2nd Amendment Thread

[de officiis]

U.S. Const., 2nd Amend.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Findlaw Second Amendment Annotations: http://constitution.findlaw.com/amendme ... dment.html

Presser v. Ill., 116 U.S. 252 (1886)

Wikipedia Summary:

Presser v. Illinois, 116 U.S. 252 (1886), was a decision of the Supreme Court of the United States holding that "Unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States." Saying the Second Amendment to the United States Constitution limited only the power of Congress and the national government to control firearms, not that of the state and that the right peaceably to assemble was not protected by the clause referred to except to petition the government for a redress of grievances.

Quote from opinion:

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States. It was so held by this court in the case of United States v. Cruikshank, 92 U.S. 542, 553, in which the Chief Justice, in delivering the judgment of the court, said, that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in The City of New York v. Miln, 11 Pet.139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States." See also Barron v. Baltimore, 7 Pet. 243; Fox v. The State of Ohio, 5 How. 410; Twitchell v. Commonwealth, 7 Wall. 321, 327; Jakson v. Wood, 2 Cowen, 819; Commonwealth v. Purchase, 2 Pick. 521; United States v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Iredell, 250; Andrews v. State, 3 Heiskell, 165; Fife v. State, 31 Ark. 455.

Opinion Text: http://caselaw.lp.findlaw.com/scripts/g ... &invol=252

United States v. Cruikshank, 92 U.S. 542 (1876)

Wikipedia Summary:

United States v. Cruikshank, 92 U.S. 542 (1876)[1] was an important United States Supreme Court decision in United States constitutional law, one of the earliest to deal with the application of the Bill of Rights to state governments following the adoption of the Fourteenth Amendment.

The case arose during the Reconstruction Era from the 1872 Louisiana gubernatorial election which was hotly disputed, and led to both major political parties certifying their slates of local officers, and the Colfax massacre which followed. Despite a federal judge ruling that the Republican-majority legislature be seated, growing social tensions finally erupted on April 13, 1873, when an armed group of white Democrats attacked African American Republican freedmen, who had gathered at the Grant Parish Courthouse in Colfax, Louisiana, to protect it from the pending Democratic takeover.[2] Over 100 African American freedmen were killed in the massacre, compared to only an estimated three whites.

Federal charges brought against several members of the white mob under the Enforcement Act of 1870, prohibiting two or more people from conspiring to deprive anyone of their constitutional rights, were appealed to the Supreme Court. Among these charges including hindering the freedmen's First Amendment right to freely assemble and their Second Amendment right to keep and bear arms. In its ruling, the Supreme Court overturned the convictions against the white men, holding that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment only applies to state action, not individual citizens.[3] The Court also ruled that the First Amendment right to assembly was not intended to limit the powers of the State governments in respect to their own citizens.[4] In addition, the Justices ruled that the Second Amendment only restricts the power of the national government, and that it does not grant private citizens a constitutional right to keep and bear arms.[5]

For the next several decades after the Cruikshank ruling, blacks citizens in the South were left at the mercy of increasingly hostile state governments, which passed laws restricting voting based on race, turned a blind eye on paramilitary groups such as the Ku Klux Klan, Knights of the White Camelia, White League and Red Shirts, and ignored any request to grant blacks the right to keep and bear arms.

Quote from opinion, at p.553:

The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States.

Opinion Text: http://supreme.justia.com/cases/federal ... /case.html

United States v. Miller, 307 U.S. 174 (1939)

Wikipedia Summary:

United States v. Miller involved a criminal prosecution under the National Firearms Act of 1934 (NFA). Passed in response to public outcry over the St. Valentine's Day Massacre, the NFA requires certain types of firearms (including but not limited to fully automatic firearms and short-barreled rifles and shotguns) to be registered with the Miscellaneous Tax Unit (later to be folded into what eventually became the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF) which at the time was part of the Bureau of Internal Revenue (ancestor of today's Internal Revenue Service),[1] with a $200 tax paid at the time of registration and again if the firearm was ever sold.
Defendants Miller and Layton filed a demurrer challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment. District Court Judge Heartsill Ragon accepted the claim and dismissed the indictment, stating, "The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'" Judge Ragon provided no further explanation of his reasons.[2]

The U.S Government appealed the decision and on March 30, 1939, the U.S. Supreme Court heard the case. Attorneys for the United States argued four points:

1. The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.

2. The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.

3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.

