2nd Amendment Thread

[de officiis]

Heller v. District of Columbia, Civil Action No. 08-1289 (JEB), (D.D.C. May 15, 2014) (Concluded)

Opinion Link: https://ecf.dcd.uscourts.gov/cgi-bin/sh ... 8cv1289-83

5. The Renewal Requirement

Plaintiffs next challenge the provision mandating that firearm-registration certificates automatically expire three years after the date they are issued, unless the registrant renews them. See D.C. Code § 7-2502.07a(a). Registrants are eligible to renew their certificates so long as they continue to meet the District's initial registration requirements, see § 7-2502.03(a), and follow any procedures the MPD Chief establishes by rule. See § 7-2502.07a(b).

At least some of the renewal process apparently depends on when the registration certificate was issued. For firearms registered before January 1, 2011, the Chief of MPD is assigned the task of "establish[ing], by rule, a method for conducting the renewal of registration certificates." § 7-2502.07a(g). The Chief recently did just that, requiring that such registrants appear in person at the MPD's Firearm Registration Section, be fingerprinted, and submit an attestation confirming that they continue to possess the firearms in question, updating their current residential addresses, and affirming that they are still compliant with the District's various registration requirements. See 24 D.C. Mun. Regs. § 2326.2. Registrants must submit their renewals in accordance with a schedule that stretches over the course of the next two years, with each gun owner assigned a particular three-month renewal period based on his date of birth. See § 2326.3.

For firearms registered after January 1, 2011, the renewal process is specified in part by statute. Renewal notices are to be mailed to each registrant by MPD at least 90 days prior to the expiration of his registration certificate. See D.C. Code § 7-2502.07a(e)(1). Registrants must submit their renewals at least 60 days prior to the expiration of the registration certificate at issue. See § 7-2502.07a(e)(2). For each renewal, the registrant must submit a statement attesting to his continued possession of the registered firearm, his address, and his continued compliance with the various registration requirements. See § 7-2502.07a(c)(1). That statement must be submitted on a form provided by the Chief of MPD "that can be submitted online via the Metropolitan Police website, by mail, or in person." § 7-2502.07a(c)(2). It appears that the Chief may establish additional rules to govern renewal for post-January 1, 2011, registrations, see § 7-2502.07a(b), but none has yet been issued.

Presumably, the difference in treatment between pre- and post-January 1, 2011, registrants will only persist for this first round of registration renewals. In other words, the Court assumes, based on the language of the statute, that after the pre-January 1, 2011, registrants have renewed their registrations in accordance with the procedures specified by MPD, they will in the future be subject to the same expiration and renewal rules as post-January 1, 2011, registrants. To continue to treat pre- and post- January 1, 2011, registrants differently, after all, would make no sense based on the record before the Court, and the Court sees no reason to attribute any such purpose to the D.C. Council or to MPD.

Plaintiffs challenge both the fact that registration certificates expire — and thus must be renewed — and the renewal procedures themselves. To determine the constitutionality of the renewal requirement, then, the Court must answer two separate questions. First, is the "basic" fact of registration expiration and renewal permissible, in isolation from whatever renewal process has been specified by law? And second, are the specific renewal procedures selected by the District themselves consistent with the Second Amendment? As the Heller II court has already held that requiring registration renewal every three years imposes more than a de minimis burden on Plaintiffs' Second Amendment rights, see Heller II, 670 F.3d at 1255, the Court will address these issues under intermediate scrutiny.

