Tuesday, September 24, 2013
According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard.
"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.
There is also the question of the lack of due process accorded to Professor Guth, as some have noted.
But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin. Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee. On this view, his speech should be protected under the First Amendment. Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.
Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).
Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.
Thursday, September 12, 2013
The Illinois Supreme Court ruled today in Illinois v. Aguilar that a state law banning the aggravated unlawful use of weapons, or AUUW, violated the Second Amendment. At the same time, the court upheld state law banning possession of a firearm, or UPF, by a person under 18 years of age.
The ruling overturns the conviction of the criminal defendant in the case under the AUUW, but upholds the conviction under the UPF.
But the ruling is limited to the state's old (and defunct) AUUW and doesn't affect current law. That's because Aguilar was convicted under the state's old AUUW. The Seventh Circuit already struck that law as violating the Second Amendment (and later denied en banc review) in Moore v. Madigan. The state has since amended the law to allow for concealed carry of firearms with a permit and with certain restrictions. Thus today's ruling only affects Aguilar; it doesn't say anything about the state's current law.
Illinois's old AUUW--the one Aguilar was convicted under--says:
(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense . . . .
The court, following the Seventh Circuit in Moore, held that the Second Amendment includes a right to keep and bear arms outside the home for individual self-defense, and that the "comprehensive," "categorical" ban in the old AUUW law "amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court." The court said, "In no other context would we permit this, and we will not permit it here either.
At the same time, the court upheld the state's UPF law. (That law was not changed in the wake of Moore.) It says:
A person commits the offense of unlawful possession of firearms or firearm ammunition when:
(a) He is under 18 years of age and has in his possession any firearm of a size which may be concealed upon the person . . . .
The court said that the Second Amendment doesn't protect a juvenile's right to possess a firearm--that the UPF restriction falls into the category of allowable "longstanding prohibitions on the possession of firearms" that the Supreme Court carved out in Heller. The court said that laws banning possession of firearms by minors have been around for a long time (even if many colonies permitted or even required minors to own and possess firearms for purposes of militia service, as Aguilar argued).
Thursday, August 1, 2013
In its opinion in Drake v. Filko, a panel of the Third Circuit has rejected a Second Amendment challenge to New Jersey's handgun permit law, N.J.S.A. § 2C:58 - 4. Affirming the district judge, the majority opinion by Judge Ruggero Aldisert (who was appointed to the Third Circuit by President Lyndon Johnson) upheld the statutory "justifiable need” standard for a permit to carry a handgun in public.
The majority declined to "definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller," referring to the Supreme Court's controversial 2008 decision of Heller v. District of Columbia finding that the Second Amendment should be interpreted as including an individual right. Yet the majority moved on to assume that even if the individual right extended beyond the home, does a "requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense burdens conduct within the scope of that Second Amendment guarantee. It concluded that the “justifiable need” standard of the Handgun Permit Law is a longstanding regulation that enjoys presumptive constitutionality under the teachings articulated in Heller, noting that a "close analogue to the New Jersey standard can be found in New York’s permit schema," which was upheld by the Second Circuit as we discussed last November.
The majority acknowledged that this could well settle the matter. But "in this new era of Second Amendment jurisprudence," it decided it was important to proceed to apply the means-end scrutiny under its circuit precedent. And as in most means-end inquiries, the level of scrutiny was a central issue. Predictably, the challengers argued for strict scrutiny, but their argument rested upon an analogy to First Amendment prior restraint doctrine. The court rejected that analogy, canvased the Second Amendmen levels of scrutiny being applied in the circuits, and concluded that "intermediate scrutiny" was the correct standard, and articulated it thusly:
under intermediate scrutiny the government must assert a significant, substantial, or important interest; there must also be a reasonable fit between that asserted interest and the challenged law, such that the law does not burden more conduct than is reasonably necessary.
After an extensive discussion, the majority found that the NJ law satisfied this standard.
In a dissenting opinion as lengthy as the majority opinion, Circuit Judge Thomas Hardiman disagreed with almost every aspect of the majority's well-reasoned opinion. Judge Hardiman argued that the Second Amendment should apply outside the home, argued that NJ's gun restriction was historically not longstanding, and while agreeing that intermediate scrutiny was the correct standard, disagreed that it was satisfied.
While the United States Supreme Court denied certiorari in the Second Circuit opinion upholding NY's limitation on concealed gun laws, a petition for certiorari will most probably be filed in this Third Circuit case. At some point, the Court may again take up the confusing issues left in the wake of its two controversial decisions in Heller v. District of Columbia and McDonald v. City of Chicago.
