pageok
pageok
pageok
Podcasts on 7th Cir. handgun case, and Montana Firearms Freedom Act:

Just uploaded: Jon Caldara and I discuss the 7th Circuit decision in NRA v. Chicago. 12 minutes. In another podcast, Amy Oliver and I discuss the Montana Firearms Freedom Act, which attempts to exempt guns manufactured and possessed within Montana from federal laws based on the interstate commerce power. 16 minutes.

cboldt (mail):
Is there a transcript?
6.4.2009 6:13pm
dmv (www):
And more importantly, will David Kopel join this church?
6.4.2009 7:11pm
You're A U.S. State, Not A Sovereign Anything:
How does Wickard v. Fillburn not gut the arrogant Montana "Firearms Freedom Act"?
6.4.2009 7:52pm
LA Lawyer:
Excellent dialogue on the Seventh Circuit case, Dave, particularly your comments about Posner being a thoroughgoing statist. He is definitely an authoritarian conservative in the European tradition, a la Carl Schmitt (who described the Rohm purge as the "highest form of administrative justice).

Posner, remember, is on record approving the result in the Korematsu decision. He's also fond of O.W. Holmes, of "three generations of imbeciles are enough!" fame from Buck v. Bell.

So Posner's belief that incorporation of the Second Amendment would be a bad idea because it would prevent States from outlawing self-defense is in keeping with his general disdain for civil liberties.
6.4.2009 7:56pm
juris_imprudent (mail):
How does Wickard v. Fillburn not gut the arrogant Montana "Firearms Freedom Act"?

I believe that is quite the intent - to gut the arrogant and over-reaching Wickard decision. Stare decisis preserved Plessy even though that was a repugnant decision (and John Marshall Harlan's dissent sublime). One day Wickard too will follow Plessy into the dustbin of Supreme Court jurisprudence.
6.4.2009 8:04pm
You're A U.S. State, Not A Sovereign Anything:

One day Wickard too will follow Plessy into the dustbin of Supreme Court jurisprudence.


And on that day, what's to protect Katzenbach and Heart of Atlanta Motel?
6.4.2009 8:09pm
More Importantly . . .:

And on that day, what's to protect Katzenbach and Heart of Atlanta Motel?


With luck? Nothing.
6.4.2009 8:10pm
dmv (www):
Wait, are people actually equating Plessy and Wickard?
6.4.2009 8:26pm
Kevin P. (mail):
The MP3 files don't seem to contain any kind of tags such as author, topic, subject, etc. Can you please add useful tags so I can then find these on my iPod instead of looking for iipodcast307.mp3? :-)
6.4.2009 8:45pm
cboldt (mail):
-- How does Wickard v. Fillburn not gut the arrogant Montana "Firearms Freedom Act"? --
.
And Utah (IIRC) and Texas, and maybe Tennessee soon. You are correct. Lopez, built on Wickard, and more recently a fed gun case was ordered reconsidered in light of Raich. These state legislative actions are boob bait for suckers. Pure political posturing. The Montana law had a section that would fund a legal action seeking a declaratory judgment in federal court. That clause was dropped before the legislation was passed.
6.4.2009 9:22pm
cboldt (mail):
Law proposed and REJECTED:

NEW SECTION. Section 7. Duties of the attorney general. (1) A Montana citizen whom the government of the United States attempts to prosecute, under the congressional power to regulate interstate commerce, for violation of a federal law concerning the manufacture, sale, transfer, or possession of a firearm, a firearm accessory, or ammunition manufactured and retained within Montana must be defended in full by the Montana attorney general. (2) Upon written notification to the Montana attorney general by a Montana citizen of intent to manufacture a firearm, a firearm accessory, or ammunition to which [sections 1 through 7] apply, the attorney general shall seek a declaratory judgment from the federal district court for the district of Montana that [sections 1 through 7] are consistent with the United States constitution.
6.4.2009 9:35pm
juris_imprudent (mail):
Wait, are people actually equating Plessy and Wickard?

Only to the extent that they are amongst the worst products of the Court. There is no equating them as to the merits of the legal doctrines each established. In that regard Wickard is misguided and mischevious but Plessy was straight up evil, formed by nothing more than naked bigotry.
6.4.2009 10:05pm
mr_liberal:
I thought Scalia and Thomas oppose incorporation, of any of the BORs. I know Scalia has said that he goes along with it because of precedent, at least the Amendments already incorporated. But it seems to me that he'd be totally rejecting his own federalist philosophy if he added yet another amendment to the ones already incorporated. Im just guessing, but I would assume that Alito and Roberts hold similar views.

I would be interested in hearing somebody like Kopel discuss this. Why is he and the NRA so sure that the conservatives on the court are going to vote their way? Are they even aware that the conservatives on the court are more likely than even the liberals to vote AGAINST incorporation? From the podcast I just listened to it doesnt seem like they are.
6.4.2009 11:59pm
More Importantly . . .:
mr_liberal, are you familiar with a Scalia opinion called Dale? The 2nd Amendment will be incorporated as a fundamental right. The only question left to spar over is how stringent a standard of review Kennedy will go for.
6.5.2009 12:24am
Larrya (mail) (www):
And more importantly, will David Kopel join this church?
Don't know about that one, but in Texas carrying in church isn't illegal. We don't make such a big deal of it.

Of course the New Life Church in Colorado Springs is pretty happy that carrying in church isn't illegal in Colorado.
How does Wickard v. Fillburn not gut the arrogant Montana "Firearms Freedom Act"?
IANAL, but the Texas version is based on a firearm manufactured in a state and sold there not being in "interstate commerce." The Supreme Court already held unconstitutional a no-guns-in-school law on those grounds. OTOH, yeah, it's pretty much grandstanding.
6.5.2009 2:43am
PersonFromPorlock:
cboldt:

The Montana law had a section that would fund a legal action seeking a declaratory judgment in federal court. That clause was dropped before the legislation was passed.