a. Evidence Regarding Certificate Expiration and Renewal

(i) Basic Fact of Expiration and Renewal

On the first question, the Court finds that the District has presented substantial evidence that the basic fact of registration expiration and renewal furthers the government's substantial interests in this case by ensuring that the registry remains accurate and encouraging gun owners to account for their firearms. Several expert witnesses testify that requiring District gun owners to renew their registrations every three years will improve public safety by making sure that, in the time since they first registered, they have not fallen into a category of persons prohibited from owning a firearm — for example, if they had been convicted of a disqualifying crime. See Jones Decl., ¶ 23-24; Vince Decl., ¶ 22; Webster Decl., ¶ 30; 2012 Report at 10-11. Relatedly, the D.C. Council's Committee on the Judiciary observed that registration expiration and renewal would help "keep[] the registration records up to date." 2012 Report at 10. While the previous version of the registry law had not mandated renewal and instead simply "require[d] registrants to notify MPD of any change in registration status," in the meantime "[t]housands of registrants ha[d] moved, died, disposed of their guns (perhaps lost them) and ha[d] not notified MPD. [Accordingly,] MPD has told the Committee that many registrants cannot be located." Id.

Renewal, according to the evidence, will not only improve the accuracy of the District's registry, but it will also help keep track of residents' firearms. The Committee noted that requiring gun owners to renew their registrations "likely causes the owner to look for his or her gun if it hasn't been used, and this assures that the gun has not been lost or stolen." Id. at 11. Renewals also require registrants to "affirm[] continued possession of the firearm, which could prohibit an individual from later asserting that he or she did not know that the firearm was lost or stolen." Id. Indeed, Webster compares this system "to the widely-accepted Federal requirement that licensed gun dealers be audited periodically to make sure that they can account for their firearms." Webster Decl., ¶ 30. All in all, this evidence suffices to justify the District's judgment that the renewal requirement will help maintain an accurate gun registry and prompt residents to account for the weapons in their possession — both important benefits for ensuring public safety and protecting District police.

Expiration and renewal, moreover, are narrowly tailored to the District's interests in this case. Asking gun owners to renew their registrations — just like motorists must renew their driver's licenses — is hardly an oppressive burden, and the Court can imagine no easier way for the city to both maintain the accuracy of its gun registry and ensure that gun owners regularly account for their weapons other than by requiring registrants to periodically update and affirm their information. At the same time, this policy helps the District to perform continuous background checks on gun owners in the city. Indeed, it is telling that Plaintiffs themselves suggest no more narrowly tailored alternative that could achieve all three goals at once. Although there may be cleaner ways for the District to pursue each of these benefits separately, the fit here need only be reasonable, not perfect. See Schrader, 704 F.3d at 990. The basic fact of registration expiration and renewal satisfies that requirement.

(ii) Renewal Procedures

On the second question, the Court similarly finds that there is substantial evidence supporting the actual renewal process that has been specified by the District and by MPD. MPD's announced process for pre-January 1, 2011, registrants, who must renew their certificates in person and submit to fingerprinting, finds support in the evidence justifying in-person registration and fingerprinting. See Part III.C.2.b, supra. Just as the District may require in-person appearance and fingerprinting at the time of registration in order to combat fraud and perform background checks, it is a reasonable inference that those means are also appropriate at the time of renewal for the same reasons. The renewal process specified by statute for post-January 1, 2011, registrants appears even less burdensome, since it provides that such renewals may be submitted not only in person, but also online or via mail. See D.C. Code § 7-2502.07a(c)(2). If MPD ultimately enacts more onerous policies for those renewals, Plaintiffs may file another Second Amendment challenge. As the record stands, however, the Court finds that the renewal procedures that have been put in place so far are justified by the evidence.

The specified renewal procedures, moreover, are sufficiently narrowly tailored to survive intermediate scrutiny. Requiring in-person renewal for pre-January 1, 2011, registrants might well be broader than necessary to achieve the District's goals, since the D.C. Council has provided that post-January 1, 2011, registrants will also be able to renew their registrations online or by mail. See § 7-2502.07a(c)(2). Given that this requirement is apparently only a onetime deal, however, and that it will only apply to a fraction of District gun owners, the Court finds that it is "not substantially broader than necessary" to achieve the city's interests in this case. Ward, 491 U.S. at 799 (emphasis added); see also Heller II, 670 F.3d at 1258 (intermediate scrutiny does not require government to use "the least restrictive means") (internal quotation marks omitted). The outcome might be different if the District were to require in-person renewals for all gun owners in perpetuity, but on these facts, the government has not colored too far outside the lines. As for the post-January 1, 2011, registrants, the online and mail renewal options are minimally burdensome and fit well to the District's interests in receiving updated registry information and ensuring that gun owners account for their weapons. They therefore satisfy intermediate scrutiny.

b. Plaintiffs' Counterarguments

Plaintiffs raise several objections to the District's arguments on this point. None of their three points, however, alters the outcome.

