The Volokh Conspiracy

So states a Detroit Free Press op-ed headline. Here’s an excerpt from the op-ed itself:

Michigan is one of 10 states in which gun deaths now outpace motor vehicle deaths, according to a study released Thursday by the Washington, D.C.-based Violence Policy Center.

But don’t expect the from-my-cold-dead-hands crowd to embrace the center’s conclusion that the disparity has everything to do with federal regulation — extensive and wildly successful in the case of motor vehicles, and virtually non-existent in the case of firearms.

“The idea that gun deaths exceed motor vehicle deaths in 10 states is stunning when one considers that 90% of American households own a car, while fewer than a third own firearms,” VPC Legislative Director Kristen Rand said. “It is time to end firearms’ status as the last unregulated consumer product.” …

“Motor vehicle deaths are on the decline as the result of a successful decades-long public health-based injury prevention strategy that includes safety-related changes to vehicles and highway design informed by comprehensive data collection and analysis,” a release accompanying the VPC study said. “Meanwhile, firearms are the only consumer product not regulated by the federal government for health and safety.”

But wait: The number of accidental gun deaths in Michigan in 2009 (the most recent year reported in WISQARS) was … 12, compared to 962 accidental motor-vehicle-related deaths. 99% of the gun deaths in Michigan that year consisted of suicides (575) and homicides (495).

Now say what you will about whether some gun control laws might reduce suicides or homicides, but it’s extremely unlikely that any “safety-related changes” or “regulat[ions] … for health and safety” are going to eliminate all but a tiny fraction of those suicides and homicides, which are overwhelmingly intentional acts by people who are willing to kill and are unlikely to be stopped by “regulat[ion] by the federeal government for health and safety.” Yet curiously the op-ed says nothing about how few of the gun deaths were accidental, and how few homicides or suicides could be prevented by “safety-related changes” along the lines of the safety regulations imposed on cars.

This also helps explain, I think, why gun rights supporters are so worried about “health and safety” proposals. Precisely because such proposals are so unlikely to have much of an effect, the gun rights supporters naturally assume that the backers of the proposals aren’t really after modest car-like “regulat[ions] … for health and safety,” but are actually trying to bring about much more aggressive sorts of gun restrictions.

From today’s State v. Brek (N.J. Super. Ct. App. Div. May 22, 2012):

In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. Vice–President Biden had recently flown into the airport, and President Obama was scheduled to arrive the next day on Air Force One.

Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President’s plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant’s work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.

Within hours, law enforcement personnel questioned defendant and, with his consent, searched his residence. There, law enforcement discovered and seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition, as well as permits and storage cases. A record check revealed that one of the guns had been stolen from Alabama. Defendant was arrested and charged with terroristic threats against the President, N.J.S.A. 2C:12–3b, receiving stolen property, N.J.S.A. 2C:20–7a, and unlawful possession of hollow point bullets, N.J.S.A. 2C:39–3f(1). A restraining order was issued barring defendant from any contact with the President or his family.

Defendant is from a family of hunters and had an extensive and valuable gun collection. With the exception of one gun which, unknown to defendant, was reportedly stolen from Alabama, defendant legally possessed the other guns and had the appropriate firearms permits. No weapon was found in defendant’s possession when he was arrested at his place of employment….

On November 12, 2009, defendant pled guilty to two counts of disorderly persons harassment against the two individuals who heard defendant’s conjectures at the lunch truck, N.J.S.A. 2C:33–4. Both weapons charges were dismissed. At that time defendant requested the return of all property seized from his home, but the prosecutor refused.

On July 12, 2010, defendant moved before the trial judge who had taken his guilty plea for an order compelling the State to return his property, except for the hollow point bullets and stolen rifle. The State filed a written opposition to the motion, which failed to cite any statutory, regulatory or precedential authority. At the hearing on the motion, the assistant prosecutor “concede[d] that after thorough investigation by the federal authorities, the Port Authority police and my office, that we did not see this as a major threat.” The prosecutor also acknowledged the two mental health evaluations that defendant had in prison, which “the State concede[d] he passed.” Nonetheless, based upon “the whole totality of the circumstances,” the State opposed the return of the weapons. In denying defendant’s motion, the trial judge, without providing any legal basis, ruled:

[W]e live in a very different time [since September 11, 2001] and in a very different world; we don’t engage in certain conduct involving words or acts that can be interpreted as threats to our elected officials, threats to our citizens, threats to the health, safety and welfare of everyone. And that phrase, or concept, the public health, safety and welfare, I think trumps everything…. Mr. Brek’s character is not at issue. At no time has the State — at least to my knowledge — brought … [Mr.] Brek’s character into this…. I believe that the public health, safety and welfare of our citizens does come into play here, and accordingly, I am going to deny Mr. Brek’s application for the return of his weapons.

This appeal followed.

Guess how the New Jersey Superior Court Appellate Division ruled, and then read on.

Continue reading ‘Gun Forfeiture and the Defendant Who “Remarked How Easy It Would Be for Someone to Shoot the President”’ »

My co-authored law school textbook Firearms Law & the Second Amendment; Regulation, Rights, and Policy (Aspen Casebook Series) is currently battling with Ted Nugent’s God, Guns & Rock’N'Roll for #1 in Amazon.com sales rankings in the “Gun Control” category. We held the lead a few hours ago, but The Nuge has clawed his way back to #1 in the last hour.

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract:

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Readers interested in more detail on the role of gun rights and gun control in period leading up to the Revolution, and in the remainder of 18th century America, are encouraged to read Stephen Halbrook’s excellent book The Founders’ Second Amendment, which is the result of decades of work by Halbrook in finding primary sources of the period, including newspapers, correspondence, and diaries.

On a related topic, some readers might also be interested in my 2005 article The Religious Roots of the American Revolution and the Right to Keep and Bear Arms, detailing the role of Congregationalist and other ministers in inciting the Revolution, by explaining collective self-defense of natural and civil rights as a moral and religious obligation.

