Showing posts with label second amendment. Show all posts
Showing posts with label second amendment. Show all posts

Tuesday, April 21, 2009

Second Amendment extended - Ninth Circuit ruling

Second Amendment extended. By Lyle Denniston
SCOTUS blog, Monday, April 20th, 2009 3:21 pm

The Constitution’s protection of an individual right to have guns for personal use restricts the powers of state and local government as much as it does those of the federal government, the Ninth Circuit Court ruled Monday. The opinion by the three-judge panel can be found here. This is the first ruling by a federal appeals court to extend the Second Amendment to the state and local level. Several cases on the same issue are now awaiting a ruling by the Seventh Circuit Court.

Ruling on an issue that is certain to reach the Supreme Court, the Circuit Court concluded “that the right to keep and bear arms” as a personal right has become a part of the Constitution as it applies to the states through the Fourteenth Amendment’s due process clause.

That right, it said, “is ‘deeply rooted in this Nation’s history and tradition.’ Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the ‘true palladium of liberty.’

“Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”

But, following the lead of the Supreme Court’s decision last June in District of Columbia v. Heller, finding a personal right in the Second Amendment for the first time, the Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home.

Thus, the Circuit Court refused to strike down an Alameda County ordinance that makes it a crime to bring onto county property a gun or ammunition, or to possess them on that property. A county supervisor who sponsored the ordinance cited “a rash of gun violence” in an apparent reference to the school shootings in the late 1990s, including the one at Columbine High School in Littleton, Colo.

The Alameda ordinance, the Circuit Court said, does not involve the kind of armed self-defense that the Supreme Court had in mind in Heller. “It regulates gun possession in public places that are County property,” it concluded.

The ordinance had been challenged by Russell and Sallie Nordye, who operate a business that promotes gun shows in California. They contended that the Alameda County ordinance burdens their Second Amendment right because it makes it more difficult to buy guns.

Before the gun ordinance was adopted, gun shows had been staged at the Alameda County fairgrounds, drawing up to 4,000 people. The Nordykes said that some county officials wanted to drive gunshows out of the county, and that is what led to the ordinance’s enactment.

The Circuit Court, however, said the ordinance “does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise.”

Finally, it said, banning guns from municipal property “fits within the exception from the Second Amendment for ’sensitive places’ that Heller recognized,” the Circuit Court said.

The Court also rejected a First Amendment challenge to the ordinance, based on the Nordykes’ claim that the local law was designed to silence those who promote gun rights. “The language of the ordinance,” the Court said, “suggests that gun violence, not gun culture, motivated its passage.”

It also rejected a claim of discriminatory application of the law, because of some exceptions the county wrote into its ordinance.

The ruling was written by Circuit Judge Diarmuid F. O’Scannlain and joined by Circuit Judge Arthur L. Alarcon. Circuit Judge Ronald M. Gould joined the opinion, but also wrote separately to discuss the doctrine of incorporating rights selectively to apply to state and local government.

Wednesday, March 4, 2009

Holder, “Assault Weapons”, Reid & Pelosi

Holder’s “Assault Weapons” Folly, by David Rittgers
Cato at Liberty, Mar 03, 2009

Attorney General Eric Holder recently announced that the Obama administration will seek a new federal “assault weapons” ban. This is an ill-advised policy that defies common sense.
The ban would be a revival of a law passed in the early years of the Clinton administration that expired in 2004. The law prohibited the sale of newly-manufactured magazines holding more than ten rounds of ammunition and having two of five cosmetic features on semi-automatic rifles. If you had a pistol grip and a detachable magazine, you couldn’t have a bayonet lug. More recent proposals have attempted to ban “barrel shrouds,” which the rest of the world calls “handguards” - the place you put your hand (instead of on a hot barrel) to prevent burning it while firing.

