Category Archives: Second Amendment

Video: Joining Chicago Tonight to discuss cases before the Supreme Court are Carolyn Shapiro, co-director of the Chicago-Kent College of Laws Institute on the Supreme Court; and David Franklin, associate professor at DePaul Universitys College of Law. (Produced by Blair Paddock)

(CNN) Looking at an upcomingSupreme Courtterm from the vantage point of the first Monday in October rarely tells the full story of what lies ahead, but the docket already includes major cases concerning the intersection between the First Amendment and social media, gun rights, racial gerrymandering and the power of the executive branch when it comes to regulation.

The court will still determine if it will hear oral arguments on issues such as medication abortion and transgender rights, not to mention the possibility of a flurry of emergency requests related to the 2024 election.

Here are some of the key cases on which the court will hear oral arguments this term:

Second Amendment: Domestic abuser gun restrictions

After the Supreme Court issued a major decision last year expanding gun rights nationwide, lower courts began reconsidering hundreds of firearms regulations across the country under thenew standardcrafted by JusticeClarence Thomasthat a gun law passes legal muster only if it is rooted in history and tradition.

On the heels of that decision, a federal appeals court invalidated a federal law that bars an individual who is subject to a domestic violence restraining order from possessing a firearm. That law, the 5th US Circuit Court of Appeals ruled, is an outlier that our ancestors would never have accepted.

The Biden administration has appealed, saying the ruling threatens grave harms for victims of domestic violence.

In 2019, nearly two-thirds of domestic homicides in the United States were committed with a gun, according to Everytown for Gun Safety.

Lawyers for Zackey Rahimi, a man who was prosecuted under the law in 2020 after a violent altercation with his girlfriend, have urged the justices to let the lower court opinion stand, arguing in part that there is no law from the founding era comparable to the statute at hand.

Racial gerrymandering: South Carolina congressional maps

Justices will consider a congressional redistricting plan drawn by South Carolinas Republican-controlled legislature in the wake of the 2020 census. Critics say it was designed with discriminatory purpose and amounts to an illegal racial gerrymander.

The case focuses the courts attention once again on the issue of race and map drawing and comes after the court ordered Alabama to redraw the states congressional map last term to account for the fact that the state is 27% black. The decision, penned by Chief Justice John Roberts, surprised liberals who feared the court was going to make it harder for minorities to challenge maps under Section 2 of the historic Voting Rights Act.

In the latest case, the South Carolina State Conference of the NAACP and a Black voter named Taiwan Scott, are challenging the states congressional District 1 that is located along the southeastern coast and is anchored in Charleston County. Although the district consistently elected Republicans from 1980 to 2016, in 2018 a Democrat was elected in a political upset, though a Republican recaptured the seat in 2020.

The person who devised the map has testified that he was instructed to make the district more Republican leaning, but that he did not consider race. He did, however, acknowledge that he examined racial data after drafting each version and that the Black voting age population of the district was likely viewed during the drafting process.

A three-judge district court panel struck down the plan in January, saying that race had been the predominant motivating factor. To achieve a target of 17% African American population,the court said, Charleston County was racially gerrymandered and over 30,000 African Americans were removed from their home district.

Power of federal agencies: Herring fishermen

In the latest attack against the so-called administrative state, the justices are considering whether to overturn decades old precedent to scale back the power of federal agencies, impacting how the government tackles issues such as climate change, immigration, labor conditions and public health.

At issue is an appeal from herring fishermen in the Atlantic who say the National Marine Fisheries Service does not have the authority to require them to pay the salaries of government monitors who ride aboard the fishing vessels.

In agreeing to hear the case, the justices signaled they will reconsider a1984 decision Chevron v. Natural Resources Defense Council that sets forward factors to determine when courts should defer to a government agencys interpretation of the law. First, they examine a statute to see if Congress intent is clear. It if is then the matter is settled. But if there is ambiguity the court defers to the agencys expertise.

Solicitor General Elizabeth Prelogar told the justices that the agency was acting within the scope of its authority under the Magnuson-Stevens Fishery Conservation and Management Act and said the fishermen are not responsible for all the costs. The regulation was put in place to combat overfishing of the fisheries off the coasts of the US.

Representing the fishermen, former Solicitor General Paul Clement argues that the government exceeded its authority and needs direct and clear congressional authorization to make such a demand. The net effect of Chevron, Clement said, is that it incentives a dynamic where Congress does far less than the Framers anticipated, and the executive branch is left to do far more by deciding controversial issues via regulatory fiat

Independent agency power: Consumer Financial Protection Bureau

For the second time in recent years, the court is taking aim at a watchdog agency created to combat unfair and deceptive practices against consumers, in a case that could deal a fatal blow to the future of the agency and send reverberations throughout the financial services industry.

At the center of the case at hand is theConsumer Financial Protection Bureau an independent agency set up in the wake of the 2008 financial meltdown that works to monitor the practices of lenders, debt collectors and credit rating agencies.