From United States v. Huitron-Guizar (10th Cir. May 7, 2012) (thanks to Prof. Doug Berman (Sentencing Law & Policy) for the pointer):

We applied “intermediate” scrutiny in Reese, 627 F.3d at 802, which involved a Second Amendment challenge by a citizen to 18 U.S.C. § 922(g)(8), the provision forbidding firearms to those subject to a domestic-protection order. If we assume that an illegal alien like Mr. Huitron-Guizar, who has been here for decades and nowhere else, is entitled to the lawful exercise of this enumerated right, and if we observe that the law here not only burdens but eliminates the right by placing, on a class of perhaps millions, a total prohibition upon possessing any type of gun for any reason, “intermediate” scrutiny would seem to apply. Id., at 800 (comparing burdens imposed by the various § 922 restrictions). Under this standard a law is sustained if the government shows that it is “substantially related” to an “important” official end. Id. at 802.

The “principal purposes” of the Gun Control Act of 1968 are to “make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, and to assist law enforcement authorities in the States and their subdivisions in combating the increasing prevalence of crime.” S.Rep. No. 90-1501, at 22 (1968). The alien-inpossession ban was incorporated from a predecessor statute by the 1986 Firearm Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449, likewise with purpose of keeping instruments of deadly force away from those deemed irresponsible or dangerous. S.Rep. No. 98-583, at 12 (1986).

Congress may have concluded that illegal aliens, already in probable present violation of the law, simply do not receive the full panoply of constitutional rights enjoyed by law-abiding citizens. Or that such individuals, largely outside the formal system of registration, employment, and identification, are harder to trace and more likely to assume a false identity. Or Congress may have concluded that those who show a willingness to defy our law are candidates for further misfeasance or at least a group that ought not be armed when authorities seek them. It is surely a generalization to suggest, as courts do, see, e.g., United States v. Orellana, 405 F.3d 360, 368 (5th Cir. 2005), that unlawfully present aliens, as a group, pose a greater threat to public safety—but general laws deal in generalities. The class of convicted felons, too, includes non-violent offenders. See McCane, 573 F.3d at 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (suggesting that Heller’s “dictum” should not foreclose challenges to the felon-dispossession law in § 922(g)(1)). The law applies with equal force to those who entered yesterday and those who, like Mr. Huitron-Guizar, were carried across the border as a toddler. The bottom line is that crime control and public safety are indisputably “important” interests.

If the right’s “central component,” as interpreted by Heller, 554 U.S. at 599, is to secure an individual’s ability to defend his home, business, or family (which often includes children who are American citizens), why exactly should all aliens who are not lawfully resident be left to the mercies of burglars and assailants? That must be at least one reason behind the wave of challenges to § 922(g)(5). But courts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order.

Here’s the Tenth Circuit’s reasoning in Reese explaining why intermediate scrutiny was the proper test:

The initial question we must address is whether intermediate scrutiny is also appropriate for the statute challenged by Reese. To be sure, § 922(g)(8) is arguably more restrictive than § 922(k), the statute at issue in Marzzarella, in that it prohibits the possession of all types of firearms. On the other hand, however, § 922(g)(8) is less restrictive than § 922(k) in that it applies only to a narrow class of persons, rather than to the public at large. And, in that regard, § 922(g)(8) is substantially similar to § 922(g)(9), the statute at issue in Skoien. Specifically, both statutes prohibit the possession of firearms by narrow classes of persons who, based on their past behavior, are more likely to engage in domestic violence. Based upon these characteristics, we conclude that § 922(g)(8), like the statutes at issue in Marzzarella and Skoien, is subject to intermediate scrutiny.

UCLA Professor David Hayes-Bautista explains the 1862 origins, an all-American holiday created by Mexican-Americans, who saw the Mexican victory against the French attempt to destroy Mexican democracy as another front in the Union’s battle against the Slave Power.

The Franco-Mexican war continued until 1867, and American firearms played an important role in the liberation of Mexico.  When the French occupied Mexico City,  Mexican President Benito Juárez set up a resistance movement in northern Mexico. There, he ordered 1,000 Winchester Model 1866 carbines in .44 caliber, to be delivered to Monterrey, along with 500 cartridges per gun. The Juárez forces paid $57,000 in silver coin. “R.M.” – for “Republic of Mexico” – was inscribed on the frames of the carbines. Today, “Juarez Winchesters” are very valuable collectors items.

That’s what Kentucky statutes provide, and today the Kentucky Supreme Court applied this rule in Mitchell v. University of Kentucky (Ky. Apr. 26, 2012). There was something of a complication because the defendant was a university, and state law provides universities with generally broad authority to restrict weapons on their property. But the court concluded that the statutory provisions allowing employees to lawfully store guns in their cars is an exception from that broad university power. Michael Mitchell’s wrongful firing lawsuit against the university can therefore go forward.

The relevant Kentucky statutory provisions, by the way, are these:

§ 527.020(4) … No person or organization, public or private, shall prohibit a person licensed to carry a concealed deadly weapon from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in compliance with the provisions of KRS 237.110 and 237.115. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction….

§ 527.020(8) … No person or organization, public or private, shall prohibit a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in accordance with the provisions of this subsection. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction….

§ 237.115(1) Except as provided in KRS 527.020, nothing contained in KRS 237.110 [the general concealed carry licensing provision -EV] shall be construed to limit, restrict, or prohibit in any manner the right of a college, university, or any postsecondary education facility, including technical schools and community colleges, to control the possession of deadly weapons on any property owned or controlled by them or the right of a unit of state, city, county, urban-county, or charter county government to prohibit the carrying of concealed deadly weapons by licensees in that portion of a building actually owned, leased, or occupied by that unit of government.

The court concluded that the “[e]xcept as provided in KRS 527.020″ did limit the university’s to fire employees for possessing guns in their cars; for more on this, please see the opinion.

UPDATE: My colleague Prof. Stephen Bainbridge speaks out against the Kentucky statute, and nearly all other laws that restrict employees’ and employers’ ability to sever their relationships at will.