Any state try at directly resisting the federal government is likely to fail. On the other hand, if local federal employees' cars suddenly become the focus of safety concerns by state police, or the legislature decides not to spend any money for the protection of federal figures on campaign visits, or federal requests for information get lost between state offices, or federal actions go unsupported by the state because the state suddenly becomes fumble-fingered, then a state may yet get its way. Good Soldier Schweik may succeed where Rambo would get creamed.

I suspect Montana isn't that serious about the matter, but it could possibly be done.
6.5.2009 8:13am
cboldt (mail):
-- I would be interested in hearing somebody like Kopel discuss this. Why is he and the NRA so sure that the conservatives on the court are going to vote their way? --
.
That's a good question, because SCOTUS recently (2005) denied cert in Bach v Pataki, which was based on the doctrine of incorporation.
.
I think the current optimism is based on rhetoric (dicta) in the Heller case, e.g., "We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."
.
I think the gun grabbers can provoke a denial of cert by seeing to it that state and local laws do not work an outright ban, as DC law did. In other words, if state and local governments enact onerous licensing regimes, rather than blanket "may not possess" laws, SCOTUS will perceive the case as already decided, see Heller.
.
Plaintiff in Nordyke is easily distinguishable on the facts (they are arguing for the right to a group gathering - almost ala Presser), assuming the 9th Circuit does not cause its incorporation dicta to be withdrawn as superfluous to the decision, or explicitly reversed (also superfluous to the decision), creating a clear absence of split between the Circuits.
.
The observation that Scalia and Thomas are anti-incorporation inclines them to deny cert, and the gun grabbers are inclined to deny cert on policy grounds. I personally hope cert is denied.
6.5.2009 8:47am
cboldt (mail):
-- I suspect Montana isn't that serious about the matter, but it could possibly be done. --
.
Serious to the extent it scores political points, no further. I know of no state that is serious about challenging the constitutionality of 922(o); nor will any state lift a finger to defend one of its citizens who runs afoul of 922(o).
6.5.2009 9:05am
cboldt (mail):
-- the Texas version is based on a firearm manufactured in a state and sold there not being in "interstate commerce." The Supreme Court already held unconstitutional a no-guns-in-school law on those grounds. --
.
That's the Lopez decision. Congress got around it by changing the law to recite that the gun in question must be "in or affecting interstate commerce," which cured the deficiency cited by SCOTUS in Lopez. The federal "no guns in school zones" law, with the change just noted, is perfectly constitutional. So holds SCOTUS.
.
See too, US v. Stewart in the 9th Circuit. SCOTUS directed the 9th Circuit to reconsider Stewart and be guided in that reconsideration by Raich. The result:
"We therefore hold that Congress had a rational basis for concluding that in the aggregate, possession of homemade machineguns could substantially affect interstate commerce in machineguns."
6.5.2009 9:20am
PubliusFL:
cboldt: The federal "no guns in school zones" law, with the change just noted, is perfectly constitutional. So holds SCOTUS.

I was not aware that the amended GFSZA had been considered by SCOTUS. What was the case?
6.5.2009 10:24am
cboldt (mail):
-- I was not aware that the amended GFSZA had been considered by SCOTUS. What was the case? --
.
I don't know of a case that considered the amended act (not that there isn't one, there may well be). My comment had in mind that the Lopez decision provided a roadmap to Congress, describing how to cure the constitutional deficiency. Congress followed the roadmap, and should the same case come before SCOTUS again, it would follow the same Lopez precedent and find the amended statute to be constitutional.
.
IOW, Lopez itself "holds" the amended act constitutional, albeit in foresight.
6.5.2009 10:39am
Nelson Lund (mail):

cboldt wrote: I don't know of a case that considered the amended act (not that there isn't one, there may well be).

See United States v. Danks, 221 F.3d 1037 (8th Cir. 1999).
6.5.2009 1:28pm
Brett Bellmore:
Just looked up Danks; The court specifically upheld the law in that case because the gun HAD traveled in interstate commerce. Not really applicable to Montana's law.
6.5.2009 4:25pm
LarryA (mail) (www):
The federal "no guns in school zones" law, with the change just noted, is perfectly constitutional. So holds SCOTUS.
Interesting.

Under Texas law (Penal Code 46.03(a)(1)) it's illegal to possess a firearm "(1) on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution;" Premises is defined as "a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area."

Schools commonly write policies permitting firearms for specific purposes. I have a letter from a local school district so I can take firearms into classrooms and teach Hunter Education. In far north Texas the Harrold ISD has for the past school year allowed staff with concealed carry licenses to carry on campus.

So apparently the federal law is being ignored.
6.5.2009 6:46pm
cboldt (mail):
-- So apparently the federal law is being ignored. --
.
You missed the above cite to US v Danks, 221 F3d 1037 (8th Cir. 1999), where a federal grand jury charged Danks with possessing a firearm within 1,000 feet of a school, in violation of 18 U.S.C. 922(q)(2)(A); and the 8th Circuit upheld the charge against a challenge that the statute was unconstitutional.
.
There is also US v Tait, 202 F.3d 1320 (11th Cir. 2000) (indictment dismissed on grounds other than defect in federal jurisdiction).
.
I don't know how prevalent prosecutions on the statute are, what sort of enforcement strategy the feds have, etc. The law has substantial carve-outs, permitting guns to be in a school zone, as well - in particular, anybody with a valid state or local permit to carry is not afoul of the federal prohibition.
6.6.2009 8:36am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.