Archive | Guns

The Strange Career of Mississippi’s Bans on Gun Carrying

A few weeks ago, the Mississippi Supreme Court took another step towards dismantling the state’s legacy of Jim Crow gun control laws. If you had read the Mississippi statutes from that era, they would have seemed quite ordinary in an American context:

1. There was no laws against the open carrying of firearms in most public places.

2. Concealed carry required a special permit.

But in practice, Mississippi forbade all gun carrying, at least for persons whom local authorities wished to prevent from carrying guns. The prohibition was accomplished through two steps: First, concealed carry permits were only granted to persons who were special favorites of whoever was issuing the permits. Nominally, citizens could still open carry, without need for a permit. But the Mississippi courts defined “concealed” carry so broadly as to encompass all normal forms of open carry. See, e.g.L.M., Jr. v. State, 600 So.2d 967 (Miss. 1992); Martin v. State, 93 Miss. 764, 47 So. 426 (1908). As Chief Justice Roy Noble Lee explained in a concurring opinion in the L.M., Jr. case:

One of the first cases I undertook as a young lawyer was the defense of a man charged with carrying a concealed weapon. I thought his defense would be simple and easy until I learned what the statute meant. To my amazement, I discovered that carrying a concealed weapon in whole or in part even meant that a revolver carried in a holster on a man’s hip was a partially concealed weapon, riding a horse with a saddle holster and revolver under a person’s leg violated the statute; and that covering a weapon with feet, hands, or clothing meant that the weapon was concealed under the interpretation of the statute. Conceivably, carrying a revolver suspended from the neck by

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Live With a Foreigner Who Doesn’t Have a Green Card? You Must Keep Your Guns Locked Up

That’s what the newly enacted Cal. Penal Code § 25135, just signed by Gov. Brown, would do (on pain of criminal punishment) [note UPDATE below]:

A person who is 18 years of age or older, and who is the owner, lessee, renter, or other legal occupant of a residence, who owns a firearm and who knows or has reason to know that another person also residing therein is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm shall not keep in that residence any firearm that he or she owns unless one of the following applies:
(1) The firearm is maintained within a locked container.
(2) The firearm is disabled by a firearm safety device.
(3) The firearm is maintained within a locked gun safe.
(4) The firearm is maintained within a locked trunk.
(5) The firearm is locked with a locking device as described in Section 16860, which has rendered the firearm inoperable.
(6) The firearm is carried on the person or within close enough proximity thereto that the individual can readily retrieve and use the firearm as if carried on the person.

Federal law, 18 U.S.C. § 922(d)(5)(B), (g)(5)(B), provides that foreigners who are lawfully here under a nonimmigrant visa — which can include foreign college or graduate students, people who are lawfully working for a business but don’t have an unrestricted green card, and more — are generally barred from possessing, receiving, owning, or buying a firearm. So if someone living in your residence, whether as a housemate, a lover, or what have you, is a foreigner, you must keep your guns locked up, even if the foreigner is a perfectly responsible adult.

To be sure, many gun owners keep their guns locked up in any event, but some people [...]

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Unconstitutional to Ban All Felons from Becoming Precious Metals Dealers

So holds last week’s Barletta v. Rilling (D. Conn. Sept. 26, 2013), in a decision that — if upheld — may pave the way for similar decisions with regard to bans on gun ownership by (nearly) all felons. The court applies the “rational basis” test, under which nearly all legal classifications are upheld, but concludes that this classification fails even that highly deferential test:

A rational nexus between a conviction for any and every felony offense and the fitness to act as a precious metals dealer simply does not exist. The legislature has not drawn any distinctions beyond the classification of felon; it has not written the statute to conform to the legitimate state interest of protecting the public from unscrupulous dealers. Many unsuitable applicants can obtain licenses, yet many suitable applicants cannot.

Felony crimes range widely, and many do not implicate the purposes identified by the State as justifying the ban. Federal felonies include mishandling of environmental pollutants, draft dodging, and certain offenses involving fish, wildlife and plants. State felonies include violating a sexton’s burial duties, illegally assisting a disabled voter, injuring a peace officer animal, and violating pollution requirements. See OLR Research Report, 2012-R-0358, Unclassified Felonies (2012). Many, if not most, of the hundreds of federal felonies and more than 265 Connecticut felonies, have no tendency whatsoever to predict unsuitability for licensure based on the interests that the State claims section 21-100(a)’s felony bar was enacted to protect.