First, Plaintiffs complain that the District's experts "cite no studies showing that periodic registration renewal . . . reduce crime or protect police officers." Pl. Mot. at 34. But Plaintiffs lost on this point far earlier — as the Court has already explained, the District need not provide empirical studies conclusively proving the effectiveness of the challenged provisions. It need only put forward evidence "reasonably believed to be relevant to the problem" at hand, Renton, 475 U.S. at 51-52, in order to show that "in formulating its judgments, [the D.C. Council] has drawn reasonable inferences based on substantial evidence." Turner I, 512 U.S. at 666. The District has met that burden here.

Next, Plaintiffs claim that it is unnecessary to require gun owners to renew their registrations in order to ensure that they have not committed a disqualifying criminal offense subsequent to their initial background checks — the District could simply conduct those checks remotely. See Plaintiffs' Excerpted Deposition of Cathy Lanier at 27-28. Indeed, to some extent, it appears that this is already the District's current practice. See Plaintiffs' Excerpted Deposition of Lieutenant Jon Shelton at 8-11. While the District could conduct background checks remotely, however, Plaintiffs forget that this is not the sole purpose of the renewal requirement. As already noted, the renewal process also serves to maintain the accuracy of the information in the District's gun registry and to ensure that gun owners periodically account for their weapons. Even without the need to perform a background check, then, the renewal requirement is narrowly tailored to the District's important interests.

Finally, Plaintiffs charge that the renewal requirement imposes an especially severe and unjustifiable burden on individuals who own several firearms, since they may need to appear multiple times at MPD to renew their registrations and pay multiple renewal fees. The process for renewing pre-January 1, 2011, registrations, however, appears to allow gun owners to renew multiple weapons in a single trip, see Firearms Registration Renewal Application, Metropolitan Police Department, available at http://goo.gl/LUKYqT (last visited May 15, 2014) (permitting renewal of three different firearm-registration certificates via a single form); Firearms Registration Renewal Application — Additional Registered Firearms, Metropolitan Police Department, available at http://goo.gl/DP0jdL (last visited May 15, 2014) (permitting renewal of twelve additional firearm registration-certificates via a single form), and the renewal fees are assessed on a per-registrant basis, not per firearm. See Firearms Registration Renewal: Complete Renewal Procedures, Metropolitan Police Department, available at http://mpdc.dc.gov/node/750552 (last visited May 15, 2014) ("Regardless of the number of firearms you have registered, you will pay a total of $48, which includes a registration fee of $13 and a fingerprinting/FBI background check fee of $35."). There is thus no special burden on multiple-gun owners who are renewing pre-January 1, 2011, certificates. The process for renewing post-January 1, 2011, has not yet been announced in full, but as the record stands, there is no reason to believe that it will impose a more onerous burden on multiple-gun owners than the system just described.

In any event, as alluded to earlier, see Part III.C.4, supra, the Second Amendment has so far been read to protect only "a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald, 130 S. Ct. at 3044. While one or two firearms may be necessary for such purposes, a large collection of weapons is not. The Constitution, in short, guarantees the right "to keep and bear arms," not the right "to keep and bear an armory." As an individual seeks to acquire more guns, he moves farther and farther away from the right to bear arms and closer toward the constitutionally unprotected goal of assembling a personal arsenal. Any special burden the renewal requirement places on owners of multiple firearms, then, is outside the Second Amendment's ken.