Tuesday, July 9, 2013
The Illinois state legislature today voted in both houses to override Governor Quinn's "amendatory veto" of the state's concealed carry bill. The move means that Illinois is the last state in the Union to allow concealed carry of a firearm, with none of the changes recommended by Governor Quinn. We posted most recently here.
The move also meets a deadline set by the Seventh Circuit in ruling Illinois's prior ban on concealed carry unconstitutional, in violation of the Second Amendment. If the state had not enacted a concealed carry law (with licensing and certain restrictions), the Seventh Circuit ruling would have meant that Illinoisians could carry a concealed weapon without a license, permit, training, or other restriction.
State AG Lisa Madigan had asked for, and received, more time from the Supreme Court to determine whether to appeal the Seventh Circuit's ruling. (The full Seventh Circuit denied en banc review.) In light of the legislature's move today, she indicated that the case is moot.
To register a handgun in the state of New York, the fee is $3-10. However, a New York statute, New York State Penal Law § 400.00(14), allows the City of New York and the adjoining county of Nassau on Long Island to set and collect a different fee. The challengers argued that this statutory provision violated equal protection. Additionally, the challengers argued that the fee set by New York City - - - $340 for a three year license - - - violated the Second Amendment. In its opinion in Kwong v. Bloomberg, a unanimous Second Circuit panel upheld both the state statute and the city regulation, affirming the district judge.
Judge Jose Cabranes rejected the argument that the $340 fee set by NYC Admin. Code § 10-131(a)(2) places too great a burden on their Second Amendment rights. Following the path set by other judges, the Second Circuit held that the Supreme Court’s First Amendment fee jurisprudence provides the appropriate foundation for analyzing the constitutionality of fees under the Second Amendment. Here, the court held that the "undisputed evidence" demonstrated that "the $340 licensing fee is designed to defray (and does not exceed) the administrative costs associated with the licensing scheme."
Moreover, the mere fact that the license is more expensive does not make it a substantial burden on one's Second Amendment rights. The opinion interestingly includes a "see also" and cites Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) including this quote in the parenthetical: (“The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to [exercise the right] cannot be enough to invalidate it.”)
Even if the NYC law were subject to intermediate scrutiny - - - as the concurring opinion by Judge John Walker asserts - - - and as the Second Circuit previously applied to a concealed handgun law - - - the fee would still survive, as Judge Walker agrees.
As for the equal protection claim against the state statute allowing differential fees, the court rejected the argument that because a fundamental right is at stake, the state statute merited strict scrutiny. The court held that a fundamental right was not "burdened" and further that geographic classifications are not suspect. Applying rational basis, the court found it easily satisfied.
Again, Judge Walker concurring would apply intermediate scrutiny, and again, he found that the higher fee would survive the heightened level of scrutiny.
The disagreement amongst the judges regarding the standard is thus of no moment - - - at least in this case. But further litigation about what constitutes a burden on a Second Amendment rights will likely continue.
Monday, July 8, 2013
It's summer in North America and that means scholarship-time for legal academics. No matter what the subject of your in-progress/forthcoming/almost finished article, take time to read a brief essay by Ronald Collins and Lisa Lerman, Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts By Ronald K.L. Collins & Lisa Lerman, 88 Wash. L. Rev. 321 (2103), available here.
They argue that your author's footnote might need a bit of expansion to disclose any direct or indirect compensation or involvement in your subject. Disclosure is not the norm in law reviews, especially when it comes to academics as opposed to practioners. The comparison is even more stark when it comes to the practices in other disciplines.
But their suggestion, if rare, is hardly new. Indeed, they quote from the AALS "Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities":
A law professor shall disclose the material facts relating to receipt of direct or indirect payment for, or any personal economic interest in, any covered activity that the professor undertakes in a professorial capacity . . . . Disclosure of material facts should include: (1) the conditions imposed or expected by the funding source on views expressed in any future covered activity and (2) the identity of any funding source, except where the professor has provided legal representation to a client in a matter external to legal scholarship under circumstances that require the identity to remain privileged under applicable law. If such a privilege prohibits disclosure the professor shall generally describe the interest represented.
And, perhaps less surprising perhaps, it's something Justice William O. Douglas recommended almost half of a century ago.
They provide some scintillating examples worth consideration. These might make you reflect not only on your own ethical responsbility to disclose, but perhaps also upon the missing disclosures in sources upon which you rely, as in the Second Amendment area which we discussed.