At the same time, many misdemeanors reflect conduct that seems to be more relevant to the state’s legitimate goals than the conduct underlying many felonies. For example, illegal sale of used motor vehicle parts, illegal ticket scalping, issuing a bad check, and forgery are all misdemeanors. Moreover, the fortuity of plea bargaining may reduce felonious conduct to a misdemeanor

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California High School Blocks NRA T-Shirt Because It Depicts a Weapon

[UPDATE: The school has backed down, see below.]

So reports CBS Los Angeles:

Sophomore Haley Bullwinkle said when she wore her NRA shirt to Canyon High School last month, she landed in the principal’s office for violating the school’s dress code that forbids offensive, violent or divisive clothing….

The shirt … features a buck, an American flag and a hunter’s silhouette. It also has the words “National Rifle Association of America: Protecting America’s Traditions Since 1871” written in the center….

Principal Kimberly Fricker [wrote] in an email [to Bullwinkle’s father that], “The shirt had a gun on it, which is not allowed by school police. It’s protocol to have students change when they’re in violation of the dress code.”

But this policy (which does indeed ban all depiction of, among other things, “violence” and “weapons”) is unconstitutional, even under the relaxed First Amendment standards applicable in government-run K-12 schools. As Newsom ex rel. Newsom v. Albemarle County School Bd. (4th Cir. 2003) held in a very similar case. And it’s also illegal under California’s Leonard Law, a state statute that provides high school students with even broader protection than does the First Amendment.

For a similar story from earlier this year, see here.

UPDATE: The NRA reports (thanks to commenter D. Laden for the pointer) that the school has apologized:

Sent on behalf of Michael L. Christensen, Superintendent of Schools, Orange Unified School District:

Response to Canyon High School NRA Shirt Incident

Canyon High School has a policy prohibiting clothing depicting or promoting violence. In this incident, a student was referred to the counseling office by a security officer because she was wearing a shirt with a logo that included a rifle. The student was instructed by a staff member to change her shirt and was

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No Veto Override for Proposed Missouri Ban on Publishing Names of Gun Owners or Concealed Carry Permit Holders

I sharply criticized the proposed ban — part of a broad pro-gun-rights law that passed both houses of the Missouri Legislature, and was then vetoed by the Governor (partly on free speech grounds) — two weeks ago. A week later, the state House voted to override the veto, but the state Senate override failed, by one vote; two Republican leaders, Senate President Pro Tem Tom Dempsey and Majority Leader Ron Richard, voted against the override. Here is an excerpt from Dempsey’s statement explaining his vote:

I came to the State Capitol voting for policies in which I deeply believed. One of these was defending the right of law-abiding citizens to keep and bear arms. I am a proud and faithful supporter of the Second Amendment…. Anyone who looks at my record over the past decade will know that my support of gun rights is unassailable….

[But o]ver the past few weeks, several concerns have been raised about the constitutionality of House Bill 436. I have been advised by my own legal staff that this bill very likely violates both the freedom of the press and the freedom of speech guaranteed to all Americans. My love of the Second Amendment does not trump my love for the First. [Dempsey also had two other objections. -EV] …

My support of the Second Amendment is firm and enduring, but the issues that have been raised deserve to be addressed. I wish I could simply propose an amendment to fix the flaws that have come to light but unfortunately, the Missouri Constitution (which I also respect) does not allow us to amend a bill during veto session — we are forced to make a “take it or leave it” decision. Small errors or blemishes can sometimes be overlooked because of the overall good the

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Triggering the Second Amendment: Lund v. Rosenthal

This afternoon, in honor of Constitution Day (and because the Byrd Amendment requires it), Case Western Reserve University hosted a debate between Professor Nelson Lund of George Mason University School of Law and Professor Laurence Rosenthal of Chapman University’s Fowler School of Law. The forum, “Triggering the Second Amendment: The Constitutionality of Gun Rights and Gun Control,” was recorded and will soon be available as a webcast.  Below the fold is my live-blog of the event. [...]

