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Category: Gun safety

Ninth Circuit keeps Second Amendment home alone

Originally published June 11, 2016


On Thursday, the Ninth Circuit Court of Appeals in the case of Peruta v. County of San Diego upheld California’s restrictive conceal-carry regulation of firearms. In doing so, the appellate court explicitly ruled that the Second Amendment does not even apply to concealed weapons that are carried in public. Curiously, the court took no position on whether one may openly carry a gun in public – because the issue was not before the court.

The Supreme Court in its landmark 2008 District of Columbia v. Heller decision only went so far as finding an individual, constitutional right to possess a gun in one’s home for self-defense. There has been debate ever since as to whether Heller would be extended outside the home to public spaces. Heller’s author, the late Associate Justice Antonin Scalia, conceded in his majority decision that reasonable gun regulations were still possible. And in 2014, the High Court in Drake v. Jerejian rejected review of a New Jersey law that placed severe restrictions on both the open and concealed carrying of handguns in public.

Up until this week, a three judge panel of the Ninth Circuit in Peruta had been one of only two federal appellate courts since Heller that had found a Second Amendment right to use a firearm in public – which decision was vacated by the full court that reconsidered the case and came to the opposite conclusion. The Ninth Circuit is now in accord with the Second, Third, Fourth and Tenth Circuits that have ruled similarly. And the discordant Seventh Circuit case, Moore v Madigan, that had earlier struck down a conceal-carry law in Illinois was never appealed to the Supreme Court after the state changed its permitting requirements to comply with the court’s decision.

Peruta was brought by gun-rights advocates to challenge California’s conceal-carry law. For an applicant to receive a permit in California to carry a concealed handgun in public, the local sheriff has to find “good cause” based upon a prescribed set of criteria – such as personal defense where there are documented threats or business owners or employees in high-risk professions. When the San Diego sheriff disagreed that Mr. Peruta had shown sufficient justification for such a conceal-carry permit, Peruta sued to challenge the law – and either invalidate or change it to mandate that the sheriff shall have no discretion but “shall issue” the permit upon request. A three judge panel of the normally liberal Ninth Circuit agreed with Peruta and placed California’s concealed weapons law in jeopardy based upon the Second Amendment.

But not so fast.

In its en banc review, the Ninth Circuit conducted an exhaustive review of the original meaning of laws regulating the right to keep and bear arms leading up to passage of the Second Amendment. In other words, the court used “originalist” rules of constitution interpretation championed by Justice Scalia and “engage[d] in the same historical inquiry as Heller. . . .” And it found a plethora of laws dating well back to Edwardian England through colonial and 18th and 19th century America absolutely forbidding the carrying of concealed weapons in public. Thus, the court’s conclusion that the Second Amendment does not extend to conceal-carry restrictions.

As the court put it,

“Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public.”

The Ninth Circuit did not opine on whether the Second Amendment provides protection for open carrying of weapons – which could lead to an anomalous result: if one is going to pack heat in public, one might only receive constitutional protection when carrying openly. A more satisfying ruling might have noted that Heller only found an individual right to bear arms in personal defense inside, but not outside, of one’s house.

California Attorney General Kamala Harris played a key role in intervening in the Peruta case to request en banc review of the entire Ninth Circuit when the San Diego sheriff declined to do so.

Given its denial of certiorari in Drake in 2014, while Justice Scalia was still very much alive and active, the Supreme Court seemed to evince hesitancy about wading back into Second Amendment jurisprudence. Now the High Court is down one justice and split ideologically four to four. Under these circumstances, it’s hard to imagine whether the Supremes would even want to review Peruta and if so, how they would resolve it short of a tie – which, by the way, would affirm this week’s Ninth Circuit’s ruling. So as of today, the scope of the Second Amendment remains restricted to the home.


Supreme Court places Second Amendment gun rights under house arrest

Originally published May 7, 2014

71bc27e1093f2b796d654a16c6a4691eIn a little noticed, but potentially significant ruling yesterday, the U.S. Supreme Court denied review of a Second Amendment case from New Jersey that sought to establish a constitutional right to carry handguns in public. The case, Drake v. Jerejian, is important because the trial and appellate courts found that the local sheriff acted reasonably in denying plaintiff a permit to carry a gun in public on the ground that he had no “justifiable need” for such protection.