In yesterday’s Fisher v. Kealoha (D. Haw. Apr. 19, 2011), the district court let plaintiff proceed with his Second Amendment claim, in a way that suggests plaintiff might well win. In December 1997, Kirk Fisher pled guilty to two counts of misdemeanor “harassment” of his wife (who is apparently still his wife), and was placed on probation for six months. As part of his probation, he had to surrender his guns, but after the probation was over, the court ordered that the guns be returned, so long as that was consistent with Hawaii law and federal law; and the police department did indeed return them.

But in Fall 2009, Fisher asked for a license to buy another gun — Hawaii requires such a license — but the police department said no, and indeed ordered him to dispose of his current guns. Fisher, the police department reasoned, was forbidden from possessing a gun by Haw. Rev. Stat. § 134-7 and 18 U.S.C. § 922(g)(9). Hawaii law forbids gun possession by anyone who has been convicted of “any crime of violence,” including misdemeanors (Hawaii law). Federal law forbids gun possession by anyone who has been convicted of any misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” against a spouse, cohabitant, or child.

Now here’s the twist: The Hawaii harassment statute, which Fisher had violated, covers any situation where a person “with intent to harass, annoy, or alarm any other person … [s]trikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact.” This, the court held, includes not just violent touching but “any slight touching of another person in a manner which is known to be offensive to that person.” So many harassment convictions might be based on “violence” or “physical force,” but some might be based based on just an offensive touching that would be short of physical force, such as spitting or jabbing with a finger during an argument (to use a hypothetical from a Ninth Circuit case dealing with a similar statute).

To decide where such state statutes into a federal scheme, federal courts generally use the “modified categorical approach“: They consider whether the statutory text “has, as an element, the use or attempted use of physical force” (that’s the “categorical” part) coupled with looking at the charging documents or plea agreements that make clear what actually happened (that’s the “modified” part). It’s not enough that the statute usually covers violent conduct, or that there’s now evidence that the conviction was based on violent conduct; the court is limited to the text of the statute and the particular documents setting forth the earlier charges or the defendant’s past admissions pursuant to a plea deal.

Here, the court held, the harassment statute does not qualify. And, the court noted, the “modified” part of the “modified categorical” approach would only kick in if the government could point to “the written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented, which might shed some light on the nature of the underlying conduct for which Plaintiff was convicted.” And, at this stage of the proceedings, “the parties have not provided such documents to the Court,” “and it is questionable whether they are still available.” Fisher’s demand for an injunction ordering the return of his guns can go forward. And, based on the court’s reasoning, Fisher would presumably win unless the government can find some of those documents.

So this is a limited decision, but still a noteworthy one: The court seems to be saying that denying a person a gun based on a general “harassment” misdemeanor conviction, without a showing that the conviction involved violence, violates the Second Amendment (at least given the current Hawaii and federal statutory scheme, which is limited to crimes of violence). Note, though, that, as the court points out, several circuits — unlike the Ninth Circuit and several others — take the view that § 922(g)(9) applies to any conviction for an illegal offensive touching of a spouse, cohabitant, or child, and not just to convictions for violent touching, see note 26 of the opinion; it’s not clear what result the court would have reached had the statute indeed been read as broadly in the Ninth Circuit.

Yesterday the Canadian Senate voted 50-27 to abolish the long gun registry. Bill C-19 received unanimous support from Conservative Senators, and some support from Liberals. The bill had previously passed the House of Commons. It became the law of the land today, with the Royal Assent of Canada’s Governor-General.

The bill does not change Canada’s registration system for handguns, which has been in effect since the 1930s. Nor does it change the registration system for certain long guns which have been classified as “prohibited” or “restricted” weapons. Likewise unchanged is Canada’s complicated and burdensome system for licensing gun owners, which was created by a Liberal government in the 1990s.

The registration changes, however, are monumental. Registration records for seven million ordinary long guns are to be destroyed. The government of Quebec has announced that it while file suit to attempt to obtain custody of the 1.5 million registration records pertaining to citizens of Quebec.

Ever since the regime of Prime Minister Pierre Trudeau in the 1970s, gun control in Canada has been primarily a culture war campaign against the “masculine” values of rural Canada, and as a means of demonstrating the dominance of Canada’s urban New Class.

To this day, the foremost public justification for all forms of gun control is Gamil Rodrigue Gharbi (who changed his name Marc Lépine). Gharbi/Lépine was the son of an alcoholic, wife-beating, child abuser who had immigrated to Canada from Algeria. In 1989, he murdered 14 women (13 by gunshot, one by stabbing), and wounded 8 women and 4 men in the engineering building of a school affiliated with the University of Montreal. An incompetent response by police dispatchers to the 911 calls gave Gharbi/Lépine the opportunity to murder at leisure.

In The Montreal Massacre (gynergy books, 1991), Quebec feminists describe their outrage, and demanded the rehabilitation of masculinity, whose (allegedly) misogynist pro-death culture is based on aggressive sports, violent entertainment, and the penetration of women during sexual intercourse.

Canada’s leading public proponent of gun control, Prof. Wendy Cukier, had previously proclaimed that in Canada, gun control is a one-way street; once restrictions are imposed, they are never lifted. This was never entirely accurate; popular demand forced the removal of some long gun restrictions that had been imposed during the World Wars. But the removal of a major peacetime anti-gun law truly does signal a new era in Canadian right to arms politics.

Efforts to repeal the long gun registry lasted 17 years, and they finally succeeded in part because the majority of Canadians have concluded that the registry was a colossal waste of money,  of no value in crime control, and a pointless invasion of privacy.

Globally speaking, the repeal of the registry is the most important gun policy event of the last year. As the United Nations works towards a final draft of an Arms Trade Treaty this year, the Canadian public’s rejection of registry adds to the challenges of the global gun control organizations which want the Treaty to include gun registration requirements.

