Archive | Guns

McDonald v. Chicago and Gilbert & Sullivan: The hidden connection!

In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse‘s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of [...]

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NRA brief in McDonald v. Chicago

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.'” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644-45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of [...]

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Ohio Court of Appeals Strikes Down State Preemption of Local Gun Laws

The opinion is City of Cleveland v. State (Nov. 12), and it rests on (1) state constitutional “home rule” principles, and (2) separation of powers.

I can’t opine confidently about the first item, which rests on Ohio case law that I’m not familiar with. The analysis seems unsound, since it seems to suggest that comprehensive state deregulatory laws are unconstitutional intrusions on local authority even when comprehensive state regulatory laws are constitutional. But even if I’m right that this isn’t a sensible rule, I’m not sure whether the problem is unsound precedents or unsound interpretation of the precedents.

On the second item, the analysis seems still dicier, since the court doesn’t really cite any precedents but appears to be coming up with the principle — an unsound principle, in my view — itself: The conclusion is that the law “violates the separation of powers by usurping judicial discretion in the award of attorney’s fees and costs,” and “invites unwarranted litigation and attempts to coerce municipalities into repealing or refusing to enforce longstanding local firearm regulations using the significant burden of financial litigation penalties.” That can’t be right, I think; it is a proper part of the lawmaker’s business, it seems to me, to decide the remedies available in lawsuits, and whether the remedies should be discretionary or mandatory, even when the consequence is “unwarranted litigation” and the pressure to give in to plaintiffs. Still, it’s possible that there’s something about some uncited Ohio separation of powers law that I’m missing here; I know that many states have separation of powers rules that differ from the federal rules.

But what most surprises me about the decision isn’t the substance, but the fact that only one judge signed on to any written opinion — the opinion is labeled as the work [...]

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Bleg on criminal prosecution of people for transient possession of illegal objects they want to give to the police

In a recent case in Surrey, England, a man found a black bag in his garden one evening. He looked into the bag, and found that it contained a shotgun. He took the shotgun into his home, and the next day he called the police, and brought the shotgun to the police station. He was arrested for unlicensed possession of a firearm, convicted after a jury trial, and now faces a mandatory sentence of at least five years in prison.

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.

Also fair game for inclusion are other cases in which the person’s possession of the weapon or other item was patently innocent and transitory. For example, a victim is attacked by someone with a gun. The victim snatches the gun away from the attacker. The victim is criminally prosecuted because he has a previous felony conviction, and therefore is not allowed to possess a gun.

For the cases you describe, please supply a cite, a link, or similar information. Thank you! [...]

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D.C. Court of Appeals Accepts (Partly) Defendant’s Second Amendment Claim

The case is Plummer v. United States, decided today.

Several years ago, before D.C. v. Heller, Plummer was convicted of carrying a pistol without a license and of possessing an unregistered firearm. (He was acquitted of the greater offense of carrying a pistol without a license outside one’s home, so the jury essentially found — perhaps inconsistently with the evidence — that he was only carrying the pistol inside his own home.) But both offenses have as an element that the gun be unlicensed or unregistered, and at the time D.C. law did not allow people to get licenses or registrations for newly owned handguns.

The D.C. Court of Appeals concluded:

In light of the handgun registration and licensing scheme in effect at the time of the incident in this case, Mr. Plummer could not have registered his handgun, but registration was a prerequisite to obtaining a license, despite the Second Amendment right to keep a handgun in his home for defensive purposes…. [W]e conclude that Mr. Plummer preserved and had standing to raise the Second Amendment issue as a defense to the criminal charges against him by moving to dismiss the indictment, even though he did not attempt to obtain a registration certificate and license for his handgun prior to his arrest. See Chicago v. Atchison, Topeka & Santa Fe Ry. Co., 357 U.S. 77, 89 (1958) (where the statute “is completely invalid insofar as it applies to [the company], that company was not obligated to apply for a certificate of convenience and necessity and submit to the administrative procedures incident thereto before bringing this action”)….

[But] whether Mr. Plummer could have successfully obtained a registration certificate prior to the imposition of charges in this case is a question we cannot resolve on this record. D.C.