4. The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.

Neither the defendants nor their legal counsel appeared at the Supreme Court. A lack of financial support and procedural irregularities prevented counsel from traveling.[3] Miller was found shot to death in April, before the decision was rendered.[4]

Decision

On May 15, 1939 the Supreme Court, in an opinion by Justice McReynolds, held: The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held:

1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U. S. 506,[1] and Narcotic Act cases. P. 307 U. S. 177.

2. Not violative of the Second Amendment of the Federal Constitution. P. 307 U. S. 178.

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

Opinion Text: http://supreme.justia.com/cases/federal ... /case.html

[de officiis]

D.C. v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22-28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47.

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition--in the place where the importance of the lawful defense of self, family, and property is most acute--would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64.

Opinion Text: http://caselaw.lp.findlaw.com/scripts/g ... vol=07-290

[de officiis]

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)

Wikipedia Summary:

McDonald v. Chicago, 561 U.S. 3025 (2010), is a landmark[1] decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.

Initially the Court of Appeals for the Seventh Circuit had upheld a Chicago ordinance banning the possession of handguns as well as other gun regulations affecting rifles and shotguns, citing United States v. Cruikshank, Presser v. Illinois, and Miller v. Texas.[2] The petition for certiorari was filed by Alan Gura, the attorney who had successfully argued Heller, and Chicago-area attorney David G. Sigale.[3] The Second Amendment Foundation and the Illinois State Rifle Association sponsored the litigation on behalf of several Chicago residents, including retiree Otis McDonald.

The oral arguments took place on March 2, 2010.[4][5] On June 28, 2010, the Supreme Court, in a 5–4 decision, reversed the Seventh Circuit's decision, holding that the Second Amendment was incorporated under the Fourteenth Amendment thus protecting those rights from infringement by local governments.[6] It then remanded the case back to Seventh Circuit to resolve conflicts between certain Chicago gun restrictions and the Second Amendment.

Quote from Opinion:

Two years ago, in District of Columbia v. Heller, 554 U.S. 570 (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia's, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

Opinion Text: http://www.chicagoguncase.com/wp-conten ... 8-1521.pdf

[de officiis]

AN ANALYSIS OF ACT 283: ALABAMA'S NEW GUN LEGISLATION

By Aaron L. Dettling

Americans own no fewer than 200 million small arms. 1

And, by one estimate, over 160,000 Alabama citizens-about three percent of the state's population-have a permit to carry a concealed pistol 2 There is no doubt that America's long tradition of private firearm ownership is unique in the world, and that Alabamians relish it about as much as anyone else.

After more than two centuries of relative silence on the meaning of the Second Amendment, the United States Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. , 130 S. Ct. 3020 (2010), established that the Second Amendment guaranteed an individual right to bear arms, and that the right was protected from infringement by the state and the federal governments alike.

Meanwhile, crazed individuals have used firearms in particularly horrific criminal acts, leading some in Congress and in various state legislatures to propose stricter limits on private firearm ownership. So many forces pulling in opposing directions made it inevitable that individuals' rights under the Second Amendment, traditional concepts of private property rights and employers' prerogatives to govern employee conduct would come into contact with one another.

On May 21, 2013, Governor Bentley signed into law Act 2013-283 ("Act 283" or "the Act"). Act 283 is a wide-ranging revision of the law relating to firearms in Alabama. At 38 pages, the Act addresses a broad range of firearms-related topics, some of which have received attention in local news media, and some of which have not been as widely discussed or understood.