And it is certainly worth passing on to your school's law review editors.
Tuesday, July 2, 2013
Illinois Governor Pat Quinn today issued an "amendatory veto" on Illinois HB 183, the state legislature's effort to provide for lawful concealed carrying of handguns, after the Seventh Circuit earlier this year ruled that Illinois's ban on concealed carry violated the Second Amendment.
Governor Quinn's amendatory veto sends HB 183 back to the legislature, along with his recommended changes to the bill. The legislature can override the veto as to the original HB 183 by a 3/5 vote in both houses; it can approve Governor Quinn's recommendations, however, by a bare majority in both houses. If the legislature so approves, and if the Governor certifies that the approval meets his recommendations, the amendatory-vetoed-bill becomes law.
The Governor may return a bill together with specific recommendations for change to the house in which it originated. The bill shall be considered in the same manner as a vetoed bill but the specific recommendations may be accepted by a record vote of a majority of the members elected to each house. Such bill shall be presented again to the Governor and if he certifies that such acceptance conforms to his specific recommendations, the bill shall become law. If he does not so certify, he shall return it as a vetoed bill to the house in which it originated.
Governor Quinn objected to the very loose standards for concealed carry in HB 183. In particular, the bill allows people to carry guns into establishments serving alcohol and into the workplace, and it contains no cap on the number of guns or the size or amount of ammunition clips that may be carried. Governor Quinn also objected to the bill's override of local authority to ban assault weapons--a provision not required by the Seventh Circuit's ruling (which went only to concealed carry).
The Seventh Circuit gave the state until July 9 to write a concealed carry law. According to the Chicago Tribune, "Quinn's move also raises the possibility that the General Assembly could fail to agree on either option and leave Illinois with a wide-open gun law that even sponsors of the concealed carry law have sought to avoid."
Sunday, June 23, 2013
A divided Second Circuit panel upheld the conviction of Harold Turner in its opinion in United States v. Turner for threats in a blog post against Seventh Circuit Judges Easterbrook, Bauer, and Posner. Turner objected to the judges' ruling in National Rifle Association of America v. Chicago holding that the Second Amendment was not incorporated as to the states (and municipalities), later reversed by the United States Supreme Court in McDonald v. City of Chicago.
killing of family members of United States District Judge Joan Lefkow in 2005.
The jury was instructed as to the First Amendment and nevertheless convicted. The panel majority concluded "based on an independent review of the record that the core constitutional fact of a true threat was amply established, and that Turner’s conduct was unprotected by the First Amendment."
Among Turner's arguments that his blog statements did not constitute a "true threat" was his use of the passive voice. For the majority, this was overly technical and belied the other statements regarding the location of these judges and the killing of another judge's family members. Syntax could be important - - - but not here.
Dissenting Judge Rosemary Pooler - - - who, coincidentally, was a member of a Second Circuit panel (along with Sonia Sotomayor) holding that the Second Amendment was not incorporated against the states - - -carefully considered the "true threats" doctrine as compared to incitement/advocacy doctrines. For Pooler,
Turner’s communications were advocacy of the use of force and not a threat. It is clear that Turner wished for the deaths of Judges Easterbrook, Posner, and Bauer. But I read his statements, made in the passive voice, as an exhortation toward “free men willing to walk up to them and kill them” and not as a warning of planned violence directed toward the intended victims. This reading is furthered by the fact that Turner’s words were posted on a blog on a publicly accessible website, and had the trappings of political discourse, invoking Thomas Jefferson’s famous quotation that “[t]he tree of liberty must be replenished from time to time with the blood of tyrants and patriots,” Although vituperative, there is no doubt that this was public political discourse.
[citations omitted]. But Pooler continued that this did not mean that Turner's speech was constitutionally protected. Instead, the question should be whether Turner's speech was an incitement protected - - - or not - - - under Brandenburg v. Ohio (1969). She quotes the district judge on this point but concludes by noting that Turner was not charged under the incitement statute, but only the threat statute.
Judge Pooler seems to have the better view here, as the blog post was not directed to the persons threatened but exhorted others to act. But the majority would view such a construction as overly technical.
Friday, May 3, 2013
Kansas thumbed its nose at the federal government and its current and future gun laws recently in SB 102, the Second Amendment Protection Act, which declares federal gun laws unenforceable in the state.