An article in Forbes profiles Saskatchewan MP Garry Breitkreuz, whose tireless work was essential to the repeal.  Breitkreuz, incidentally, had started out as a supporter of registration, and changed his mind after studying the evidence about whether it would help reduce crime. Kudos also to the Canadian Sport Shooting Association, to Canada’s National Firearms Association, and especially to the late David Tomlinson, who passed away in 2007, and who for over three decades was the Founding Father and leader of Canada’s right to arms movement.

Canadian gun owners know that much more needs to be done to undo the damage caused the kulturkampf which Trudeau began, and which has burdened Canadians with laws that do nothing to enhance public safety, but whose purpose and effect is to harass and persecute law-abiding gun owners. Bill C-19 is a good first step, and a monumental one.

Illinois basically bans private citizens from carrying guns outside the home in any way that’s useful for immediate self-defense. Shepard v. Madigan (S.D. Ill. Mar. 30, 2012), has just upheld this ban; other courts, in California, Illinois, Maryland, and Massachusetts have done the same, though the federal district courts in Maryland and North Carolina, as well as an appellate court in Puerto Rico have held the opposite.

The district court reasoned that even a total ban on carrying guns for self-defense outside the home should be judged under “intermediate scrutiny,” and the ban passes because “[t]he State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm.”

Two thoughts about the decision:

1. The court doesn’t discuss whether — as the Maryland federal district court recently suggested — intermediate scrutiny can only be satisfied by regulations of the carrying of guns outside the home, rather than by total prohibitions. To quote, the Maryland district court,

A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.

2. The court also says that, as to “laws that impact the right to bear arms outside the home,” “the Seventh Circuit has determined that intermediate scrutiny would apply. See, Ezell, 651 F.3d at 703-04 (collecting cases applying intermediate standard in the Third, Fourth, and Tenth Circuits).” But I don’t see how that is a correct reading of Ezell v. City of Chicago (7th Cir. 2011). The cited passage from Ezell does say,

Continue reading ‘District Court Upholds Illinois Total Ban on Carrying Guns’ »

The provision now reads, “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person”; SB 303 would propose a constitutional amendment that would instead say,

The right of each citizen to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction shall be subject to strict scrutiny.

For more on what “strict scrutiny” might mean in this context, and on other possible constitutional tests, see Eugene Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA Law Review 1443 (2009). Thanks to Bill Rafferty (Gavel to Gavel) for the pointer.

I don’t think we blogged about the case, but it got a good deal of attention a couple of years ago; for more, see this Reason piece. Today, a New Jersey appellate court reversed two of Aitken’s three convictions (for unlicensed transportation of a gun and for possession of a high-capacity magazine), and affirmed the third (for possession of hollow-point bullets). A retrial is possible on the unlicensed transportation count, but Governor Christie’s commutation of Aitken’s sentence a while ago “precludes imposition of any custodial sentence following such a retrial.”

The case is today’s Fletcher v. Haas (D. Mass. Mar. 30, 2012), and it holds that the ban violates the Second Amendment because “permanent resident aliens are among ‘the people’ for whom the Second Amendment the United States Constitution provides a right to bear arms.”

Bateman v. Perdue (E.D.N.C. Mar. 29, 2012) involves a North Carolina law that bans “transport[ing] or possess[ing] off [one's] own premises any dangerous weapon” when a state of emergency has been declared. “Due to natural disasters and severe weather, states of emergency are declared with some frequency in North Carolina. In 2010, for example, the Governor … issued four statewide emergency declarations and one declaration covering a fifteen-county area ….” There were also at least six local states of emergency declared. All five of these 2010 states of emergency were in response to weather conditions, and the frequency of such declarations may stem from the fact that “[a] state of emergency must be declared in order to qualify for federal disaster assistance.”

The court concluded that:

1. The right to keep and bear arms extends to carrying outside one’s property, for self-defense and for other reasons. The law interferes with the exercise of this right.

2. The law also interferes with the exercise of people’s right to defend themselves in their homes, because it bars people from buying weapons and them transporting them to their homes.

3. The law must therefore be considered under strict scrutiny, because it isn’t just limited to high-risk gun possessors, to particular kinds of guns, or particular manners or times of carrying guns, and because it interferes with getting guns even for home defense (though, as I noted, the court also concluded that carrying guns for defense outside the home is also generally constitutionally protected).

4. The law fails strict scrutiny, because they “excessively intrude upon plaintiffs’ Second Amendment rights by effectively banning them … from engaging in conduct that is at thev ery core of the Second Amendment at a time when the need for self-defense may be at its very greatest” and therefore aren’t narrowly tailored to serve the government’s compelling interest in public safety.

Note that, as is often the case, the application of “strict scrutiny” can be quite rights-protective or not depending on what one understands “narrow tailoring” to mean. If narrow tailoring requires some plausible reason to believe that the law will on balance help prevent crime and injury, then that requirement will very often be satisfied. If it requires social science proof that the law will on balance help prevent crime and injury, then that requirement will rarely be satisfied, especially in situations such as this: There will rarely be solid studies of the effects of this particular kind of law.

And if, as here, “narrow tailoring” requires that the law not “excessively intrude” on rights, then that might be something like a rule of per se invalidation (at least as to very heavy burdens on the right): The premise of such an approach is that, regardless of whether the restrictions will reduce crime and injury, it is still unconstitutional if it interferes with the core of the right, since the constitutional recognition of the right expresses a judgment that the right must be protected despite the threat it may pose to compelling government interests. For more on all this, check out my Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009).

Congratulations to Alan Gura, the lawyer who won Heller and McDonald, on his victory in this case, and to the Second Amendment Foundation, which helped file the case.

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.

Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.

If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.

3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.

Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the  legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.

Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.

4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”

Let’s put aside the fact that, however ingenious the progressive professoriate’s  tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.

Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.

5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.

Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have  determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.

ABA members who are interested in this subject might want to join:

The Civil Rights Litigation Committee of the American Bar Association (ABA) Section of Litigation has formed a Second Amendment Subcommittee.

Subcommittee Goals/Objectives & Ways You Can Get Involved.