Because the record evidence demonstrates that the expiration of firearm-registration certificates and the accompanying renewal requirement are substantially related to the District's interests in protecting police and promoting public safety as well as narrowly tailored to those interests, the provisions survive intermediate scrutiny.

6. The Administrative and Enforcement Provisions

Plaintiffs also challenge several provisions related to the administration and enforcement of the District's gun-registry scheme. These include the requirement that gun owners keep their registration certificates with them when they are in possession of their registered firearms and be able to exhibit the certificate upon the demand of law enforcement, see D.C. Code § 7-2502.08(c); the requirement that gun owners notify MPD in writing if their registered weapons are ever lost, stolen, or destroyed, if they sell or transfer their weapons, or if they change their name or address, see § 7-2502.08(a); the fees associated with the registration process, see § 7-2502.05(b); Shelton Decl., ¶ 8; and the penalties for violations of the registration scheme. See § 7-2507.06.

Although both parties devote several pages of their pleadings to this matter, the constitutionality of these provisions has already been established by the D.C. Circuit. In Heller II, the panel majority noted that "plaintiffs . . . challenge several administrative and enforcement provisions incidental to the underlying regime," including the ones just listed, but that these provisions were "lawful insofar as the underlying regime is lawful and hence enforceable." Heller II, 670 F.3d at 1249 n.*. That holding by the Court of Appeals is binding on this Court, and Plaintiffs have provided no reason to question it. Because the Court has found the underlying registration regime lawful, these provisions are also bulletproof.

D. Plaintiffs' Standing to Challenge Vision Requirement

The final provision of the D.C. gun registry at issue in this case is the requirement that a registrant "not [be] blind." D.C. Code § 7-2502.03(a)(11). Because none of the Plaintiffs is blind, however, they lack standing to challenge this rule. The Court, consequently, need not address Plaintiffs' argument about why even the blind should be allowed to own firearms.

To sue in federal court, a plaintiff must have "standing." Standing requires that a plaintiff "allege[] such a personal stake in the outcome of the controversy as to warrant the invocation of federal-court jurisdiction." Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S. Ct. 1142, 173 L. Ed. 2d 1 (2009) (internal quotation marks omitted). Standing comprises three elements: (1) that the plaintiff suffered a concrete and particularized injury that is actual or imminent, not conjectural or hypothetical; (2) that there is a causal relationship between the plaintiff's injury and the defendant's conduct; and (3) that it is likely that a victory in court will redress the plaintiff's injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). "[A] plaintiff must demonstrate" all three elements of standing "for each claim he seeks to press." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S. Ct. 1854, 164 L. Ed. 2d 589 (2006).

It is undisputed that none of the Plaintiffs in this case is "blind" as defined by D.C. law. See Def. Mot., Exh. E (Plaintiffs' Responses to Defendants' First Requests for Admissions), Resp. 3. They have thus suffered no "concrete and particularized" injury as a result of the District's prohibition on blind gun registrants. Lujan, 504 U.S. at 560; see also Pennell v. City of San Jose, 485 U.S. 1, 8, 108 S. Ct. 849, 99 L. Ed. 2d 1 (1988) ("A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement."). As a result, they lack standing to challenge the vision requirement.

Fighting every possible skirmish, Plaintiffs contend that "because of age and other factors," they "may well face blindness, and need to plan accordingly for the uncertainties that condition may entail." Pl. Mot. at 49. That may well be true, but it is both too "speculative" to support their claim, Whitmore v. Arkansas, 495 U.S. 149, 157, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990), and the kind of "'generalized grievance' shared in substantially equal measure by all or a large class of citizens" that "normally does not warrant exercise of [federal court] jurisdiction." Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).