Most of the provisions of Act 283 do not directly affect employers' employment policies, but some certainly do. This article provides an overview of the provisions of the Act, with particular emphasis on employers' and businesses' rights and obligations under it.

Full Article: https://www.alabar.org/publications/al- ... index.html

[de officiis]

Heller v. District of Columbia, 399 U.S. App. D.C. 314, 670 F.3d 1244 (2011)

In June 2008 the Supreme Court held the District of Columbia laws restricting the possession of firearms in one's home violated the Second Amendment right of individuals to keep and bear arms. See District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783. In the wake of that decision, the District adopted the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17–372, which amended the Firearms Control Regulations Act of 1975, D.C. Law 1–85. The plaintiffs in the present case challenge, both facially and as applied to them, the provisions of the District's gun laws, new and old, requiring the registration of firearms and prohibiting both the registration of “assault weapons” and the possession of magazines with a capacity of more than ten rounds of ammunition. The plaintiffs argue those provisions (1) are not within the District's congressionally delegated legislative authority or, if they are, then they (2) violate the Second Amendment.

The district court granted summary judgment for the District and the plaintiffs appealed. We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements. We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented. . . .

Kavanaugh, Dissenting:

The Second Amendment to the Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In District of Columbia v. Heller, the Supreme Court held that the Second Amendment confers "an individual right to keep and bear arms." 554 U.S. 570, 595, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). In McDonald v. City of Chicago, the Court added that the right to keep and bear arms is a "fundamental" constitutional right implicit in our scheme of ordered liberty and "deeply rooted in this Nation's history and tradition." 130 S. Ct. 3020, 3036, 3042, 177 L. Ed. 2d 894 (2010).

In Heller, the Court ruled that the District of Columbia's ban on the possession of handguns violated the Second Amendment. 554 U.S. at 635. In the wake of Heller, the District of Columbia enacted a new gun law. As relevant here, D.C. bans possession of most semi-automatic rifles and requires registration of all guns possessed in the District of Columbia. See D.C. Code §§ 7-2501.01(3A)(A)(i), 7-2502.01-.10.

In this case, we are called upon to assess those provisions of D.C.'s law under Heller. In so doing, we are of course aware of the longstanding problem of gun violence in the District of Columbia. In part for that reason, Heller has engendered substantial controversy. See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009); Richard A. Posner, In Defense of Looseness, The New Republic, Aug. 27, 2008, at 32. As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction. Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.

In my judgment, both D.C.'s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.
. . .

Opinion Text: https://www.casetext.com/case/heller-v- ... zI0edwk1QM

[de officiis]

This is Gun Country: The International Implications of U.S. Gun Control Policy

Laura Mehalko

35 B.C. Int'l & Comp. L. Rev. 297 (Winter 2012)

Abstract:

Mexican drug trafficking organizations are the largest providers of illicit drugs to the United States. They have also grown to rely on advanced, high-power weaponry and to use their nearly military-grade armament to maintain control over smuggling corridors, and local drug production areas. Cartels are also linked to nearly 40,000 deaths over the last five years, many of which were committed with guns originating in the United States. The United States is likely the most prevalent source of weapons for the increasingly violent cartels. The U.S. government estimates that nearly ninety percent of all weapons used in the drug war originate in the United States. An analysis of current gun control policy in the United States and Mexico suggests this is likely the case; Mexico has particularly strict gun control laws in contrast to the relatively lenient gun control regulation in the United States. Both countries have implemented domestic policies aimed at reducing the southward flow of arms into Mexico, yet so far have had little success. This Note argues that arms trafficking has been facilitated by current U.S. gun control policy, and it will likely continue without a foundational shift in either U.S. or international policy.