• Case/Law Updates: If you hear of a Second Amendment-related case decision or major development in Second Amendment law, send us a write-up about it. Your update will be emailed to the subcommittee’s membership and posted on the Civil Rights Committee page. These updates do not need to be long. You can do them case brief style or more like an opinion piece.

• Conference Calls & Events: The Subcommittee plans to hold conference calls every 2-3 months or so to discuss the current status of Second Amendment Jurisprudence and recent developments. Additionally, the subcommittee plans to be represented at relevant events (e.g., ABA conferences, etc.).

• Increased Membership: Another goal of the subcommittee is increased membership. If you have not done so already, please join the ABA and the Section of Litigation Civil Rights Committee officially. We would like to be able to show the ABA that there is a great interest in Second Amendment civil rights. We encourage everyone to join and spread the word to anyone who is interested in the Second Amendment or supporting civil rights in general! …

• JOIN! Again, it is important to have increased membership for the subcommittee. The more members that the subcommittee has officially, the more likely the subcommittee is to remain next year, and the year after that, etc. Eventually, we would like the subcommittee to become a full-fledged committee.

• CONTACT [SUBCOMMITTEE CHAIR BOBBIE] ROSS TO PARTICIPATE. If you are interested in participating in any of the aforementioned ways, and/or have any questions or need any more information, please contact Ms. Ross.
Email: rossbk@gmail.com
Profile: http://www.linkedin.com/profile/view?id=10372665

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say. Continue reading ‘Florida’s Self-Defense Laws’ »

Last week’s State v. Christian (Ore. Ct. App. Mar. 21, 2012) considered a Portland, Oregon that provides,

It is unlawful for any person to knowingly possess or carry a firearm, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm [with a bunch of exceptions, including for people with concealed carry licenses -- Oregon is a shall-issue state].

Jonathan Christian, who was prosecuted for violating the ordinance, challenged it on overbreadth grounds, arguing that it covered a substantial amount of constitutionally protected conduct. (Such challenges are apparently allowed in right to bear arms cases under the Oregon Constitution, much as they are allowed in First Amendment cases.) Oregon courts had in the past recognized that the right to bear arms including a right to carry weapons in public, though an Oregon Court of Appeals decision had upheld a ban on carrying loaded guns in public. And the 4-judge dissent viewed this as a dispute about the right to carry loaded guns in public, concluding that the Oregon Constitution does protect such a right. (Judge Edmonds’ dissent, joined by Chief Judge Brewer, goes into this in great detail as a historical matter, concluding that this right was generally recognized in American law at the time the Oregon Constitution was adopted in 1859.)

But the 5-judge majority takes a different approach: The ordinance, the majority says, isn’t a ban on loaded carry — it’s a ban only on loaded carry that creates a known and substantial risk to the public beyond “a risk that would inhere in using the firearm for the kinds of self-defense, defense of others, or defense of premises that are statutorily justified.” As I read this, it probably means that the ordinance doesn’t ban most loaded carry at all, but just loaded carry for criminal purposes, or in unusually dangerous ways. And because it reads the ordinance so narrowly, the majority concludes that the ordinance is not unconstitutionally overbroad.

The dispute is about the interpretation of the word “recklessly.” The dissenters reason, in my view persuasively, that,

In context, the reference to a reckless failure to unload the firearm describes circumstances in which the person “is aware of and consciously disregards a substantial and unjustifiable risk” [the general Oregon definition of "recklessly" -EV] that the firearm is loaded. In other words, the person carries the firearm notwithstanding a substantial risk that it is loaded and under circumstances in which the person’s contrary belief is unjustified. So understood, the ordinance distinguishes between a gang member who carries a gun that another gang member has asked the person to carry to patrol the gang’s purported territory and a person who carries a gun to a shooting range that the person’s parent has said is unloaded.

But the majority interprets “recklessly” as referring not to the carrier’s recklessness as to whether the gun has been unloaded, but his recklessness as to the possible consequences of having the loaded gun:

A violation of the ordinance occurs … when a person (1) possesses or carries a loaded firearm in a public place; (2) knows that he or she is carrying or possessing the loaded firearm and that the place is public; (3) recklessly does so anyway, that is, is aware of the fact that carrying the loaded firearm in public creates an unreasonable, unjustifiable risk; and (4) nonetheless consciously disregards that risk and bears the firearm in a public place anyway.

Defendant (and the dissent) under-appreciate the effect of the term “recklessly,” apparently contending that it refers only to the isolated act of not unloading the firearm, as opposed to that act and its inherent consequent risks when the loaded weapon is borne in public. That interpretation makes no sense logically or syntactically. It would result in a rule that prohibits carrying a loaded firearm in public, having at some point been aware of and consciously disregarding the risk that not unloading the firearm creates a significant, unreasonable, and unjustifiable risk of … a loaded firearm. To take an action recklessly — that is, aware of and disregarding the fact that the action creates a risk — the risk must be of something other than the action itself. We do not say that a person who drives recklessly does so because he or she drives while aware of and disregarding the risk that he or she will drive. The crime of reckless driving is made out only if the driving “endangers the safety of persons or property.”

Here, for whatever it’s worth, is the Oregon general definition of “recklessly,” which is borrowed from the Model Penal Code: “‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

An interesting dispute, which I thought I’d note.

On Friday, March 9, Fordham Law School is holding an all-day symposium on the Second Amendment. The event is free, and open to the public. Or if you would prefer to pay, you can get CLE credits. Among the speakers are Gary Kleck, Nelson Lund, Robert Cottrol, Nicholas Johnson, Adam Winkler, and me.

After the event ends at 5 p.m., we are going to have an informal event to celebrate the publication of the new law school textbook Firearms Law & the Second Amendment; Regulation, Rights, and Policy. (By Nicholas J. Johnson , David B. Kopel , George A. Mocsary , Michael P. O’Shea.) Three of the four co-authors (Johnson, Kopel, and Mocsary) will be there. Our tentative plan is to hang around Fordham for a little while, and then proceed to P.J. Clark’s at 44 W. 63rd Street in Manhattan. VC readers are welcome to join us.