In other words, the High Court let the New Jersey law stand and decided not to constitutionalize laws that govern gun safety in public places.

Appellate courts in other circuits have come down on varying sides of the issue as to whether the Supreme Court’s gun-rights decisions of the last several years that established a personal right to bear arms were restricted to self-protection in one’s home (as Justice Scalia had framed the issue in District of Columbia v. Heller) or could spill into the streets and beyond. So far, at least, the Supreme Court is staying true to Scalia’s initial formulation that the Second Amendment is akin to a personal right of self-defense at home – meaning that gun safety laws regulating public use are not in immediate jeopardy.

Prior to the High Court’s 2008 decision in Heller, the right to bear arms was circumscribed by language in the Second Amendment limiting its exercise to a “well regulated Militia.” This limitation was based upon the Framers of the Bill of Rights’ concern stemming from the Revolutionary War that British soldiers should not be able to disarm state militias raised for the common defense. In Heller, a 5-4 majority of conservative justices, however, jettisoned the “Militia” restriction as mere surplusage and found a personal right to bear arms to defend oneself inside one’s abode – presumably from the ghosts of British soldiers or perhaps Benedict Cumberbatch (as Kahn, not Sherlock).

d5b18e5952ca1c068619443fbb2b3886In a 2010 ruling, the Supreme Court in McDonald v. Chicago extended Heller to bind the states. And since that time, several cases aimed at testing continued viability of laws regulating the public use of guns have been percolating up through the appellate courts around the country. So far, the Third and Fourth Circuits (New Jersey and Maryland) have reaffirmed Heller in restricting the Second Amendment to self-protection at home. But not the Seventh and Ninth Circuits (Illinois and California). California!

Of all appellate courts, the usually liberal Ninth Circuit Court of Appeals in February of this year concluded to the contrary: that the Second Amendment protects the right to bear arms in public and struck down a San Diego conceal and carry law where the local sheriff had denied plaintiff a permit, finding his concern for personal safety lacked “good cause.”

According to the Ninth Circuit panel in Peruta v. San Diego,

“The Second Amendment does require that the states permit some form of carry for self-defense outside the home. . . . States may not destroy the right to bear arms in public under the guise of regulating it.”

It turns out that the particular three judge panel which decided the case was tilted two-to-one in favor of conservative judges. The losing sheriff who is facing reelection decided not to request en banc review by the entire appellate court. So Kamala Harris, the California Attorney General, is presently attempting to intervene in the case to argue in favor of the constitutionality of California’s conceal and carry gun permit procedure, but her standing has not been ruled upon.

It will be interesting to see if the High Court’s denial of certiorari in Drake has an ameliorating influence on the Ninth Circuit’s decision in Peruta, either to grant en banc review and/or reverse the original panel.

Is the Roberts Court through expanding the Second Amendment – or just temporarily resting?

Even in Heller, Scalia plainly recognized that the Second Amendment does not invalidate all gun safety legislation. His ruling was limited to overruling one particular District of Columbia law that imposed an “absolute prohibition of handguns held and used for self-defense in the home.”

Writing for the Court’s majority, Scalia concluded:

“We are aware of the problem of handgun violence in this country. . . . The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. . . . .”

Indeed, Heller recognized another important limitation on the right to keep and carry arms based upon precedent — namely that the the Second Amendment only protects the sorts of weapons “in common use at the time.” Accordingly, says Scalia, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right.” This further limitation shows that the Second Amendment, like the entire Bill of Rights, is subject to nuance and reasonable restrictions, which may come into play if and when Congress ever gets around to reauthorizing, and the Supreme Court were called upon to determine the constitutionality of, the Assault Weapons Ban.

The gun lobby is reported to have selected, funded and promoted Drake as a means to test the limits of Supreme Court jurisprudence on the continued legitimacy of gun control legislation. So far, their investment has not paid dividends.