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The Second Amendment on Military Bases

A reader asks whether the ban on soldiers’ carrying weapons for self-defense on military bases would violate the Second Amendment. One could equally ask whether bans on carrying on military bases by non-soldiers — civilian employees, soldiers’ friends and family members, and such — would be unconstitutional.

I think the answer to both questions is “no.” The government has very broad authority, and rightly so, over the military and over military bases. Military members, for instance, have very limited Free Speech Clause rights, as do outsiders who want to speak on military bases. Naturally, such analogies go only so far, and one can certainly point to possible distinctions between Free Speech Clause rights and Second Amendment rights here. But my sense is that courts will conclude that the government has nearly unlimited powers over private gun possession by its soldiers (whether on- or off-base) and on its military bases (whether by soldiers or others), and that this is likely the correct conclusion as a matter of constitutional law. (I think banning gun carrying by soldiers on-base is generally bad policy, but here I’m speaking only about the constitutional question.)

For my thoughts on the broader question of gun possession on government property (such as public housing), see pp. 87-91 of 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). But that doesn’t deal with the special extra powers that the government has with regard to members of the military, or military bases. [...]

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Bloggingheads TV on Moses as the essential American hero

Robert Wright’s BloggingHeadsTV is often the best place on the Web for highly intelligent conversation about politics and culture. Particularly excellent is a new episode, posted today, in which Wright interviews Bruce Feiler, author of the new book America’s Prophet, Moses and the American Story. Wright is a scholar of the history of religions, so the conversation is thoughtful, challenging, and enlightening. Wright finds himself astonished, by Feiler’s thesis, but admits that upon reading the evidence, it is irrefutable. As the book’s promotional material states:

The Exodus story is America’s story. Moses is our real founding father. The pilgrims quoted his story. Franklin and Jefferson proposed he appear on the U.S. seal. Washington and Lincoln were called his incarnations. The Statue of Liberty and Superman were molded in his image. Martin Luther King, Jr., invoked him the night before he died. Ronald Reagan and Barack Obama cited him as inspiration. For four hundred years, one figure inspired more Americans than any other. His name is Moses.

I will say that Feiler’s thesis is not at all startling to some of us who have studied religious rhetoric in American history. As when in 1858 Rabbi Isaac Mayer Wise, one of the founders of Reform Judaism in America, declared  that the American Independence Day was a second Passover: “the fourth of July tells us the glorious story of the second redemption of mankind from the hands of their oppressors, the second interposition of Providence in behalf of liberty, the second era of the redemption of mankind, the second triumph of right over might, justice over arbitrary despotism, personal and legal liberty over the power of the strongest and most warlike.”

When Benjamin Franklin and Thomas Jefferson were chosen by the Continental Congress in 1776 to design a Seal of the [...]

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Georgetown Panel on McDonald & the Privileges or Immunities Clause:

As many readers probably know, McDonald v. Chicago involves a constitutional challenge to the Chicago handgun ban, which raises the issue of whether the individual right to keep and bear arms, which was recognized by the Supreme Court in DC v. Heller also applies to the states. Somewhat amazingly, the Court announced that this was the question presented:

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.

This indicates that the meaning of the long-ignored Privileges or Immunities Clause is now in play, and that the Court wants to squarely address this constitutional question, as Justice Thomas has long been urging it to do. Rarely do constitutional law cases involve the isolated issue of the original meaning of the text. Heller is one such case; McDonald could be another. Is it really possible that the court will restore not one, but two clauses of the Lost Constitution?

Next Friday, November 13th, from 12:30-2:30pm, the Georgetown Law Journal will be hosting a program entitled, “A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?” The discussants are Georgetown Law graduate Alan Gura, who argued and won the Heller case and is Lead Counsel who will argue McDonald, Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School (and who has recently accepted an appointment to the University of Illinois faculty), David Gans of the Constitutional Accountability Center, and me. I am coauthoring an amicus brief on the Privileges or Immunities Clause for the CAC.

The program is free and open to the public. Details are here.

UPDATE: Webcast will be available here: [...]

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The most important right to arms vote of 2009

UPDATE: The repeal just passed 2d reading by a vote of 164 to 137! The bill now proceeds to a committee for public hearings. The Canadian Conservative Party has 143 Members of Parliament, so the bill attracted over 20 votes from members of other parties–significantly more than had been expected by Canadian political commentators. Today is a good day for Liberty.