Or if you would just like to buy the book, you can order it from Amazon, or from the Aspen Publishers link, above.

When states have (or had) discretionary gun carrying license system, they have often provided that people who engage in “business activities that involve heightened risk, such as the need to carry cash or other ‘street valued’ commodities” should generally get licenses. (See this post, for instance, about the Maryland scheme.) The theory is that these people are at heightened risk of robbery, and the loss to them from the robberies is likely to be especially grave. And this theory seems factually plausible. To my knowledge, no-one has quantified how great the risk tends to be, or required such an empirical showing to justify creating such a category, but it’s certainly reasonable that the danger faced by someone who routinely carries lots of valuables is greater than that faced by, say, me.

But women, especially young women, are particularly likely to be targets of rape. See, e.g., table 4 of this document reporting 2008 data and table 4 of this document reporting 2007 data, reporting an aggregate approximately 0.5% per year rate of attempted or completed rape or sexual assault for women age 20 to 24. This is likely not as high as the attempted or completed robbery rate for men who carry valuables, but it might well be comparable when you multiply probability of the crime by the gravity of the damage to the victim.

In a sense, the women are transporting something that is likewise seen by some criminals as especially worth taking — their bodies. When people who carry lots of money are entitled to tools that help them protect their property (and also help them protect themselves against the death or bodily injury that may stem from attacks by robbers), why shouldn’t young women be entitled to similar tools that help them protect their bodily integrity (and also help them protect themselves against the death and further bodily injury that may stem from attacks by rapists)?

Of course, I recognize that if young women are allowed to carry guns to protect themselves against rape, it will be politically difficult to avoid extending the same right to older women, and politically and constitutionally difficult to avoid extending the same right to men. Thus, the licenses given to people, mostly relatively rich and mostly men, to defend against robbery will lead to less gun carrying than licenses given to young women to defend against rape. But is that basis enough to allow the money-carriers guns to defend against a less serious crime, but to deny the young women guns to defend against a more serious crime?

So holds United States v. Weaver (S.D. W. Va. Mar. 6, 2012). The judge expressly endorsed Judge Niemeyer’s separate opinion in United States v. Masciandaro (4th Cir. 2011) that concluded that the Second Amendment applies outside the home and not just in the home, and that restrictions on gun carrying must be tested under so-called “intermediate scrutiny.” (For more on the dispute among courts about the right to keep and bear arms outside the home, see this post about yesterday’s district court decision striking down Maryland’s broad gun carry restrictions.)

But the court held that 18 U.S.C. § 922(h), which bars people from knowingly possessing guns “in the course of … employment” “while being employed for any person” who is himself a felon possessing guns. (Here, the defendants were allegedly members of the Pagans Motorcycle Club, and were allegedly taking instructions from a club leader who was a convicted felon.) Among other things, the court held that,

Section 922(h) is … limited in [important] respects: temporally, an individual is only precluded from possessing a firearm while acting in the course of his employment for a prohibited person, and he is free to regain his right to possess firearms by simply parting with the employment relationship. To be quite clear, even an individual who maintains an employment relationship with a prohibited person may lawfully possess firearms, provided he is not acting in the course of employment at the time of the firearm possession. From this discussion, it is clear that Congress tailored the prohibition in § 922(h) to cover only certain individuals at certain times and when they act in certain ways. In other words, the scope of § 922(h) is effectively limited to vicarious possession by prohibited persons, although it penalizes the proxy rather than the prohibited person. It is a commonsense extension of the prohibitions contained in § 922(g). Just as § 922(g) strips firearms from the possession of prohibited persons, § 922(h) effectively strips firearms from their control.

The court does not discuss the situation where someone is employed “for” (the statutory requirement) a person, but whose gun-related actions are not controlled by a person — for instance, if a felon contracts with a security company to provide him with a full-time bodyguard. In that situation, I would think that the bodyguard is “employed for” the felon, though not employed by the felon. Likewise, the court does not discuss what happens when § 922(h) is applied to people who are “employed for” other people who aren’t themselves allowed to possess guns, such as nonresident (but legally admitted) aliens, people who have a history of mental problems, and the like. Section 922(h) applies to anyone who is “employed for” a person who is legally not allowed to possess guns himself, whether because of felony or some other disqualifying characteristic.

I would think that in many such situations the bodyguard’s own Second Amendment rights — including such rights exercised in a place that the bodyguard and the protected person are using as a temporary home — should prevail, at least if the bodyguard is responsible to a security company even though he is “employed for” the company’s client. But perhaps that could be avoided by construing “employed for” narrowly; in this case, the government’s claim is that the defendant’s gun use was indeed being controlled by the felon motorcycle club leader.

Maryland law provides that people may not carry a gun (concealed or otherwise) outside the home without a license, and the license is to be given only when the applicant has “good and substantial” reason to carry a gun. Such reasons, according to Maryland authorities, can be: “(1) business activities that involve heightened risk, such as the need to carry cash or other ‘street valued’ commodities, (2) participation in ‘regulated professions,’ such as security guards or armored car personnel, (3) participation in ‘assumed risk’ professions that involve the ability to restrict or take away civil liberties, such as judges, prosecutors, police officers, public defenders, and correctional officers,” and (4) “personal protection” when the applicant can show “some sort of objectively heightened threat, above and beyond the ‘personal anxiety’ or ‘apprehension of an average person.’” (Carrying an “an unloaded handgun” is also allowed “to and from places where it may legally be possessed without a permit, such as the owner‘s home, a repair shop, a target range, or a gun show.”)