Dianne Feinstein shows that Ted Cruz is no constitutional scholar

Originally published March 15, 2013

he newly minted tea party senator from Texas, Ted Cruz, thinks he’s a smarty pants, who knows constitution better than everyone else. He seems unaware that he is spouting a radical interpretation of the Second Amendment that even Justice Antonin Scalia would find fantastical. And on Thursday, Senator Diane Feinstein, who has served on the Judiciary Committee for more than two decades, bested him both emotionally and intellectually. She is not California’s most popular politician for nothing.

Democratic Lawmakers Introduce Assault Weapons Ban of 2013 LegislationFeinstein was testifying before her own committee in support of the new Assault Weapons Ban that she authored.

In the most condescending and obnoxious tone one can imagine, Cruz asked Feinstein a series of hypothetical questions about the Bill of Rights – the aim of which was to demonstrate the absolutism of the Second Amendment.

Cruz asked of Feinstein:

  • “[W]ould she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights?” and
  • “Likewise, would she think that the Fourth Amendment’s protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?”

These are what lawyers would call incomplete hypotheticals. If one book, for instance, were Dick Cheney’s autobiography, and the other featured images of underage children engaged in sexual activity, then, well, yes, the constitution could, and would, draw distinctions. If one is crossing the boarder, one’s expectation of privacy is different than if one is sitting quietly in one’s home.

In posing his ridiculous hypotheticals — as though a gun has the same status under the Bill of Rights as a person or a great work of literature — Cruz seemed wholly unaware that even the First and Fourth Amendments are not absolute. Indeed, some speech – namely, fighting words, threats of imminent violence, obscenity and, notably, kiddy porn – garner no constitutional protection at all and may be banned outright. Commercial speech only gets intermediate constitutional scrutiny. And even political speech – normally the most sacrosanct in the First Amendment pantheon deserving of the highest protection – is subject to reasonable time, place and manner restrictions that are content neutral.

Or as Justice Oliver Wendell Holmes, Jr. put it, “free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

The text of the Fourth Amendment has its own self-contained exceptions: reasonable searches and seizures based upon a probable cause warrant – expanded by the High Court to include warrantless searches made in “hot pursuit,” “stop-and-frisk” and other exigent circumstances.

If the rest of the Bill of Rights is subject to reasonable limitations, how can Cruz possibly think that the Second Amendment stands alone as inviolable?

The answer is that he’s not thinking – and not reading, say, what Justice Scalia has said on the subject. Scalia wrote the majority opinion in District of Columbia v. Heller, which focused only on the second half of the Second Amendment to find an individual right to keep and bear arms for home protection.

Now leave aside the inconvenient fact that Scalia, and Cruz, ignore the prefatory clause in the amendment that conditions gun rights on what is “necessary” to maintain “[a] well regulated Militia.”

The significance of Scalia’s holding in Heller is that the most conservative intellect on the High Court plainly recognizes that the Second Amendment does not invalidate all gun safety legislation. His ruling was limited to overruling one particular law of the District of Columbia that imposed an “absolute prohibition of handguns held and used for self-defense in the home.”

Writing for the Court’s majority, Scalia concluded:

“We are aware of the problem of handgun violence in this country. . . . The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. . . . .”

Indeed, as an “originalist” who interprets the Constitution in light of the intent of the Framers, Scalia noted that the Second Amendment only extends to the type of guns “in common use” around in the revolutionary period – which would include muskets but not likely high capacity automatic weapons. Scalia wrote explicitly that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

Moreover, the Supreme Court never invalidated any part of the original 1984 Assault Weapons Ban, and there is nothing in the Heller decision that would dictate a renewed ban would be constitutionally suspect.

Salazar, Bronwich Testify At Hearing On Re-Organization Of MMSBut Senator Feinstein gave a more visceral response to Cruz’s sophomoric questioning, telling him, “I’m not a sixth grader,” and pushing back with reference to her first-hand experience in the slayings of San Francisco Mayor George Moscone and Harvey Milk,

“Senator, I’ve been on this committee for 20 years. I was a mayor for nine years. I walked in, I saw people shot. I’ve looked at bodies that have been shot with these weapons. I’ve seen the bullets that implode. In Sandy Hook, youngsters were dismembered. Look, there are other weapons. . . .