In particular, SB 102 says that the state legislature "declared" that firearms and accessories "manufactured commercially or privately and owned in Kansas and that remain within the borders of Kansas . . . have not traveled in interstate commerce" and therefore are not subject to federal regulation, including any federal registration requirement, under the Commerce Clause. In short, the law seeks to insulate firearms and accessories that are made and kept only within the state from federal regulation under the Commerce Clause. This reading of the Clause would deny the federal government authority to regulate activities that have a substantial effect on interstate commerce--a well settled congressional authority. (The law also says that component parts imported from other states don't transform an otherwise Kansas-made firearm into an item in interstate commerce.) To that extent, the law seems well tailored to test this long-standing aspect of congressional Commerce Clause authority--the power to regulate intrastate activities that have a substantial effect on interstate commerce. If so, that's unlikely to go anywhere. (Even in last summer's ACA/individual-mandate case, the Court gave no indication that it would wholly reconsider Congress's power to regulate activities that have a substantial effect on interstate commerce.)
More, SB 102 outlaws enforcement of federal law--even by federal law enforcement. Enforcement of federal law is a felony in Kansas, but the legislature gave federal law enforcement officials this gift: Kansas won't arrest or detain them prior to, or during the pendancy of, any trial for a violation. In other words, the charge, trial, and conviction are all just part of the political theater surrounding this obviously invalid law.
(In addition to the substantive portions of the law, SB 102 also includes the usual statements for this kind of law--statements about the Tenth Amendment (in support of a robust idea of states' rights) and the Second Amendment (as an absolute bar to any gun regulation). It also has a section on the Ninth Amendment.)
Attorney General Eric Holder shot back, reminding the state of the Supremacy Clause, and concluding that "the United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law."
Governor Brownback responded, arguing that the measure enjoyed wide bi-partisan support in the state. He said that this meant that "[t]he people of Kansas have clearly expressed their sovereign will. It is my hope that upon further review, you will see their right to do so."
Saturday, April 27, 2013
While the facts may not be as originally reported, the NRA t-shirt of West Virginia High School Student has been causing consternation. Was he really suspended - - - and arrested - - - for wearing a t-shirt?
Such a result is most likely inconsistent with Tinker v. Des Moines Independent Community School District. But that's not the full constitutional or perhaps factual story.
Monday, April 15, 2013
In a closely watched petition for certiorari in Kachalsky v. Cace, the Supreme Court declined an opportunity to review the Second Circuit's upholding of NY's "concealed carry" law.
Recall that the Second Circuit in Kachalsky v. County of Westchester applied intermediate scrutiny
New York's requirement that applicants prove “proper cause” to obtain licenses to carry handguns for self-defense under New York Penal Law.
Friday, April 5, 2013
A three-judge panel of the Second Circuit ruled this week in United States v. Bryant that the Second Amendment does not protect a right to possess a gun for drug trafficking. With the ruling, the Second Circuit joins the Seventh and Ninth Circuits in rejecting Second Amendment challenges to 18 U.S.C. Sec. 924(c), providing criminal sanctions for using or carrying a firearm during and in relation to a drug trafficking crime.
The Second Circuit seized on language in D.C. v. Heller that says that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," and that "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." (Emphasis added, both times.) The court ruled that possession of a gun for a drug trafficking crime is (obviously) not possession for a lawful purpose, and therefore federal law can punish such possession without running afoul of the Second Amendment. The court explained:
Here, Bryant may have purchased and possessed the Remington shotgun for the "core lawful purpose" of self-defense but his right to continue in that possession is not absolute. The jury determined there was sufficient evidence to convict Bryant of drug trafficking and also to convict him of possessing a firearm in connection with that drug trafficking. . . . Thus, once Bryant engaged in "an illegal home business," he was no longer a law-abiding citizen using the firearm for a lawful purpose, and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms.
Friday, March 22, 2013
A state judge ruled that a Lousiana statute that criminalizes gun possession by felons violated the state's new and enanced right to bear arms, according to the Times-Picayune. The judge ruled the criminal ban unconstitutional and dismissed the felon possession charge against the defendant in the case. The ruling will go directly to the state supreme court.
Louisiana voters last year overwhelmingly passed a proposed state constitutional amendment, Proposed Amendment 2, that made "the right to keep and bear arms . . . fundamental" and explicitly provided for strict scrutiny review of any restriction of that right. The amendment also did away with previous language that permitted the state to prohibit the carrying of a concealed weapon. Here's the Lousiana SOS backgrounder; here are the ballot measures.