The emphasis here is on the cosmetic - any rational discussion of the issue ought to note that an “assault weapon” is any object you use to assault someone with - and banning the presence of a bayonet lug on the barrel of a rifle is senseless. Knives, tire irons, and bricks can all serve as “assault weapons.” This is an instance where quotation marks are not just appropriate, they are required.

Much of the public support for the law was based on a warping of the issue by gun control proponents to make the public believe that these firearms are machine guns. The fully automatic weapons that gun controllers use to push this agenda have been heavily regulated by the federal government since 1934 and not produced for civilian sale since 1986. Don’t take my word for it - here’s Josh Sugarmann of the Violence Policy Center: “The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons-anything that looks like a machine gun is assumed to be a machine gun-can only increase the chance of public support for restrictions on these weapons.”

This intentional distortion has moved from advocacy groups to the attorney general’s office. Attorney General Eric Holder claims that the law is needed to counter Mexican Drug War violence, that American gun laws support “cartels employing automatic weapons and grenades.” Again, these devices are already illegal. It is far more likely that these weapons of war are from Mexican Army troops who deserted their posts for the higher pay that drug kingpins offer. The drug cartels have even taken the brazen step of setting up billboards meant to draw soldiers and police officers from their government jobs and into the drug trade. My colleague Ted Galen Carpenter wrote the book on how to deal with this issue. Holder’s War on Everything is not it.

It defies reason to think that multi-billion dollar criminal syndicates will not be able to get their hands on guns because of an American law banning cosmetic features and dictating lower magazine capacity. If the Mexican government gets better control of its own armaments, the cartels will simply go to the black market and buy the guns. Or make them. Guns are hand-crafted in the frontier provinces of Pakistan, and there is no reason that the cartels could not do the same in a country with far more industrial know-how. Three minutes of internet research will reveal plans to make fully automatic sub-machine guns, so enough capital to set up a machine shop and buy some sheet metal is all it would take.

The expired ban did not demonstrably impact crime anyway. The Centers for Disease Control conducted a study in 2003 that found no reduction of crime attributable to the law. This should come as no surprise, since most criminals’ weapons of choice are cheap, small caliber pistols. They traditionally dominate the ATF’s top crime gun list. There are some bad apples out there selling guns to people they know to be “straw buyers,” people who have clean records and re-sell the guns to those who don’t. Prosecute them. Enforce the existing laws before deciding to restrict the freedom of law-abiding citizens.

Predictably, both Harry Reid and Nancy Pelosi have temporarily quashed the issue. Let’s hope they keep it out of the halls of Congress, and focus instead on a sensible drug policy that impacts the demand created by an illicit drug market.

Pelosi and Reid realize that this proposal will do is come back to haunt Democrats in the 2010 mid-term elections, which historically trend against the president’s party anyway. Many Democrats attributed the flip of the House of Representatives to Republican hands in 1994 to the first “assault weapons” ban. Numerous experts believe that the reason Al Gore could not carry his home state of Tennessee in the 2000 election was his push for broader gun control. Blue Dog Democrats that ran on pro-gun platforms in conservative districts must be rolling their eyes. The rest of the country should do so as well, and send this proposal to the dustbin.

UPDATE: Since I started writing this, the “ban guns for Mexico’s sake” narrative has taken on a drumbeat’s tempo. 60 Minutes did this piece echoing the gun ban crusade, and the Wall Street Journal published this. Expect more of this nonsense.

Tuesday, February 17, 2009

WaPo: Domestic abuse suspects shouldn't be able to keep their guns

Armed and Dangerous. WaPo Editorial
Domestic abuse suspects shouldn't be able to keep their guns.
WaPo, Tuesday, February 17, 2009; page A12

GAIL PUMPHREY came to dread meeting her ex-husband to transfer custody of their children. Sometimes he would curse at her. Once, she said, he spit in her face. On Thanksgiving Day two years ago, he fatally shot Ms. Pumphrey and their three children -- ages 7, 10 and 12 -- before killing himself. He used a .22-caliber rifle, the same gun Ms. Pumphrey had asked a court to confiscate just three weeks before.