Full Article: http://www.bc.edu/content/dam/files/sch ... _1_web.pdf

[de officiis]

TAKING AIM AT FELONY POSSESSION

Alexander C. Barrett

93 B.U.L. Rev. 163 - January, 2013

Introduction

Among the many social issues to capture attention in American politics, one of the most persistently divisive is the debate over gun control. 1 This debate is frequently colored by the biased efforts of both the pro-gun and gun control lobbies. 2 The gun control debate has, of course, taken place in the shadow of the Second Amendment's guarantee of the right to keep and bear arms. 3 Prior to 2008 and the Supreme Court's decision in District of Columbia v. Heller, 4 however, the nature of the right to bear arms had not been frequently discussed by the Court but was the subject of much scholarly debate. In particular, scholars and commentators disagreed as to whether the Second Amendment secured an individual right to each citizen, or merely a collective right associated with militia service. 5 Heller squarely resolved the debate over the nature of the right to bear arms in favor of an individual right, 6 which is fully applicable against the states. 7 Numerous questions remain, however, concerning the scope of the right recognized in Heller. One of those questions is to what extent the federal and state governments may limit the right to bear arms. This Note explores the potential for future development of the law in one context in which governments frequently choose to limit the right to bear arms, firearm possession by convicted felons.

...

This Note concludes that neither Heller nor the historical and means-ends justifications on which some courts currently rely support such sweeping holdings in cases involving only violent offenders. The effect of these rulings is to say that the Second Amendment permits the government to limit the firearm possession of tax evaders and polluters to the same extent as that of murderers and rapists. While this would be a relatively unobjectionable outcome if dictated by Heller or the history of felon dispossession, or supported by a compelling justification, several courts appear to have totally foreclosed the possibility of nonviolent felons' successfully challenging § 922(g)(1) based on overly broad holdings in cases dealing only with violent offenders, and without due regard to the merits of doing so. This Note further concludes that those courts that have so held, or have yet to address the issue, should carefully (re)consider an approach similar to those that the Third, Fourth, and Seventh Circuits articulate. This Note does not purport to suggest that § 922(g)(1) ultimately will or should be upheld as applied to any particular type of felon. On the other hand, this Note does argue that the question deserves more consideration than some lower courts are currently giving it, and presents a closer and more complex issue than those courts have intimated.

Part I introduces the nature, scope, and possible limitations of the Second Amendment right articulated in Heller. Part II describes the standards employed by the various courts of appeals in evaluating Second Amendment claims. Part III explains why more thorough consideration of potentially meritorious challenges to § 922(g)(1) is necessary. Finally, Part IV explains why Heller and the historical and means-ends justifications currently relied on by some courts do not totally foreclose the possibility of a successful challenge to § 922(g)(1).

Full Article: http://www.bu.edu/law/central/jd/organi ... ARRETT.pdf

[de officiis]

United States v. Reese and Post-Heller Second Amendment Interpretation

E. Garret Barlow

2012 BYU L. Rev. 391 (2012)

I. Introduction

In United States v. Reese, the Tenth Circuit ruled that 18 U.S.C. § 922(g)(8) (2006), a statute prohibiting an individual subject to a domestic protection order from possessing any type of firearm, was constitutional. 1 In coming to this conclusion, the court determined that § 922(g)(8) was subject to intermediate scrutiny, meaning the government had the burden of showing it had an important objective that was advanced by means substantially related to the objective. 2 The court's rationale behind applying intermediate scrutiny was based on its interpretation of the Supreme Court's decision in District of Columbia v. Heller 3 and is supported by other circuits. 4

Despite intercircuit support for intermediate scrutiny and a two-step analysis in Second Amendment cases, the method is not followed uniformly, and there are questions as to whether the approach is actually supported by the Supreme Court's decision in Heller. In a challenge to the developing intermediate scrutiny standard, Judge Kavanaugh on the D.C. Circuit recently wrote a dissenting opinion asserting that the Supreme Court rejected application of balancing tests in Second Amendment challenges. 5 According to Judge Kavanaugh, the Supreme Court created a framework for reviewing Second Amendment questions with a categorical test built on text, history, and tradition.