Woollard v. Sheridan (D. Md. Mar. 2, 2012) holds that this unconstitutionally restricts the rights of law-abiding people who want to carry for personal protection based precisely on the “apprehension of an average person,” with no “objectively heightened threat.” The court follows Fourth Circuit precedent (United States v. Masciandaro) in holding that restrictions on gun possession outside the home are subject to “intermediate scrutiny,” i.e., must be (in the district court’s words) “reasonably adapted to a substantial governmental interest.” But these terms are notoriously vague — what’s significant is the meaning the court gives them in this context:

The Maryland statute’s failure lies in the overly broad means by which it seeks to advance this undoubtedly legitimate end [of public safety]. The requirement that a permit applicant demonstrate “good and substantial reason” to carry a handgun does not, for example, advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill. It does not ban handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol. It does not attempt to reduce accidents, as would a requirement that all permit applicants complete a safety course. It does not even, as some other States’ laws do, limit the carrying of handguns to persons deemed “suitable” by denying a permit to anyone “whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun.”

Rather, the regulation at issue is a rationing system. It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate “good reason” beyond a general desire for self-defense….

A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.

I think this result is correct — as I read Heller, it recognize a right to keep and bear arms for purpose of self-defense, and self-defense is needed wherever a person happens to be, not just in the home. (See pp. 1516-1524 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.) Heller does approve of some historically recognized limitations on the right, such as bans on concealed carry or bans on carrying into particular “sensitive places.” But I think the logic and language of Heller suggests that the right does extend to other sorts of carrying outside the home. And while I think that talk of “intermediate scrutiny” isn’t very helpful here, the district court’s analysis in applying intermediate scrutiny seems to me to be quite right.

This having been said, most recent court decisions that have squarely considered the matter have upheld broad restrictions on carrying, though some — like the Fourth Circuit — have suggested that such restrictions’ constitutionality remains unsettled, and a Puerto Rico appellate decision reached the same result that this Maryland federal court decision did. Indeed, Maryland’s highest court has upheld the Maryland statute, concluding that gun possession outside the home is outside the Second Amendment; it’s possible to read that decision more narrowly as simply upholding the permitting requirement but leaving open the question whether permits must be granted to pretty much all law-abiding applicants, but I think the logic of the Maryland high court opinion is broader than that, and would lead to the rejection of the very claim that the federal district court accepted in this case.

So it will be interesting to see what the Fourth Circuit does with this on appeal. And if the Fourth Circuit agrees with the district court, that will likely be seen as creating a split between the Fourth Circuit and Maryland’s highest court — plus state courts in some other states — which would mean there would be a substantial chance that the Supreme Court will agree to hear the case. (If the Fourth Circuit reverses the district court, and rejects the Second Amendment claim, then the Supreme Court will be quite unlikely to grant review.)

UPDATE: Whoops — David Kopel beat me to this.

Also, I forgot to note that, while most of the post-Heller cases that have considered whether the Second Amendment secures a right to keep and bear arms outside the home — cases from generally not very gun-friendly states, such as California, Illinois, Maryland, and Massachusetts — have rejected such a right to carry, most of the pre-Heller cases asking the same question about state constitutional rights to keep and bear arms have recognized a right to carry.

For cases or attorney general opinions holding or suggesting that there is a right to carry openly, see State v. Reid, 1 Ala. 612, 619 (1840) (dictum), reaffirmed, Hyde v. City of Birmingham, 392 So. 2d 1226, 1228 (Ala. Crim. App. 1980); Dano v. Collins, 802 P.2d 1021 (Ariz. Ct. App. 1990), review granted but later dismissed as improvidently granted, 809 P.2d 960 (Ariz. 1991); Nunn v. State, 1 Ga. 243 (1846), reaffirmed, Strickland v. State, 72 S.E. 260, 264 (Ga. 1911); In re Brickey, 70 P. 609 (Idaho 1902); Holland v. Commonwealth, 294 S.W.2d 83, 85 (Ky. 1956) (dictum); State v. Chaisson, 457 So. 2d 1257 (La. Ct. App. 1984); City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971); State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Nieto, 130 N.E. 663, 664 (Ohio 1920) (dictum), reaffirmed, Klein v. Leis, 795 N.E.2d 633, 638 (Ohio 2003); Glasscock v. City of Chattanooga, 11 S.W.2d 678 (Tenn. 1928); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988); La. Op. Att’y Gen. No. 80- 992 (1990); Wisconsin Department of Justice Advisory Memorandum (Apr. 20, 2009), http://www.doj.state.wi.us/news/files/FinalOpenCarryMemo.pdf.

For cases holding the right extends even to carrying a concealed weapon, though perhaps regulated through a nondiscretionary licensing regime, see Kellogg v. City of Gary, 562 N.E.2d 685, 705 (Ind. 1990); Schubert v. DeBard, 398 N.E.2d 1339 (Ind. Ct. App. 1980); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), abrogated as to concealed carry but not as to open carry by Ky. Const. of 1850, art. XIII, § 25; State v. Rosenthal, 55 A. 610, 610–11 (Vt. 1903); State v. Vegas, Case No. 07 CM 687 (Cir. Ct. Milwaukee County Sept. 24, 2007), available at http://www.law.ucla.edu/volokh/vegas.pdf (concluding that under State v. Hamdan, 665 N.W.2d 785 (Wis. 2003), the right to bear arms may include the right to concealed carry in some narrow circumstances, especially where the person is engaging in dangerous activity such as delivering pizzas in high-crime areas).

Oregon courts take the view that the right extends to carrying weapons openly, but allows restrictions on carrying loaded guns, so long as the law allows the carrying of both an unloaded gun and ammunition. See State v. Delgado, 692 P.2d 610, 614 (Or. 1984) (striking down total ban on carrying switchblade knives); Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) (per curiam) (striking down a total ban on carrying blackjacks); State v. Boyce, 658 P.2d 577, 578–79 (Or. Ct. App. 1983) (upholding a requirement that handguns be carried unloaded). The Louisiana Chaisson decision struck down a very limited carrying ban — one that applied only while hunting frogs at night — but its reasoning suggested that there was a constitutional right to carry for self-defense (including self-defense against alligators). 457 So. 2d at 1259; see also State v. Chandler, 5 La. Ann. 489, 490 (1850) (taking this view with regard to the Second Amendment). City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972), also struck down a carry ban because it was broad enough to ban gun stores, ban people “from transporting guns to and from such places of business,” and ban people from “possess[ing] a firearm in a vehicle or in a place of business for the purpose of self-defense”; the court concluded that “[s]everal of these activities are constitutionally protected,” which suggests that carrying in a car might have been protected. Id. This is consistent with the Colorado right to bear arms’ express exclusion of “the practice of carrying concealed weapons,” Colo. Const. art. II, § 13, which suggests that carrying weapons unconcealed would be presumptively protected.