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Illinois Supreme Court: Second Amendment Protects Carrying Outside the Home

From today’s unanimous decision in People v. Aguilar (Ill. Sept. 12, 2013):

As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the second amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home. Moreover, if Heller means what it says, and “individual self-defense” is indeed “the central component” of the second amendment right to keep and bear arms, then it would make little sense to restrict that right to the home, as “[c]onfrontations are not limited to the home.” Indeed, Heller itself recognizes as much when it states that “the right to have arms *** was by the time of the founding understood to be an individual right protecting against both public and private violence.”

I think the result is correct, because Heller‘s reasoning does indeed apply to carrying for self-defense in most public places, and not just in the home. Indeed, Heller and McDonald v. City of Chicago had no occasion to squarely confront this question, because they dealt with total handgun bans, including on home possession. Heller does speak of “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” and stresses that the D.C. handgun ban extends “to the home, where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 635, 629. And Heller also holds that bans on concealed carry in public are constitutional, because of the long tradition (dating back to the early 1800s) of such prohibitions.

But Heller did hold that “bear arms” includes carrying arms, and the very reference to bans on concealed carry suggests that some sort of carrying (e.g., open carrying) [...]

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The Colorado Recalls Explained

Yesterday voters in Colorado recalled two State Senators. One result was not a surprise, and the other is a shock. Of course the votes are Second Amendment victories for the right to arms, but more fundamentally, they are Fourteenth Amendment victories for Due Process of Law.

Former State Senate President John Morse represented Colorado Springs, plus the somewhat hipster mountain community of Manitou Springs. While El Paso County is strongly Republican, the interior city of Colorado Springs has been center/center-left for years. Senate District 11 was carved to make the election of a Democrat possible, and it worked. Voter registration in SD 11 is about a third, a third, and a third among Democrats, Republicans, and Independents, with Democrats having the largest third and Republicans the smallest. Morse barely won re-election in 2010, and might have lost if not for the presence of a Libertarian on the ballot.

As the conventional wisdom expected, voter turn-out was relatively low. Morse was recalled by  51-49%. The conventional wisdom of Colorado politics had been that Morse would probably lose, but that the election would be tight, and there was a chance that he might win. As things turned out, Republicans turned out greatly in excess of their registration percentage, and that was probably the difference.

Both sides had hard-working GOTV programs, but apparently the Democrats did not succeed in convincing enough of their less-enthusiastic voters to vote. This is in contrast to 2012, when Obama won the district by 21%.

Pueblo, the largest city in southern Colorado, delivered the result that stunned almost everyone. For more than a century, Pueblo has been a Colorado stronghold of working-class union Democrats. Like most of southern Colorado, it has a large Hispanic population. Obama won Senate District 3 by 19% in 2012. In 2010, Democratic Senator [...]

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Missouri Considering Ban on Publishing Names of Gun Owners or Concealed Carry Permit Holders

Here’s one part of a Missouri bill that passed both houses of the legislature, that was vetoed by the Governor, and that is now up for a veto override vote:

1. [It shall be a misdemeanor for a] person or entity [to] publish the name, address, or other identifying information of any individual who owns a firearm or who is an applicant for or holder of any license, certificate, permit, or endorsement which allows such individual to own, acquire, possess, or carry a firearm.

2. For purposes of this section, “publish” means to issue information or material in printed or electronic form for distribution or sale to the public.

So this would make it illegal for someone to

  1. Mention in a newspaper article that a named criminal had attacked someone with the criminal’s gun.
  2. Mention in a newspaper article that a named crime victim had defended himself with his own gun.
  3. Mention in a newspaper article that a named defender wasn’t going to be charged because he was properly licensed to carry a gun.
  4. Argue in print or online that some legislator or commentator is being inconsistent in supporting gun bans while owning a gun (or having a concealed carry permit) himself.
  5. Talk in a blog post about your hunting or target-shooting trip with a named friend to which he brought his gun.
  6. Talk in a blog post or newspaper article about your own gun.

And that is even if we read the statute as meaning that it shall be a crime to name a person as the owner of a gun or as a concealed carry license holder. Read literally, the statute makes it a crime to publish the name of anyone who happens to own a gun, even if you don’t say that he’s a gun [...]