This Note compares the reasoning of the courts that applied intermediate scrutiny with the reasoning in Judge Kavanaugh's dissent and concludes that the Supreme Court's decision in Heller can be read to support either view. Because judicial balancing is commonplace in constitutional interpretation and pure categoricalism is rare, the Court will have to be more clear than it was in Heller if it wishes to establish a categorical approach to evaluating Second Amendment laws. Part II of this Note reviews developing Second Amendment jurisprudence by looking at the Supreme Court's decision in Heller and how circuit courts have interpreted it. Part III looks at the Tenth Circuit's decision in United States v. Reese. Part IV examines Judge Kavanaugh's interpretation of Heller, which contradicts the one adopted by most circuits. Part V considers the battle between categoricalism and balancing that appears to have arisen in Second Amendment jurisprudence. Part VI concludes.

Full Article: http://digitalcommons.law.byu.edu/cgi/v ... =lawreview

[de officiis]

The Original Plain Meaning of the Right to Bear Arms

Peter D. Junger

63 Case W. Res. 141 - Fall 2012

The Second Amendment is the fly in the ointment--if not the trout in the milk--of constitutional interpretation. The accepted stratagem of constitutional scholars is to pretend that it is not there--or, at most, to pass it off in a footnote. But even in a footnote the constitutional protection of the right "to keep and bear arms" is an embarrassment; consider Tribe's claim in a footnote--the footnote that contains the only reference to the Second Amendment in his brilliant treatise--that

the congressional debates . . . indicate that the sole concern of the second amendment's framers was to prevent such federal interferences with the state militia as would permit the establishment of a standing national army and the consequent destruction of local autonomy.1

Totally ignoring it is equally embarrassing for, no matter how much we wish it would go away, it is there. It is almost enough to make one wish that the Constitution had remained unwritten.

Only the Humpty Dumpty--sic volo, sic jubeo--school of constitutional analysis appears capable of dealing with it. 2 The members of the plain meaning school, which is not to be confused with the "ordinary language" school of philosophy, are likely to be embarrassed by its words: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." 3 Either this language does not have a plain meaning or it plainly forbids laws, at least federal laws, 4 outlawing the possession of arms, at least those arms, such as swords, rifles, and pistols, that existed when the Constitution was adopted. 5 The conclusion, however, that the Second Amendment forbids gun control laws is politically unacceptable to either the "conservatives" who believe that the government can constitutionally do whatever it wants (except violate the "Takings Clause" of the Fifth Amendment), or the "liberals" who believe in the First Amendment, equal opportunity, and gun control laws. The plain meaning of the Second Amendment--if there is one--is palatable only to libertarians who find the plain meaning of other parts of the Constitution, such as the Sixteenth Amendment, anathema. . . .

Full Article: http://law.case.edu/journals/lawreview/ ... Junger.pdf


Holding Fire: Why Long Waiting Periods to Buy a Gun Violate the Second Amendment

Brian Burns

7 Charleston L. Rev. 379 - Spring 2013

I. INTRODUCTION

On December 14, 2012, a deranged man burst into Sandy Hook Elementary School in Newtown, Connecticut. 2 Armed with a semiautomatic rifle and two handguns, the gunman slaughtered twenty-six people - twenty of them children - before turning one of the handguns on himself. 3 The guns used in the shooting were owned by the man's mother, whom he shot and killed earlier that day. 4

The Newtown massacre has reawakened calls for government-enforced gun control. 5 Recently, President Obama announced twenty-three executive actions designed to combat gun violence while urging Congress to pass a bill banning so-called assault weapons. 6 Because this activity comes just five years after the Supreme Court held that the Second Amendment protects a broad individual right to keep and bear arms for self-defense, 7 the stage is set for a legal battle over the future of gun rights in this country.