Will take place in the Canadian House of Commons today, at approximately 5:30 p.m., Eastern Time. Bill C-391 is a private member’s bill  (by Candice  Hoeppner of Portage—Lisgar, Manitoba) to repeal Canada’s failed and extremely expensive long gun registry.

Background information about the registry is available in this short presentation from Prof. Gary Mauser, a magazine article by Mauser, and in Mauser’s journal articles on the politics and efficacy of the registry, and in some articles I have written about Canada.

For the last two decades, Canada has been the test bed of the international gun prohibition movement. Repressive ideas from Canada have been exported around the world by the international gun prohibition lobby, which is vastly better at international coordination than the other side.

Repeal of the Canadian registry would, accordingly, be of tremendous global significance. Repeal would also shatter the claim by the Canadian gun prohibition lobby that gun control in Canada is an irreversible ratchet.

If the House votes for repeal today, then there will be committee hearings on Bill C-391, followed by another vote in the House, followed by Senate consideration.

You can follow a webcast of the House of Commons by going here. [...]

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Another good night for the Second Amendment

NY-23: Winning Democrat Bill Owens was A-rated by NRA (as was Hoffman).

Virginia: Either Deeds (B rating) or McDonnell (A) were sure to be a big improvement over outgoing Governor Kaine. Deeds lost the NRA endorsement by supporting closing of the (non-existent) “gun show loophole.” In the Attorney General race, Republican Ken Cuccinelli (A+) handily defeated a D-rated Democrat who advertised very aggressively on the gun show issue. Incumbent Lt. Gov. Bill Bolling (A+) trounced an F-rated challenger.

In the Virginia House of Delegates, five Republican challengers with A ratings ousted Democratic incumbents rated F,F,B,B,B. A C-rated Republican also unseated an F Democrat incumbent. The House of Delegates already had a fairly solid pro-Second Amendment majority, so the major change in Virginia is a new Governor who, like  former Governor and current Senator Mark Warner (Dem.), will sign rights-enhancing legislation passed by the legislature.

By far the most prominent gun control advocate on the ballot this year was Jon Corzine (F). This summer, Corzine twisted lots of legislative arms to win enactment of gun rationing (“one-handgun-a-month”), a silly law that is even sillier in New Jersey, where every handgun purchase requires advance permission from the local police chief. With Christie replacing Corzine, New Jersey gun owners can hope for benign neglect rather than active hostility. The  New Jersey Assembly appears to be unchanged.

In sum: A bad night for advocates of gun show restrictions. Another fine night (as were election nights 2006 and 2008) for Democrats with A ratings from NRA. And good news for Second Amendment advocates in blue New Jersey and purple Virginia. [...]

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Will the Arms Trade Treaty provide effective embargos on human rights violators?

Reversing the position of the Bush administration, the Obama administration recently announced support for the global Arms Trade Treaty (ATT), which is currently being drafted by the United Nations. The leading voices for the ATT are the International Action Network on Small Arms (IANSA, funded by George Soros, and run by the Open Society’s former gun control executive, Rebecca Peters) and the IANSA spin-off  “Control Arms.” Proponents of the ATT promise that it will impose effective arms on embargos on human rights violators. In a forthcoming article in the Penn State Law ReviewThe Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators, Paul Gallant, Joanne Eisen and I examine the issue. Our article shows that if the ATT were to be implemented as its proponents promise (to proactively embargo arms where there are serious risks of instability), there would have to be dozens of new embargos. Because small arms manufacture is already widespread, and is not technologically complex, most targets of new embargos would be able to manufacture firearms domestically. 

We then study two failed arms embargos: Zimbabwe, and the eastern Democratic Republic of the Congo. Zimbabwe is currently under a European Union embargo, but there is no UN embargo because Mugabe’s principal diplomatic allies, China and South Africa, have blocked UN action.  Moreover, the South African government has flagrantly violated South Africa’s own gun control law (which was imposed by the currently-ruling party), which forbids South Africa to authorize arms transfers to human rights violators. If South Africa will not obey its own laws, there is no reason to assume that it will obey treaty law created by the UN.

The eastern Democratic Republic of the Congo is under a United Nations embargo, impsed by [...]