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Origins of the English Militia

David Hume’s’s  The History of England (1778)  tells the story of the Danish conquest of England. (vol. 1, chapter 2 “The Anglo-Saxons”). After a series of wars, the Danes drove King Alfred off the throne, forcing him to flee incognito, disguised as a peasant. Alfred then

retired into the center of a bog, formed by the stagnating waters of the Thone and Parret, in Somersetshire. He here found two acres of firm ground; and building a habitation on them, rendered himself secure by its fortifications, and still more by the unknown and inaccessible roads which led to it, and by the forests and morasses, with which it was every way environed. This place he called Aethelingay, or the Isle of Nobles;t and it now bears the name of Athelney. He thence made frequent and unexpected sallies upon the Danes, who often felt the vigour of his arm, but knew not from what quarter the blow came. He subsisted himself and his followers by the plunder which he acquired; he procured them consolation by revenge; and from small successes, he opened their minds to hope, that, notwithstanding his present low condition, more important victories might at length attend his valour.

In fact, Alfred did emerge later, after having scouted the Danes by going into their camp disguised as a harper. He did eventually drive out many of the Danes, and subdue the rest. He then set about creating better conditions for security from invasion, and from the tyranny which the Danes had once imposed:

The king, after rebuilding the ruined cities, particularly London,e which had been destroyed by the Danes in the reign of Ethelwolf, established a regular militia for the defence of the kingdom. He ordained that all his people should be armed and registered; he assigned them a regular

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Interesting Self-Defense Story

From the Sarasota Herald Tribune:

[Vickie] Rock, 50, of Riverview, came outside armed with a .45-caliber handgun and saw [Daniel] Robertson beating [his girlfriend Christy] Vasilakos with a metal object, said Hillsborough sheriff’s spokesman Larry McKinnon.

When Rock tried to intercede, Robertson turned on her. Rock suffered several facial injuries before firing at least one round and striking Robertson, McKinnon said.

The rest of the story provides some more details, including Vasilakos’s perspective on Robertson (though of course one should take any media accounts in such a situation with a grain of salt, and more broadly take everyone’s accounts with a grain of salt). From the story, Rock’s actions seem perfectly legally proper — and likely would be seen as legally proper even in duty-to-retreat states — and morally praiseworthy.

At the same time, though much depends on the nature of the metal object, it seems likely (though not certain) that if Rock hadn’t intervened, both Robertson and Vasilakos would be alive today. Indeed, it seems possible (though far from certain, and perhaps not knowable to us) that Rock might have thought that she could have saved her own life, at the expense of submitting to the beating, even without shooting Robertson.

So whether you think this was a laudable instance of self-defense (as I do) or something that you think shouldn’t have happened may turn not just on whether it’s good to take an attacker’s life to save the victim’s life, but also whether it’s good to take an attacker’s life to prevent likely harm that is likely to be well short of death. The law in all states says yes, in allowing killing not just to protect life but also to prevent serious bodily injury (including rape), and also, in many states, to prevent robbery or even [...]

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Second Amendment Secures Some Right to Carry Loaded Firearms in Public Places

So states State v. Christian (Ore. Aug. 15, 2013):

[W]e conclude in the first instance that the ordinance [limited carrying] does, to some extent, burden protected conduct falling within the scope of the Second Amendment’s guarantee. [Footnote: … Although Heller did not define the scope of the right to self-defense outside the home, we read the opinion as recognizing a right to self-defense outside the home to a degree yet to be determined by the Court….]

But the court concluded that the ordinance at issue doesn’t restrict the right too much, partly because Oregon is a shall-issue state and people remain free to carry if they get a concealed carry license. (The court also rejected the lower court’s odd interpretation of the Portland ordinance, which I noted last year.) I think the court was right to interpret Heller as securing some right to carry outside the home, though recent lower court decisions have mostly (though not entirely) rejected such a right. [...]

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Loaded Means Loaded

From State v. Dor (N.H. May 7, 2013):

On May 8, 2012, police searched the defendant’s vehicle and found a .40 caliber semi-automatic pistol adjacent to a loaded magazine in the vehicle’s glove compartment. The pistol did not have a cartridge in the chamber or a magazine in the magazine well.

