dictate so long as the lawsuit is authorized by certain legislative actions); see also 15 U.S.C. § 7903(2)(a)(7) (finding stating that liability actions against gun manufacturers and dealers could only be imposed “by a maverick judicial officer or petit jury [and] would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States”) (emphasis added); Id. at § 7901(a)(8) (finding stating that plaintiffs in the actions intended to be preempted were “us[ing] the judicial branch to circumvent the Legislative branch”).

They are basically arguing that Congress only intended to usurp state judicial authority rather than legislative authority citing this exception as evidence:

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product

But this section also includes two examples that give some idea of what Congress meant, and I don’t think it’s favorable to the plaintiff in this case.  I think Congress did intend to preempt state laws that would hold gun manufacturers accountable for third party criminal acts.  What Congress did not intend to do is preempt state law regarding the sale and marketing of firearms.  I think the Illinois Supreme Court got it right.  I expect the Supreme Court will decline to hear this case.

Ry points out that ATF does not seem to have the pin & weld method in their April 2009 handbook, meaning hundreds of thousands, possibly millions of gun owners out there could have just become instant felons!  ATF has considered pinned and welded extensions to a barrel to be part of the barrel for purposes of determining length under the National Firearms Act.  This Bushmaster, for instance, would be a Short Barreled Rifle under this new rule, and would fall under NFA requirements.  Current owners would have to register them with ATF as SBRs, or face prosecution.

Typically, something like this is not as simple as ATF making a change to its handbook.  You have a few different federal laws that govern the changing of rules.  Namely the Federal Register Act of 1935 and the Administrative Procedure Act of 1946, along with a few others.  A quick search of the Federal Register doesn’t show any rule change about pinning and welding barrels, but the Code of Federal Regulations also contain nothing the stipulates flash hiders, brakes, or other items pinned and welded to the end of a barrel count toward barrel length.

This means that the pin and weld technique was an “agency determination” rather than a rule or regulation.  ATF is infamous for preferring to exercise it’s regulatory power this way rather than use rule making, which is a more controlled and predictable process.  Regulated persons or entities can challenge an agency determiniation, in which case the courts will review under the standard that the decision was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”  There’s no set standard for what is arbitrary or capricious, but typically it would mean that ATF’s determiniation has no basis in law.  ATF does not have a good track record with its determiniations.  See Vollmer v. Higgins, which was an NFA case:

It is true that the National Firearms Act covers machineguns, as well as short-barrelled rifles and shotguns, even if they have been modified, so long as they can be “readily restored.” 26 U.S.C. Sec. 5845(b), (c), & (d).5 Neither the Act nor the Bureau’s regulations, however, define “readily restored.” See 26 U.S.C. Sec. 5845; 27 C.F.R. Sec. 179.11. We do know that, in the Bureau’s view, “firearms” subject to the Act may be excluded from coverage if they are “[a]lter[ed] by removing the feature or features that cause[d] the weapon to be classified as an NFA firearm.” FIREARMS ENFORCEMENT PROGRAM, ATF Order 3310.4B p 83(e)(2), at 43 (Feb. 8, 1989). Alterations of this sort include welding an extension onto a rifle or shotgun barrel; and welding closed a slot on certain handguns to prevent the attachment of a shoulder stock. Id. p 83(f)(2) & (4), at 43. The Bureau must believe that if welding removes a critical feature, the firearm cannot be “readily restored” and it therefore can be removed from the firearm classification. In the case of the modified HK receiver, the critical features were the lack of the attachment block and the presence of a hole. Vollmer’s welding the attachment block back onto the magazine and filling the hole it had drilled do not appear to be significantly different from the operations the Bureau describes as sufficient to remove a short-barrelled rifle or shotgun from the category of “firearm.” It would seem to follow that Vollmer’s operations thus removed the HK receiver from the category of machinegun.

So I think we would have room to challenge ATF’s determiniation in court.  For people who already own these firearms, the legal hazard was always there, because you’re possessing a firearm in a legal grey area in regards to barrel length.  Determinations don’t really mean crap if an ambitious AUSA wants to try to stick it to you.  But if I were to put money on it, ATF’s determiniation won’t hold up in court, especially if they try to argue that a millions of gun owners suddenly being made criminals isn’t really a problem, considering they are still allowing for extension by other methods that are really no better than pin and weld.

Do the anti-gun folks still want to come argue that the gun industry is unregulated, and guns are less regulated than teddy bears?