One important aspect of the legal battle over the Second Amendment revolves around waiting periods for the purchase of firearms. 8 These waiting period laws, which mandate a cooling off period before a gun purchaser can take delivery of a firearm, are currently active in eleven states. 9 The waiting periods in these laws range in length from twenty-four hours to ten or fourteen days. 10

This Note examines the constitutionality of waiting period laws as a regulation of the Second Amendment right to keep and bear arms. While it recognizes that short, reasonable waiting periods may be constitutionally permissible, it argues that the upper limit of these periods should be twenty-four hours. 11

Part II of this Note looks at the Second Amendment as defined by the modern Supreme Court. Part III explores how lower courts have dealt with the Court's rulings in the face of recent Second Amendment challenges. Part IV explores current waiting period laws. Part V puts waiting periods to the constitutional test, analyzing arguments on both sides of the issue before determining that longer waiting periods - those extending beyond twenty-four hours - should be struck down. Part VI concludes.

Full Article: http://www.charlestonlawreview.org/char ... 2debd5.pdf


A Robust Individual Right to Bear Arms Versus the Public's Health: the Court's Reliance on Firearm Restrictions on the Mentally Ill

Katherine L. Record and Lawrence O. Gostin

6 Charleston L. Rev. 371

"None of us can know with any certainty what might have stopped these shots from being fired or what thoughts lurked in the inner recesses of a violent man's mind," said President Barack Obama while trying to console the nation in the wake of the January 2011 attempted assassination of Representative Gabrielle Giffords in Tucson, Arizona. 1 The shooting at a civic gathering left six bystanders dead, renewing the politically divisive debate about the appropriate response to violence: ban dangerous weapons or prohibit dangerous individuals from possessing firearms?

The public overwhelmingly supports limiting access to firearms for children, violent criminals, and persons with mental illness, which is consistent with the National Rifle Association's insistence that "guns don't kill people, people kill people." 2 Children lack the competency and maturity to use firearms wisely, whereas most convicted felons have a history of violence. Singling out persons with mental illness, however, is far more complex because they represent a broad spectrum of individuals, some of whom already have been subjected to social ostracism, but the majority of whom are not violent.

The Supreme Court's recent decision that the Second Amendment confers an individual's right to bear arms renders it increasingly difficult to enact generally applicable laws regarding firearms, but the Court explicitly supports "longstanding prohibitions on the possession of firearms" by individuals with mental illness. 3 In hindsight, Jared Lee Loughner--the youth accused of shooting Giffords--is easily labeled as mentally ill, 4 but prospectively identifying such dangerous individuals is fraught with difficulties.

Full Article: http://www.charlestonlawreview.org/char ... 9ed4f8.pdf

[de officiis]

Houston v. City of New Orleans, 682 F.3d 361 (5th Cir. 2012)

PER CURIAM:

Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is GRANTED. We withdraw our prior opinion, Houston v. City of New Orleans, 675 F.3d 441 (5th Cir. 2012), and substitute the following.

In this action under, inter alia, 42 U.S.C. § 1983, Errol Houston, Jr., claims defendants violated his Fourteenth Amendment rights (to keep and bear arms, incorporated from Second Amendment, and to due process) by retaining his lawfully-seized firearm after the district attorney refused charges. The action was dismissed under Federal Rule of Civil Procedure 12. VACATED and REMANDED.

I.

Because the dismissal was under Rule 12, the facts that follow are from the allegations in Houston's operative complaint.

Houston was arrested by New Orleans police officers on 5 July 2008. Pursuant to that arrest, Houston's firearm, a Glock 22 .40-caliber pistol, was seized. Approximately a month later, the district attorney entered nolle prosequi (abandonment of prosecution) on the charges against Houston.

Almost a year after his arrest, and following his requests for the return of his firearm being denied by the district attorney's office and the police department, Houston filed this action on 2 July 2009, claiming, inter alia, violations of the right to keep and bear arms and of due process, and seeking primarily the return of his firearm. Houston alleged he had been informed that the new district attorney (defendant Cannizzaro) had implemented a policy of not returning firearms seized during arrests.

Just over a month later, Houston again was arrested by New Orleans police officers. He was informed that a warrant for his arrest, on the charge of illegal possession of a firearm, had issued at the request of the new district attorney on 5 July, three days after this action was filed. That charge was also "nolle prossed". In an amended complaint, Houston added claims for retaliation and unlawful arrest.