In a last-ditch effort to save this piece of their case, Plaintiffs grasp hold of a single phrase from the Heller II decision, where the court observed:
ome of the plaintiffs' arguments — in particular with respect to the provisions requiring registrants to demonstrate knowledge about firearms, meet a vision standard, and take a training course —are so cursory we might, in other circumstances, consider them forfeit. As we will in any event be remanding other registration requirements to the district court, however, we see no reason to foreclose these particular plaintiffs from fleshing out their arguments as well as supplementing the record, if they can.
Heller II, 670 F.3d at 1256 n.* (emphasis added) (citations omitted). Plaintiffs contend that the court's stray reference to "these particular plaintiffs" affirms their standing to challenge the vision requirement. But they read too much into too little. Even if the Court were to accept that the D.C. Circuit intended these three words to bear so much weight, it is clear from context that the Court of Appeals was referring to the question of whether it should dismiss the vision-requirement claim as forfeit or remand it so that Plaintiffs could develop it further. The court passed no judgment on the question of whether Plaintiffs had standing to press their vision claim — it simply allowed that "these particular plaintiffs" could try to explain that claim on remand. In now considering the question, the Court finds no standing to exist.

IV. Conclusion

For the foregoing reasons, the Court will issue a contemporaneous Order that will grant in full the District's Motion to Dismiss and deny Plaintiffs'. The Court will dismiss with prejudice all of Plaintiffs' challenges to the District's firearm laws, except for their challenge to the vision requirement for gun registration, which, having been decided on jurisdictional grounds, will be dismissed without prejudice.

[de officiis]

Analyzing the Constitutional Implications of the Department of Veterans Affairs' Process to Determine Incompetency: Is the Federal Government Violating the Second Amendment and Due Process?

Joshua Flynn-Brown

41 Hastings Const. L.Q. 521 (Spring 2014)

Introduction

Over the past decade, the U.S. Department of Veterans Affairs ("VA") quietly reported hundreds of thousands of veterans 1 to the National Instant Criminal Background Check System. 2 As of June 1, 2012, there were 153,298 names on the list with a shocking 99.3% of them from the VA. 3 Placement on the list prevents veterans from obtaining firearms from federal firearms licensees, effectively precluding exercise of the fundamental right to own a firearm. Adding insult to injury, placement on the list not only results in a denial of the constitutional right to firearms but also places veterans in the same category as convicted criminals. 4

The process by which the VA adds veterans to the gun ban list is highly unusual and illegal for one simple reason: the VA overreports veterans to the list. Once it determines that a veteran requires a fiduciary to administer benefit payments, the VA automatically reports that veteran to the gun ban list, consequently denying his or her right to possess and own firearms. The VA attempts to justify its actions by relying on a single federal regulation, 38 C.F.R. § 3.353, which grants limited authority to determine incompetence in the context of financial incompetence - i.e., whether or not the veteran can adequately administer benefit payments. 5 The regulation's core purpose is limited to appointing a fiduciary for financial purposes and is not designed to deny the right to possess or own firearms. 6 Yet, the VA irrationally assumes that a veteran who cannot properly manage VA payments is a danger to public safety and is incapable of adequately managing a firearm, thereby justifying adding the veteran's name to the gun ban list. Not only is the VA intentionally misinterpreting and misapplying existing federal firearm restrictions, it is unconstitutionally applying these federal laws to veterans merely because they cannot manage VA benefits. Thus, without proper legal authority and without affording due process of law, the VA subjects veterans to a broad sweeping firearm ban. 7 Throughout Supreme Court jurisprudence there does not exist a case on point that allows firearm restrictions to be employed based upon a financial incompetence standard. 8 Furthermore, in the aftermath of the Supreme Court holding that the Second Amendment is a fundamental right, the constitutionality of the VA's conduct is suspect and worthy of analysis.

Full Article: http://www.hastingsconlawquarterly.org/ ... Online.pdf

[de officiis]

Deeper Than a Paper Cut: Is It Possible to Regulate Three-Dimensionally Printed Weapons or Will Federal Gun Laws Be Obsolete Before the Ink Has Dried?