Under the new amendment, courts faced with a restriction on "the right to keep and bear arms" must apply strict scrutiny review. According to Judge Darryl Derbigny, Louisiana's statute criminalizing felon possession of guns just didn't cut it.
Saturday, February 23, 2013
A three-judge panel ruled yesterday in Peterson v. Martinez that the Second Amendment doesn't protect a person's right to carry a concealed weapon in public. The court didn't even apply a particular level of scrutiny or other constitutional test, because it ruled as a threshold matter that the Second Amendment doesn't even apply--that concealed carry doesn't even come within the Second Amendment's sweep.
The plaintiff in the case challenged a Colorado law that allows concealed carry permits for Colorado citizens only (and not out-of-staters). The plaintiff was a Washington resident, and he therefore didn't qualify. He argued that the ban on concealed carry for out-of-staters violated the Second Amendment, the right to travel, and Article IV Privileges and Immunities.
In ruling against the plaintiff on his Second Amendment claim, the court quoted Robertson v. Baldwin (1897), which said that "the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons." The court recognized this as dicta, but said that it followed Supreme Court dicta nearly as closely as it followed holdings, and, in any event, the Court in neither Heller nor McDonald clarified things. (If anything, the court said, those cases only strengthened the Robertson language.) Moreover, the court said that bans on concealed carry are "longstanding." For these reasons, it ruled that the Second Amendment didn't even apply--that concealed carry doesn't fall within the Second Amendment's protection.
Judge Lucero concurred, writing that even if concealed carry fell within the Second Amendment, Colorado's ban on concealed carry for out-of-staters would satisfy the appropriate constitutional test--intermediate scrutiny--because of the state's interest in public safety, and because much of the information necessary to determine whether an individual is qualified for concealed carry is kept in locally maintained databases. In other words, the state couldn't promote its interest in public safety by licensing out-of-staters, because it couldn't get the information necessary to determine whether they qualified based on other criteria.
The court also rejected the plaintiff's right-to-travel and Article IV claims. As to the right to travel, the court said that Colorado's ban isn't anything like the kinds of infringements on the right that other courts, including the Supreme Court, have recognized. As to Article IV, it said that concealed carry is not a privilege or immunity protected by Article IV, as evidenced by the longstanding bans on concealed carry (the same reason why it ruled that concealed carry isn't covered by the Second Amendment).
The ruling came the same day as the Seventh Circuit's en banc ruling overturning Illinois's law banning carrying ready-to-use guns in public. The two bans are different, though, and the courts' approaches are, too. Thus the Seventh Circuit looked to whether carrying a ready-to-use gun outside the home goes to self-defense; it said that it did, and that Illinois's ban thus violated the Second Amendment. The Tenth Circuit looked to whether concealed carry even comes within the Second Amendment's reach. It looked to history to conclude that it doesn't, and thus upheld Colorado's ban on concealed carry for out-of-staters.
Friday, February 22, 2013
The Seventh Circuit today denied en banc review of its earlier three-judge panel decision in Moore v. Madigan overturning Illinois's prohibition on carrying a ready-to-use gun outside the home. The panel held that the prohibition violated the Second Amendment. Today's denial reaffirms that ruling and sets the case up for potential Supreme Court review. (As of this writing, Illinois AG Lisa Madigan's press office couldn't say whether the state would seek Supreme Court review.)
Recall that the case challenged Illinois's prohibition on carrying guns outside the home. The earlier panel held that the text, history, and recent precedent on the Second Amendment all supported the conclusion that the Second Amendment right to self-defense extends outside the home. Judge Posner wrote that opinion; Judge Williams dissented.
Judge Hamilton, joined by Judges Rovner, Wood, and Williams, dissented from today's denial of en banc review. The dissent echoed Judge Williams's earlier dissent--that the majority's reading stretches the Supreme Court's holdings in Heller and McDonald, both of which turned on a right of self-defense in the home:
First, extending the right to bear arms outside the home and into the public sphere presents issues very different from those involved in the home itself, which is all that the Supreme Court decided in [Heller] and [McDonald]. I will not repeat the debate in the panel opinions reviewing the historical and empirical evidence, for that debate was, in the majority's view, essentially dicta. The core of the panel majority's reasoning is that because there is a need for self-defense outside the home as well as in, Heller and McDonald should extend to public carrying of loaded firearms. . . . The logic has some appeal, but its simplicity overlooks qualitative differences between a private home and public streets and buildings that must be considered as we try to interpret [those cases].