I’m not a lawyer, but after 20 years I’ve been up close and personal to the Constitution. I have great respect for it. This doesn’t mean that weapons of war and the Heller decision clearly points out three exceptions, two of which are pertinent here. . . . [I]t’s fine you want to lecture me on the Constitution. I appreciate it. Just know I’ve been here for a long time. I’ve passed on a number of bills. I’ve studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture.”

As Senator Feinstein concluded by noting that her proposed legislation specifically exempts 2,271 weapons by make and model. “Is this not enough for the people in the United States?” she asked. “Do they need a bazooka?”

Neither the Second Amendment nor common sense dictates that they do, and the freshmen senator from Texas should know it.

Yes, Wayne, guns do kill people; video games don’t

Originally published March 1, 2013


The guns used in the Sandy Hook mass shooting

In the aftermath of the mass shootings in Phoenix, Aurora and Newtown, is popular culture to blame for gun violence? At Wednesday’s Senate Judiciary Committee Hearing on a proposed Assault Weapons Ban, ranking member Chuck Grassley repeated the Republican talking-point that “[v]iolent video games that encourage the killing of innocent people for sport are of deep concern.”

Senate Judiciary Committee Hears From Prominent Voices On Both Sides Of Gun Control DebateHe was echoing the comments of Wayne LaPierre, the chief spokesperson for the National Rifle Association. In his first post-Sandy Hook press conference, LaPierre branded the media and their corporate owners as “silent enablers, if not complicit co-conspirators” and accused them of concealing a “dirty little truth” about their incitement to gun violence.

“There exists in this country a callous, corrupt and corrupting shadow industry that sells, and sows, violence against its own people. [It does so t]hrough vicious, violent video games. . , blood-soaked slasher films. . . and a thousand music videos that portray life as a joke and murder as a way of life. And then they have the nerve to call it ‘entertainment.’ ”

But the NRA is the lobbyist for the nation’s gun manufacturers, so Mr. LaPierre has a vested interest in deflecting blame away from the more obvious culprit for gun violence: the widespread availability and increasingly lethality of guns.

It’s the guns

Our country has almost as many guns as we do citizens. It is estimated that there are over 270 million guns in the United States. That equates to 88.8 guns for every 100 people, placing America number one in the world for the rate of gun ownership. And increasingly, these are automatic guns, with multiple rounds, that may be purchased without a waiting period.

It is hard to ignore evidence of the direct link between easy public access to powerful weaponry and gun violence. As Piers Morgan pointed out, the comparison of the number of gun deaths in Great Britain, which has adopted strict gun control laws, and the United States, which has let them lapse, is very stark. In 2010, the U.S. had 31,672 gun-related deaths while the U.K. (which has only 5 guns for every 100 people) had only 155.

Media are not the prime culprits

If there were a direct cause and effect between virtual violence in popular culture and acting out those depictions in real world violence, then county-by-country statistics would show a correlation between media violence and actual crime. But they don’t. Compare the United States to Japan, the latter of which, if anything, has a more violent popular culture than America. Think Godzilla motion pictures and violent ninja video games. Yet the Japanese can distinguish between the real and imaginary worlds and had only 11 firearm-related homicides for the last year they were reported in 2008.
Japan has only 0.6 guns per 100 people, so the comparison with the U.S. isn’t fair. As an experiment, we would have to proliferate an additional 110 million guns to Japanese citizens and then wait and see if their rate of gun violence increased. Anyone want to take odds on how that experiment might turn out?

If you listen to Mr. LaPierre, “The only thing that stops a bad guy with a gun is a good guy with a gun,” thus the need to arm school teachers, mall guards and, well, everyone. But here’s a thought: if there were fewer “bad guys” with access to guns, there wouldn’t need to be as many “good guys” with guns to stop them. And wasn’t Christopher Dorner a “good guy with a gun” before he became a “bad guy with a gun”?

The social science clearly shows that one’s ownership of a gun highly increases the chance that one, or someone in one’s household, will become the victim of gun violence, especially since we had over 19,000 gun-related suicides in this country the year before last.