Caitlyn R. McCutcheon

14 U. Ill. J.L. Tech. & Pol'y 219 (Spring 2014)

The legal issues implicated by the ability to manufacture items from a desktop 3-D printer will initially and primarily concern intellectual property rights, such as patent, copyright, and trademark infringement. 6 This technology, however, will also sneak up on current federal firearm laws and threaten to significantly undercut existing attempts at gun control. 7 The lack of regulations to adequately police the manufacture of 3-D printed firearms, the 3-D printed weapons themselves, or the possession of such, may have extreme effects on civil rights and criminal liabilities. 8 Indeed, the regulation of 3-D printers and their output may be the next arena in which the War on Terror and organized crime is fought. 9

...

It began as a hypothetical concept but quickly became a dangerous reality: 3-D printers allow individuals to effortlessly and inexpensively transform digital files into deadly physical objects. 15 Recreational gun enthusiasts have already manufactured a firearm using a 3-D printer and made the blueprints accessible on the Internet. 16 This technology gives the general public the ability to create untraceable and undocumented do-it-yourself guns. The most notable consequence is that unqualified, or ill-intentioned, in-home weapon manufacturers could sidestep current federal gun laws. The individual would not need a license, registration, background check, or even much technical knowledge - just a 3-D printer and Internet access. 17 The rapid advancement in 3-D printing technology and improvements to 3-D printed firearms are threatening the stagnant regulatory scheme.

Part II of this Note gives background on the 3-D printing process, provides an explanation of digitally manufactured firearms, and discusses the current federal regulations at issue. Part III examines the various approaches to and inherent flaws in regulating the manufacture or possession of 3-D printed firearms. It also considers the policy implications and the heightened concerns created with the 3-D printer's application to criminal activity. Part IV recommends an approach to regulating 3-D printed firearms that balances the most critical individual, technological, and public policy concerns.

Full Article: http://illinoisjltp.com/journal/wp-cont ... tcheon.pdf

[de officiis]

Our Non-Originalist Right to Bear Arms

Robert Leider

89 Ind. L.J. 1587 (Fall 2014)

District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.

This paper challenges much of the conventional wisdom about [D.C. v.] Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions — an approach that sounds more in popular constitutionalism than originalism.

Full Article: https://papers.ssrn.com/sol3/papers.cfm ... id=2084805

[de officiis]

The Assault Weapons Ban--Politics, the Second Amendment, and the Country‘s Continued Willingness to Sacrifice Innocent Lives for "Freedom"

John J. Phelan IV

77 Albany Law Review 579 (2014)

This note analyzes the flaws in the now-expired Assault Weapons Ban and proposes that a new assault weapons ban be enacted without the fundamental weaknesses of the initial ban.6 Part II looks at recent mass shootings America. Part III explores the definition of an ―assault weapon.‖ Part IV looks to what prompted Congress to act when it passed the Assault Weapons Ban in 1994. Part V inspects the major issues with the Assault Weapons Ban and looks at the immense power the gun lobby has over our elected officials. Part VI looks to what individual states have done by enacting their own assault weapons bans.7 Within that part there is also an explanation why state-by-state legislation is not a sufficient solution to the glaring problem of mass shootings in this country, and why federal legislation is a necessary step towards solving this quandary. Part VII suggests what a renewed Assault Weapons Ban would have to address in order to be a successful piece of legislation. Lastly, part VIII of this note explains why a renewed Assault Weapons Ban would not be a violation of Second Amendment rights under the analysis set forth in the 2008 United State Supreme Court decision District of Columbia v. Heller8 and the 2010 decision McDonald v. City of Chicago.9

Full Article: http://www.albanylawreview.org/Articles ... Phelan.pdf

This guy basically takes on the NRA.

[de officiis]

Regulating the Militia Well: Evaluating Choices for State and Municipal Regulators Post-Heller

by Benjamin H. Weissman

82 Fordham L. Rev. 3481 (May 2014)

Until its 2008 decision in District of Columbia v. Heller, the U.S. Supreme Court had never struck down any firearm restrictions as violating the Second Amendment of the U.S. Constitution. In Heller, the majority held that the Second Amendment’s text and original public meaning protect an individual’s right to keep and bear arms for self-defense in the home. Both proponents and opponents of gun control regulation saw the Heller decision as ushering in a new era of Second Amendment jurisprudence.