The Maryland General Assembly is considering two bills that would make it harder for those accused of domestic violence to keep their guns. The legislation comes too late to save Ms. Pumphrey and her children but would help prevent such tragedies in the future.

One bill would give judges the option of confiscating the firearms of domestic abuse suspects against whom temporary protective orders have been issued. The other would require judges to order the seizure of guns from suspects once final protective orders are in place. A number of states, including North Carolina and California, already have such measures. Even Virginia, not known for limiting gun ownership, prohibits domestic violence suspects from buying or carrying guns when protective orders have been issued against them.

Inexcusably, such legislation has died in the House Judiciary Committee in past years. The committee, chaired by Del. Joseph F. Vallario Jr. (D-Prince George's), has a reputation for protecting the rights of the accused -- sometimes at the expense of reasonable policy. Mr. Vallario, a criminal defense lawyer, told The Post's Lisa Rein that his main concern was that law enforcement officers accused of domestic abuse would not be able to carry their guns for work. It seems to us that Mr. Vallario should be more concerned about the safety of an abused spouse than the ability of an officer suspected of domestic violence to carry a gun.

Other critics contend that the bills unfairly target firearms. After all, they say, a spouse or partner can be harmed with a baseball bat or a knife. The statistics tell a different story: Female victims of domestic violence are more likely to be killed in shootings than through all other methods of violence combined. In Maryland, guns accounted for more than half of domestic-violence-related deaths from June 2007 to July 2008.

Lt. Gov. Anthony G. Brown (D) spoke passionately last week before the Senate Judicial Proceedings Committee about the need for tougher domestic violence laws. Mr. Brown no doubt drew upon a recent family tragedy: His cousin Catherine Brown was shot to death by an estranged boyfriend last year. Advocates for victims of domestic violence believe the legislation has a chance this year because of the O'Malley administration's support. We hope they're right. Mr. Vallario and his colleagues have the chance to save the next Gail Pumphrey.

Friday, January 30, 2009

Washington Post Editorial: Guns in Virginia

Guns in Virginia. Washington Post Editorial
Lawmakers should close the gun show loophole.
Washington Post, Friday, January 30, 2009; A18

THE VIRGINIA Senate has an unprecedented opportunity today to begin to reverse the state's abysmal record on gun regulation.

For years, state lawmakers have defeated bills requiring vendors at gun shows to conduct background checks of would-be buyers. Yet such legislation squeaked by the Senate Courts of Justice Committee by an 8 to 7 vote this week and is poised for a vote in the full Senate. Politicians of both parties, including self-described gun rights advocates, should endorse this modest bill.

Licensed gun dealers in Virginia are required to conduct background checks on buyers, including those to whom they sell at gun shows. Yet, according to the Virginia State Police, up to 35 percent of vendors at the scores of gun shows throughout the state are unlicensed and thus are under no obligation to perform the checks. This makes no sense, and the public is put at risk because felons or the mentally ill are not screened out if they attempt to purchase guns.

The Senate bill would close this loophole by requiring that even unlicensed vendors -- often hobbyists who do not make their living from gun sales -- conduct these checks. To facilitate compliance, the bill calls for the gun show promoter to ensure that those who already hold federal licenses to sell firearms will conduct checks on behalf of unlicensed vendors. The bill does not require background checks for those purchasing antique guns or for those who have concealed-weapons permits.

Gun rights advocates won a stunning victory last year before the U.S. Supreme Court when a majority of the justices determined that the Second Amendment bestows an individual right to keep and bear arms. Before this ruling, many advocates worried that gun control activists would use regulation to effectively ban gun ownership. Those worries should have been put to rest by the court's decision. There is no longer any legitimate reason for lawmakers to resist sensible provisions to ensure that only law-abiding citizens exercise this right. And the bill to require background checks by all vendors is but a minor inconvenience that respects gun-ownership rights while keeping weapons out of the hands of potentially dangerous people.