All these cases speak of carrying in most public places; they often leave room for restrictions on carrying in particular places, such as businesses that serve liquor, churches, or polling places.

For some state courts’ decisions that a state constitutional right to keep and bear arms does not extend outside the home, see City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo. Ct. App. 1994); Pierce v. State, 275 P. 393 (Okla. Crim. App. 1929); i, 272 A.2d 275, 278–79 (Pa. Super. Ct. 1970), vacated, 292 A.2d 410 (Pa. 1972); Masters v. State, 685 S.W.2d 654 (Tex. Crim. App. 1985) (per curiam). But see Cockrum v. State, 24 Tex. 394, 401–02 (1859) (taking the view that the right to bear arms includes the right to carry them); Galloway v. State, 69 S.W.2d 89, 90 (Tex. Crim. App. 1933) (per curiam) (likewise).

Earlier today, Maryland federal district Benson Everett Legg decided the case of Woollard v. Sheridan. Plaintiffs on the case  are Robert Woollard and the Second Amendment Foundation. The lead attorney for plaintiffs is Alan Gura, the winning attorney in D.C. v. Heller and McDonald v. Chicago.

As explained in the district court’s Dec. 2010 ruling, rejecting a motion to dismiss:

Plaintiff Woollard initially obtained a handgun carry permit after he was assaulted by an intruder in his home in 2002. The permit was renewed in 2005. At that time, the intruder had recently been released from prison, providing a “good and substantial reason” for Woollard to carry a firearm. In 2009, Woollard again sought to renew his permit so that he could carry a handgun for self defense. MSP Secretary Sheridan denied Woollard’s application, however, because Woollard failed to provide sufficient evidence “to support apprehended fear.”

At issue in the case is the Maryland statute which says that the Secretary of the State Police can issue a carry permit if  the applicant “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” Md.Code Ann., Pub. Safety § 5-306(a)(5)(ii).

In today’s decision on the merits, the “good and substantial reason” requirement was ruled to violate the Second Amendment. The court held that the Second Amendment right is not limited to self-defense in the home. It also includes the militia and hunting. None of the Second Amendment rights can logically be confined solely to the home: “In addition to self-defense, the right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household activity, and ‘self-defense has to take place wherever [a] person happens to be’.”

The internal quotation, by the way, is from Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009). Based on judicial citations, the Volokh article appears to be by far the most influential post-Heller  article on the Second Amendment.

The Maryland carry license law was not “narrowly tailored,” says the Woollard opinion. Moreover, “A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights.” Rather, “The right’s existence is all the reason he needs.”

The case is headed to the Fourth Circuit, which has a mixed record on Second Amendment issues. From there, Woollard could be the case in which the Supreme Court chooses to tell recalcitrant lower federal courts that Heller and McDonald really do mean what they say: that the Second Amendment includes the right to carry, albeit not in “sensitive places,” and the government may, if it wishes, require that carry be open rather than concealed.

The SAF press release is here, and a terse AP story is here. Congratulations to Alan Gura and to SAF President Alan Gottlieb!

That seems to be the implication of United States v. Stegmeier (D.S.D. Dec. 2, 2011) (now on appeal). Stegmeier let a man named Kelley stay in his RV; Kelley was a fugitive from justice, and there was some evidence Stegmeier knew it. Stegmeier also told Kelley where Stegmeier kept his gun. When Kelley was caught, Stegmeier was prosecuted for various charges, including “dispos[ing]” a gun to “any person knowing or having reasonable cause to believe” the person is a felon, under indictment for a felony, or a fugitive from justice. The jury convicted, and the judge concluded that the evidence was sufficient to support the conviction:

Stegmeier allowed Kelley to live in his RV …. Stegmeier testified that when he helped move Kelley into the RV he told Kelley, “My Pistol is in the closet.” At the time law enforcement was searching the RV on December 22, 2010, the pistol was not in the closet as Stegmeier had advised them it would be. Agent Legg testified that Stagmeier told him on December 22, 2010, that Kelley must have moved the gun and that they should check under the pillow because that is where Kelley usually kept the gun. The .357 handgun was eventually located in a compartment within arm’s reach of the bed in the RV.

The evidence at trial supports a jury finding that Stegmeier disposed of the gun to Kelley. Stegmeier allowed Kelley the use of his RV and advised him of the location of the gun within the RV. Kelley had the power of disposal of the .357 handgun. There is further evidence that Stegmeier was aware that Kelley would have moved and exercised control over that handgun. There was sufficient evidence to convict Stegmeier of the charges under 18 U.S.C. § 922(d)….

Note that the jury wasn’t required to find that Stegmeier knew Kelley was ineligible to possess a gun, only that he had “reasonable cause to believe” this. Likewise, it seemed to be sufficient that Stegmeier informed Kelley of where the gun is — something that might have happened if the gun were visible (e.g., hanging on the wall) or was just casually exposed to Kelley, for instance if Kelley saw Stegmeier handle the gun and return it to its proper place. And while Stegmeier seemed to know that Kelley actually handled the gun, that didn’t seem to be required under the court’s reasoning, and as best I can tell the jury never had to find such knowledge. Finally, while Kelley lived in the RV for months, the same logic would apply to shorter visits as well; § 922(d) has no requirement of long-term access.

So if you have house-guests that you have “reasonable cause to believe” have a felony conviction, or have once been in a mental hospital, or are nonresident aliens (even if legal aliens), and they see where your gun is, you might well be guilty of a federal felony on the theory of this case.