On the one hand, Justice Antonin Scalia’s opinion for the majority in Heller was seen as a vindication of an inherent natural right that had been obscured for too long. On the other hand, many see the Heller decision as having few consequences (besides at the margins) for “America’s already weak gun control regime.” Until the Supreme Court offers more guidance on how far the Second Amendment right extends outside the home for self-defense, it is the lower courts that will ultimately decide how and to what extent that right may be restricted by government regulation. According to several commentators, in the years since Heller and McDonald v. City of Chicago, lower courts have shied away from invalidating any current restrictions besides total bans similar to the ones at issue in those decisions.

This Note will examine how the Supreme Court’s decisions in Heller and McDonald have affected state and municipal attempts to regulate the possession and use of firearms. In the wake of those decisions, lower courts have developed several loose frameworks for evaluating challenges to firearm restrictions. Given this confusing judicial landscape, scholars and commentators offer competing views of what that landscape means for the choices that state and local regulators can and should make. This Note will ultimately evaluate these views in light of the developments and trends in recent case law.

Full Article: http://fordhamlawreview.org/articles/re ... -heller-em

[de officiis]

THE FEDERALIST SOCIETY NATIONAL LAWYER'S CONVENTION--2013: TEXTUALISM AND DISTRICT OF COLUMBIA V. HELLER

Eugene Volokh

37 Harv. J.L. & Pub. Pol'y 729 (Summer 2014)

The text of the Second Amendment has played a large role both in judicial debates about the Amendment and in public ones. The majority opinion and dissents in District of Columbia v. Heller 1 talk extensively about the constitutional text. Lower courts continue to talk about it. 2 The public talks about it, too. Indeed, Second Amendment textualism has been kept alive (while it was largely dormant in the courts and among scholars) by people who thought, "Well, we read the text, and we think it means something other than what many courts have said."

So let me talk a bit about some of the textual issues that came up in Heller and that have come up since. I don't want to focus on repeating the arguments in Heller--those of you who are interested have read Heller for yourselves. Rather, this Essay will address some of the things we mean when we say "textualism," and some of the ways in which good textualists must go beyond the text of the particular document being considered.

Full Article: http://www.harvard-jlpp.com/wp-content/ ... _final.pdf

[de officiis]

Edward Peruta v. County of San Diego, No. 10-56971

United States Court of Appeals for the 9th Circuit - 2/13/14

Opinion Summary:

The panel reversed the district court’s summary judgment and held that a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense. Plaintiffs challenged a County of San Diego policy which interpreted California’s restriction on carrying handguns in public. California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations, absent the showing of, among other things, good cause. Under San Diego’s policy, concern for one’s personal safety alone is not considered good cause. The panel first held that a law-abiding citizen’s ability to carry a gun outside the home for self-defense fell within the Second Amendment right to keep and bear arms for the purpose of self-defense. Applying the analysis set forth in District of Columbia v. Heller, 554 U. S. 570 (2008), the panel then held that it did not need to apply a particular standard of heightened scrutiny to the San Diego policy because the “good cause” restriction amounted to a destruction of the Second Amendment right altogether. The panel concluded that San Diego County’s “good cause” permitting requirement impermissibly infringed on the Second Amendment right to bear arms in lawful self-defense.

Dissenting, Judge Thomas stated that San Diego County’s “good cause” policy fell squarely within the Supreme Court’s definition of a presumptively lawful regulatory measure. Judge Thomas stated that in dealing a needless, sweeping judicial blow to the public safety discretion invested in local law enforcement officers and to California’s carefully constructed firearm regulatory scheme, the majority opinion conflicted with Supreme Court authority, the decisions of sister circuits, and Ninth Circuit precedent.

Motions for rehearings have been filed and are pending in this case.