The district court dismissed, inter alia, Houston's Second Amendment and procedural due process claims under Rule 12(b)(6) as to the New Orleans district attorney and Rule 12(c) as to the City and the former police superintendent.

II.

A.

No authority need be cited for the long-established prudential rule that federal courts do not decide constitutional issues where there is an adequate state-law basis to resolve the dispute. In that regard, arguably state law will resolve whether public officials could retain Houston's handgun, whether as a firearm or simply as his property, following the entry of nolle prosequi by the district attorney. Only two statutes arguably confer on New Orleans officials the ability to retain lawfully seized property.

La. Rev. Stat. 40:1798 is titled "Firearms; disposal by law enforcement agencies". Subsection (D) states:

If the seized . . . firearm is not contraband, and if the law enforcement agency knows the owner of the seized or forfeited firearm, and if the owner did not commit any violation of any federal or state law or local ordinance in which the seized or forfeited firearm was involved, and if the owner may lawfully possess the seized or forfeited firearm, the law enforcement agency shall return the seized or forfeited firearm to the owner.

La. Rev. Stat. 15:41 governs "Disposition of property in connection with criminal proceedings". The general statute provides:

A. If there is a specific statute concerning the disposition of the seized property, the property shall be disposed of in accordance with the provisions thereof.

B. If there is no such specific statute, the following governs the disposition of property seized in connection with a criminal proceeding, which is not to be used as evidence or is no longer needed as evidence:

(1) The seized property shall be returned to the owner [unless the property is contraband]; otherwise, Paragraph (2) of this Section shall apply . . . .
C. Where the release of seized property is sought by a person claiming to be the owner, it shall be released only upon motion contradictorily with the clerk of court. In all other cases the court may either render an ex parte order for the disposition of the property as herein provided . . . or the court may require a motion contradictorily with the apparent owner or the person in possession of the property at the time of the seizure.

Paragraph D of § 15:41 authorizes the destruction of any "controlled dangerous substance" or paraphernalia thereof by a criminalistic laboratory after five years, and upon prior notice to the district attorney and the seizing agency.

Reasonable minds may differ on whether § 40:1798(D) automatically entitles Houston to the return of his firearm, or whether, because a prosecution occurred, § 15:41 prescribes the applicable procedures. One thing is clear: both statutes mandate the return of property, firearm or other property, to its lawful owner when it is not contraband and is no longer needed by law enforcement. Section 40:1798(D) may be self-executing in this regard. But, even if the property owner must resort to § 15:41, the upshot of its provisions is that, when the government's "use" or "need" for evidence "in connection with a criminal proceeding" is ended, its right to withhold such property from the undisputed owner also terminates. Thus, "[t]he seized property shall be returned to the owner". Cf. Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 508, 133 L. Ed. 2d 472 (1995) (explaining that the "use" of a firearm in a federal statute connotes active employment of the weapon). This is a self-executing provision. Subsection C may require the "person claiming to be the owner" to seek release from a court if the government withholds his seized property on a contested claim that the proceeding has ended or a contested claim of ownership. But, on the face of the complaint, arguably neither of those contingencies existed here. There is no authority for the government to hold the property when, by its own act, it has ceased active "use" or "need" for the "evidence".

Accepting, as we must, the truth of the well-pleaded allegations in Houston's complaint, the government's refusal to restore the firearm to Houston following the second nolle prosequi (if not earlier) arguably placed it in violation of these state-law provisions.

B.

Of course, in the light of the above discussion and our vacating the dismissal of Houston's Second Amendment and procedural due-process claims, those two claims are pending. On remand, if Houston does not secure return of his firearm under state law, those two constitutional claims must be addressed.

III.

For the foregoing reasons, the judgment is VACATED and this matter is REMANDED for further proceedings consistent with this opinion, including, but not limited to, determining whether the government has active "use" or "need" for Houston's firearm.

Opinion Text: https://casetext.com/case/hous-v-city-of-new-orleans/