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Funny Sign

Their House Is Not Armed

Thanks to John Burgess for the pointer.

UPDATE: Just to make this clear, it seems to me extremely unlikely that this is an actual permanent sign — I assume it’s either a Photoshop or a temporary sign put up just for the photograph. If this was a real sign, it would likely be pretty unneighborly and thus much less funny. (I say “likely” rather than “certainly” because one can imagine unneighborliness on the other guy’s part that might be adequate to justify such a response, or for that matter cheerful acceptance of the sign by the other guy as part of the neighbors’ continued good-humored debate on the subject; but that’s all highly hypothetical since, as I said, I doubt that there was actually such a real sign.) The humor is in the idea of the sign, not in the actual execution of such a sign. [...]

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Pretend “Gun-Free” School Zones: A Deadly Legal Fiction

That’s the title of my forthcoming article in the Connecticut Law Review; a revised version is now available. The article suggests that, under Heller, bans on guns at schools are constitutional. However, as a policy matter, gun prohibition on campuses turns them into targets for criminals, particularly mass killers. The response of anti-gun groups is to warn about the dangers of 18-year-olds carrying AK-47 rifles to keggers. For the record, I do not think that anyone should take an AK-47 (or any other gun) to a kegger. However, there are sensible policies that avoid the dangerous extremes of creating a cluster of thousands of defenseless victims, or teenagers bringing machine guns to keggers. For example, adult employees of the school who already have been issued concealed carry licenses by the state should not be barred from licensed carry while on campus. A professor at a medical school who lawfully carries a licensed concealed handgun throughout the state is not going to suddenly turn into a violent criminal if he also carries while on campus.  [...]

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The Right to Bear Arms and 18-to-20-Year-Olds

A Fifth Circuit nonprecedential decision yesterday involved a challenge to the federal limits on 18-to-20-year-olds’ acquisition of handguns, but didn’t need to reach the Second Amendment question:

Defendant-Appellant Cantrell Bledsoe appeals her conviction after pleading guilty to one count of conspiring to make knowing, false, material representations to a federally-licensed gun dealer, in violation of 18 U.S.C. § 371, and § 922(a)(6). For the reasons set forth below, we AFFIRM.

Bledsoe admits to paying a third party to purchase her a handgun from a federally-licensed seller. That third party falsely stated that he was the “actual buyer” of the weapon, thus violating § 922(a)(6). Bledsoe further admits to conspiring with this third party to make these false statements, thus violating § 371.

Bledsoe, who was nineteen at the time of the purchase, argues that the proscription in § 922(b)(1) on the sale of handguns by federally-licensed dealers to people under twenty-one violates her Second Amendment individual right to keep and bear arms, as recently recognized in District of Columbia v. Heller, 555
U.S. —-, 128 S. Ct. 2783, 2822 (2008). Bledsoe further argues that the overall age scheme in § 922 violates the equal protection component of the Due Process Clause of the Fifth Amendment.

We do not need to reach the substance of Bledsoe’s arguments. Bledsoe is not being charged with violating § 922(b)(1), but of conspiring to make a false material statement in the purchase of a firearm, which she admitted doing. The Supreme Court has stated that “a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that [her] conduct be excused because the statute which [s]he sought

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Huge win for Knife Rights

An e-mail from reports that the “Senate has passed the conference report for the fiscal year 2010 Homeland Security Appropriations Bill with our amendment to the Federal Switchblade Act intact.” The bill now goes to President Obama for his expected signature. The bill makes technical changes in the definitions of the Federal Switchblade Act. In particular, under the revised statute, a “switchblade” is not: “a knife that contains a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife.”

Earlier this year, the Customs Bureau had proposed revising several of its previous rulings; the effect would have been to bring a very large percentage of folding knives under the Switchblade Act. Knife Rights–with strong assistance from the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) and from the National Rifle Association–led a public mobilization which garnered widespread, bi-partisan congressional support. At first, the citizen activism resulted in Customs halting its proposed regulatory change. Because the Switchblade Act’s original langauge is very broad, Knife Rights then worked for a permanent resolution to the problem, by clarifying the statute.

A citizen group with a shoestring budget, Knife Rights was founded in 2006. Today’s action is an impressive accomplishment for such a new organization. [...]

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