[de officiis]

Federal judge declares D.C. ban on carrying handguns in public unconstitutional

By Martin Weil and Clarence Williams - July 26, 2014

A federal judge has declared that one of the District’s principal gun control laws is unconstitutional and ordered that its enforcement be halted.

The ruling by Judge Frederick J. Scullin Jr., made public Saturday, orders the city to end its prohibition against carrying a pistol in public.

It was not clear Saturday night what immediate effect the order would have.

The order was addressed to the District of Columbia and Police Chief Cathy Lanier, as well as their employees and officers and others “who receive actual notice” of the ruling. But it could not be determined Saturday night who had received notice. Also unclear was whether the city would appeal and what effect that would have on the enforcement ban.

Legal sources said Saturday night that in general all parties to a case must be duly informed of a ruling and given the opportunity to appeal before it takes effect.

The D.C. attorney general represented the city. A spokesman for the attorney general’s office said he had not seen the order and declined to comment. However, he said city lawyers would study the ruling and consider their options.

A spokeswoman for the police department said she was not aware of the ruling.

The case was heard by Scullin, a senior U.S. District judge who normally sits in New York. In his ruling, Scullin said that, based on recent decisions, “there is no longer any basis” to conclude that the city’s “total ban on the public carrying of ready-to-use handguns outside the home is constitutional.”

Scullin said he was stopping enforcement of the law “unless and until” the city adopted a constitutionally valid licensing mechanism.

The suit against the city was filed by four named plaintiffs and the Second Amendment Foundation, which is based in Washington state.

http://www.washingtonpost.com/local/cri ... story.html

Link to copy of opinion @ Fox News: http://www.foxnews.com/politics/interac ... -decision/

Some key language from the opinion:

[H]aving concluded that carrying a handgun outside the home for self-defense comes within the meaning of "bear[ing] Arms" under the Second Amendment, the Court must now ask whether the District of Columbia's total ban on the carrying of handguns within the District "infringes" that right.

This question is not difficult to answer. As the Seventh Circuit stated in Moore v. Madigan, 702 F. 3d 933 (7th Cir. 2012), "[a] blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof that it would." Id. at 940. This does not mean that the government cannot place some reasonable restrictions on carrying of handguns; for example, "when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that's a lesser burden, the state doesn't need to prove so strong a need." Id. The District of Columbia appears to be the only jurisdiction that still has such a complete ban on the carrying of ready-to-use handguns outside the home. That does not mean that other jurisdictions are indifferent to the dangers that the widespread public carrying of guns; rather, those jurisdictions "have decided that a proper balance between the interest in self-defense and the dangers created by carrying guns in public is to limit the right to carry a gun to responsible persons rather than to ban public carriage altogether[. ]" Id. at 940. In addition, to "the usual prohibitions of gun ownership by children, felons, illegal aliens, lunatics, and in sensitive places such as public schools, the propriety of which was not questioned in Heller . .. some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms." Id. at 940-41 (internal parenthetical omitted). Some states "also permit private businesses and other private institutions (such as churches) to ban guns from their premises." Id. at 941.

In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of ready- to-use handguns outside the home is constitutional under any level of scrutiny. Therefore, the Court finds that the District of Columbia's complete ban on the carrying of handguns in public is unconstitutional. Accordingly, the Court grants Plaintiffs' motion for summary judgment and enjoins Defendants from enforcing the home limitations of D. C. Code ß 7-2502.02(a) (4) and enforcing D. C. Code ß 22-4504(a) unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms. 4 Furthermore, this injunction prohibits the District from completely banning the carrying of handguns in public for self-defense by otherwise qualified non-residents based solely on the fact that they are not residents of the District.

[de officiis]

Education Law Symposium: Article: School Shootings and the Legislative Push To Arm Teachers

Allen Rostron

45 U. Tol. L. Rev. 439 (Spring 2014)

... the Sandy Hook shootings revived an ... r society.

Full Article: http://www.utoledo.edu/law/studentlife/ ... 453TOC.pdf