The same day as the Sandy Hook massacre, another school attack was widely reported, but this one was in Central China. A local villager stabbed 22 grade school children, who were all treated and released at a local hospital. Because the villager’s weapon of choice was a knife, and not a gun, there were no deaths in the incident in China that day. In Connecticut, where Adam Lanza’s weapons of choice were one semi-automatic rifle with high capacity 30 round clips and two handguns, there were 20 deaths.

You can blame popular culture for Adam Lanza’s alienation and violent propensities. You can blame his school for lack of security. But without Mrs. Lanza’s legal purchase of a rifle and handguns to which her son helped himself, there would not have been a massacre that day in America.

Obama’s Tucson speech was his Gettysburg Address

Originally published January 17, 2011

At the mid-way point in the Civil War, Abraham Lincoln gave his great address to dedicate the Soldiers’ National Cemetery on the site where so many had died during the decisive battle at Gettysburg. In making his memorial speech in Tucson to honor those who were injured or killed last week, President Obama used many of the words and themes of the Gettysburg Address, along with those of Lincoln’s other speech carved into the walls of his Memorial, his Second Inaugural Address.


In the Gettysburg Address, Lincoln began, “The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.” Similarly Obama began, “There is nothing I can say that will fill the sudden hole torn in your hearts. But know this: The hopes of a nation are here tonight.”

Obama directly borrowed some of Lincoln’s language in his memorial speech. Obama talked about our “sharply polarized” discourse and admonished us to “pause for a moment and make sure that we’re talking with each other in a way that heals, not in a way that wounds.” Obama instructed us to “sharpen our instincts for empathy and remind ourselves of all the ways that our hope and dreams are bound together.” In his Second Inaugural, Lincoln’s instructed the nation as follows:

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds. . . [and] do all which may achieve and cherish a just and lasting peace among ourselves. . . .

Lincoln observed that the two parties engaging in the Civil War, both North and South, “read the same Bible and pray to the same God.” Obama similarly observed that those who were harmed or killed “are part of our family, the American family 300 million strong. We may not have known them personally, but surely see ourselves in them.”

The subject of Lincoln’s addresses, of course, was the Civil War: “Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away.” Whereas for Obama, it is the scourge of incivility that has blanketed our airwaves:

. . . [I]f, as has been discussed in recent days, their death helps usher in more civility in our public discourse, let us remember it not because a simple lack of civility caused this tragedy – it did not – but rather because only a more civil and honest public discourse can help us face up to the challenges of our nation in a way that would them proud.

The emotional arc of Lincoln’s Gettysburg Address was to dedicate the war memorial in honor of goal for which the soldiers had died there: “It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain. . . .” Obama’s emotion arc in his speech was similarly dedicated to those who perished. “If this tragedy prompts reflection and debate – as it should – let’s make sure it’s worthy of those we have lost. Let’s make sure it’s not on the usual plane of politics and point-scoring and pettiness that drifts away in the next news cycle.”

Obama then made the plea for civility extremely personal:

Imagine — imagine for a moment, here was a young girl who was just becoming aware of our democracy; just beginning to understand the obligations of citizenship; just starting to glimpse the fact that some day she, too, might play a part in shaping her nation’s future. She had been elected to her student council. She saw public service as something exciting and hopeful. She was off to meet her congresswoman, someone she was sure was good and important and might be a role model. She saw all this through the eyes of a child, undimmed by the cynicism or vitriol that we adults all too often just take for granted.

I want to live up to her expectations. I want our democracy to be as good as Christina imagined it. I want America to be as good as she imagined it. All of us — we should do everything we can to make sure this country lives up to our children’s expectations.

President Obama observed that Congresswoman Giffords, her staff and many of her constituents were gathered outside a supermarket to exercise their right to peaceful assembly and free speech, thus fulfillng a central tenent of representative democracy. He further characterized the gathering — which Ms. Giffords called “Congress on Your Corner” — as “just an updated version of government of and by and for the people.” In so doing, he made explicit the connection to the Lincoln’s final dedication in the Gettysburg Address: “that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

It was only in retrospect at the end of war that the Battle of Gettysburg and Lincoln’s Address there were seen as a turning point in the Civil War. So, too, can we hope for President Obama’s speech at Tucson with respect to the poisonous partisan discourse through which we have been living of late.