Judge Hamilton also noted that the majority's approach sets the Second Amendment test somewhere between rational basis review and strict scrutiny, thus allowing a range of gun regulation, even if not an outright ban on carrying guns outside the home:
- reasonable limits on who can carry a gun outside the home, including training and proficiency requirements;
- reasonable limits on where qualified persons can carry firearms in public;
- reasonable limits on how qualified persons may carry firearms (e.g., loaded or not, concealed, etc.);
- reasonable limits on which firearms may be carried; and
- allowing private bans (by bar owners, restaurant owners, and the like) on firearms.
Wednesday, February 13, 2013
President Obama's proposals to ban assault weapons and limit the size of magazines violates the Second Amendment, according to David B. Rivkin, Jr., and Andrew M. Grossman writing in last week's WSJ. They say that the ban and limit would interfere with the Second Amendment right to bear arms for self defense--a right, they say, that ought to be applied every bit as rigorously as the First Amendment right to free speech.
Lots of gun-rights advocates have made similar claims, but Rivkin and Grossman's piece may be particularly notable: Rivkin was on the early edge of certain other constitutional claims that many did not take seriously at the time but that were nevertheless ultimately vindicated. Recall that he argued early in the debates that the universal coverage provision, or the so-called individual mandate, in the Affordable Care Act exceeded congressional authority under the Commerce Clause. (Rivkin made that argument on the pages of the WSJ, too.) Many didn't take this seriously. But last summer, the Court said he was right (although it also upheld congressional authority to enact the provision under its taxing power, which Rivkin also argued against).
Anyway, here's Rivkin's case against President Obama's proposals:
[Assault weapons] may look sinister, but they don't differ from other common weapons in any relevant respect--firing mechanism, ammunition, magazine size--and so present no greater threat to public safety. Needless to say, the government has no legitimate interest in banning guns that gun-controllers simply do not like and would not, themselves, care to own.
Also constitutionally suspect are restrictions on magazine size. There is no question that a limit of 10 rounds (as the president has proposed) or seven (as enacted by New York state last month) would impair the right to self-defense. A magazine with 10 rounds may provide adequate protection against a single nighttime intruder. But it may not: What if there are two intruders?
In short: assault weapons and 10-round magazines may be necessary for self-defense, and there's no good reason for government to restrict them.
Rivkin and Grossman argue that Second Amendment restrictions--even including things like requirements to carry gun insurance and even especially high taxes on ammunition--ought to get the full First Amendment treatment: strict scrutiny, or something close to it.
Wednesday, January 23, 2013
Representative Steve Stockman (R-TX) and Senator Rand Paul (R-KY) today introduced companion bills that would overturn President Obama's series of recent orders on gun control. Politico reports here; The Hill here; and Stockman's press release is here. (Rep. Stockman, you may recall, earlier called for President Obama's impeachment over the orders.)
According to Stockman's press release, his objection is more about separation of powers than infringement on the Second Amendment, though he mentions both. As to powers, he argues that "the Constitution flatly prohibits the President from making up his own laws." Stockman's legislation, the Restore The Constitution Act, would
declare any past, present or future executive action that infringes on the powers and duties of Congress in Article I, Section 8 of the Constitution, or the Second Amendment to the Constitution or that would require the expenditure of federal funds not specifically appropriated for the purpose of executive action, is advisory only and has no force or effect unless enacted by law.
Wednesday, December 26, 2012
An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar. The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."
The newspaper's actions come in the wake of renewed conversations regarding gun control and ownership. However, the disclosure of information using google maps is not new. Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage. (Recall Prop 8 is now before the United States Supreme Court.)
While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant. In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state. Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous. The names were thus disclosed.
State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records. The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.
[image screenshot via]
Friday, December 21, 2012
ConLawProf Adam Winkler's book Gun Fight: The Battle Over the Right to Bear Arms in America published in 2011 has understandably receiving renewed attention.
One of the more interesting arguments Winkler makes is that the Black Panthers were the true pioneers of modern pro-gun advocacy, at a time when the National Rifle Association championed gun regulation.
Winkler's article for The Atlantic, The Secret History of Guns, also published last year and adapted from the book, is definitely worth a (re)read.
Thursday, December 20, 2012
The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."
Any mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:
As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.
In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.
Professor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation. In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts." He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists. Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence." Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.
Ford's arguments about the social science literature, however, are exceedingly well-taken. In sum, it is inconclusive at best. Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:
The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.
Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games. This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.
[image: Mortal Kombat via]