The State charged the defendant with a class A misdemeanor for “knowingly carry[ing] a loaded pistol as defined in RSA 159:4 in a vehicle without a valid license….” … RSA 159:4 provides, in pertinent part:

No person shall carry a loaded pistol or revolver in any vehicle or concealed upon his person, except in his dwelling, house or place of business, without a valid license…. A loaded pistol or revolver shall include any pistol or revolver with a magazine, cylinder, chamber or clip in which there are loaded cartridges.

The defendant argues that “with” in the second sentence should be interpreted narrowly as “joined to,” Webster’s Third New International Dictionary 2626 (unabridged ed. 2002), so that a “loaded pistol or revolver” encompasses only a firearm that contains one or more cartridges. The State counters that “with” should be interpreted broadly as “denoting nearness, agreement, or connection,” Webster’s New Dictionary and Thesaurus 625 (1990), so that a “loaded pistol or revolver” encompasses a firearm that contains no cartridges but is located near a loaded magazine or clip.

The court ruled for the defendant, in my view quite correctly. In the process, it also had a bit of constitutional analysis:

Furthermore, we reject the State’s reading of RSA 159:4 because it could render the statute unconstitutionally vague. A criminal statute is void for vagueness when it forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess at its meaning and

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Interesting New Gun Case from Massachusetts’ Highest Court

From Firearms Records Bureau v. Simkin (Mass. Aug. 8, 2013):

Simkin is a New Hampshire resident and a federally licensed firearms dealer who is engaged in the “buying and selling [of] firearms in the region, from private parties, at gun shows, and at auctions.” Since 2002, he has held a temporary nonresident Class A unrestricted license to carry firearms in Massachusetts. In February, 2009, Simkin applied to the bureau for a renewal of his license, stating as his purpose for requesting the renewal that he traveled in and through Massachusetts for business purposes, carrying firearms, ammunition, and cash, and carried concealed firearms for personal protection. The bureau renewed his license.

On November 6, 2009, Simkin traveled to Stoneham for a medical appointment. At the medical office, and in order to protect his privacy, Simkin used a pseudonym (“Horace Jones”) and registered under a Maryland address. He also declined to provide a phone number, and, at the conclusion of the medical examination, paid the $1,500 bill in cash. Prior to disrobing in the examination room, Simkin informed the medical assistant that he was armed and proceeded to secure his weapons (two firearms, ammunition, and four knives) in a locked briefcase for the duration of the examination. Employees of the medical office were “alarmed” and “concerned for their safety” based on Simkin’s conduct, and one of the employees contacted Stoneham police much later that day to report their concerns….

By letter dated November 13, 2009, [Firearms Records Bureau] director Jason A. Guida informed Simkin that his license was thereby revoked because, on the basis of the information provided to him by McKinnon and the manager of the medical office regarding the incident on November 6, Guida determined that Simkin was no longer a “suitable person” to possess a firearm in Massachusetts.

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Brady Campaign Lawsuit Against Armslist Dismissed

The decision is Vesely v. Armslist, LLC (N.D. Ill. July 29, 2013) (thanks to the Media Law Resource Center for the pointer). Here’s the Brady Campaign’s theory:

On April 13, 2011, Jitka Vesel, a 36-year-old immigrant from the Czech Republic was shot and killed by Demetry Smirnov, a Russian immigrant residing in Canada who had met Jitka online a few years earlier. Smirnov stalked her to her workplace parking lot where he shot her 11-12 times with a .40-caliber handgun….

The complaint alleges that [Smirnov] illegally purchased from a private seller whom he located through, an online gun auction site owned by defendant Armslist, LLC. The complaint alleges that the website’s design facilitates illegal gun sales to unlawful gun buyers with no background checks and no questions asked, and encourages and enables users to evade laws that allow private sellers to sell firearms only to residents of their own state by enticing prospective buyers to search for and find gun sellers throughout all 50 states….

I argued when the lawsuit was filed that it was preempted by 47 U.S.C. § 230, which generally bars lawsuits against Web sites for material posted by their users. I still think that’s so, but the court didn’t reach that theory, because it concluded that the lawsuit was unfounded under Illinois tort law. A key excerpt (paragraph break added):

To determine whether a duty exists, in light of public policy, the Court considers four factors: “(1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant.” City of Chi. v. Beretta U.S.A. Corp., 821 N.E. 2d 1099, 1125 (Ill. 2004) (citing Bajwa v. Metro. Life Ins. Co., 804 N.E.2d

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