Congress chose to fund the CFPB from outside the annual appropriations process to ensure its independence. As such, the agency receives its funding each year from the earnings of the Federal Reserve System. But the conservative 5th US Circuit Court of Appeals held last year that the funding scheme violates the Appropriations Clause of the Constitution, which, the court said ensures Congress exclusive power over the federal purse.

According to the CFPB, the agency has obtained more than $18.9 billion in ordered relief, including restitution and canceled debts, for more than 195 million consumers, and more than $4.1 billion in penalties, in actions brought by the agency against financial institutions and individuals that have broken federal consumer financial protection laws.

A handful of other agencies have similar funding schemes including the Federal Reserve, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency.

Three years ago, the Supreme Court limited the independence of the CFPB by invalidating its leadership structure. A 5-4 court held that the structure violated the separation of powers because the president was restricted from removing the director, even if they had policy disagreements.

Agency regulatory authority: Securities and Exchange Commission

The justices are looking at the in-house enforcement proceedings of the US Securities and Exchange Commission in another case that invites the conservative majority to pare back the regulatory authority of federal agencies.

The courts decision could impact whether the SEC and other agencies can conduct enforcement proceedings in-house, using administrative courts staffed with agency employees, or whether such actions must be brought in federal court.

On one side are critics of such agency courts who argue that they allow federal employees to serve as prosecutors, judges and jury, issuing rulings that could particularly hurt small businesses. On the other side are those who point out that several agencies, including the Social Security Administration, have such internal proceedings because the topics are often complex and the agency has more expertise than a federal judge.

The case arose in 2013 after the SECbrought an enforcement actionagainst George Jarkesy, who had established two hedge funds with his advisory firm, Patriot28, for securities fraud.

The5th Circuit ruledthat the SECs proceedings deprive individuals of their Seventh Amendment right to a civil jury. In addition, the court said that Congress had improperly delegated legislative power to the SEC, which gave the agency unconstrained authority at times to choose the in-house administrative proceeding rather than filing suit in district court.

OxyContin: Historic Purdue Pharma bankruptcy settlement

In December, the court will examine the historic multibillion-dollar Purdue Pharma bankruptcy settlement with several states that would ultimately offer the Sackler family broad protection from OxyContin-related civil claims.

Until recently, Purdue was controlled by the Sackler family, who withdrew billions of dollars from the company before it filed for bankruptcy. The family has now agreed to contribute up to $6 billion to Purdues reorganization fund on the condition that the Sacklersreceive a releasefrom civil liability.

The Biden administration, representing the US Trustee, the executive branch agency that monitors the administration of bankruptcy cases, has called the plan exceptional and unprecedented in court papers, noting that lower courts have divided on when parties can be released from liability for actions that caused societal harm.

The plans release absolutely, unconditionally, irrevocably, fully, finally, forever and permanently releases the Sacklers from every conceivable type of opioid-related civil claim even claims based on fraud and other forms of willful misconduct that could not be discharged if the Sacklers filed for bankruptcy in their individual capacities, Prelogar argued in court papers.

First Amendment: Social media content

For the second year running, the justices will leap into the online moderation debate and decide whetherstates can essentially controlhow social media companies operate.

If upheld, laws from Florida and Texas could open the door to more state legislation requiring platforms such as Facebook, YouTube and TikTok to treat content in specific ways within certain jurisdictions and potentially expose the companies to more content moderation lawsuits.

It could also make it harder for platforms to remove what they determine is misinformation, hate speech or other offensive material.

These cases could completely reshape the digital public sphere. The question of what limits the First Amendment imposes on legislatures ability to regulate social media is immensely important for speech, and for democracy as well, said Jameel Jaffer, the executive director of Columbia Universitys Knight First Amendment Institute, in a statement.

Its difficult to think of any other recent First Amendment cases in which the stakes were so high, Jaffer added.

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From the Second Amendment to OxyContin Settlements, Here Are ... - WTTW News

The Goldwater Institute teamed up with the Cato Institute today to file a brief in an important Second Amendment case now pending before the U.S. Supreme Court. The caseone of only a handful of Second Amendment cases ever to come before the courtinvolves a federal law that prohibits anyone who has been subjected to a domestic violence restraining order from possessing a firearm. Its certainly reasonable to want to keep violent criminals from using guns, but as we argue in the brief, this law goes far beyond reasonable regulations.

In fact, it entirely disarms anyone who has been subjected to such an order from having a guneven if that person has a special need for one, or lives in an entirely different state from the person who got the restraining order. And a person against whom an order is issued has no right even to be informed that the order will entirely bar him or her from having a gun.

We dont treat other individual rights this way. As the brief notes, the threadbare procedures set forth in [the federal law] would be considered woefully inadequate to support the abrogation of other fundamental rights such as the ability to petition the government for redress of grievances by attending a city council meeting, or accessing the Internet, or traveling about the country. The right of armed self-defense is no less important and no less entitled to an appropriate measure of procedural due process.

You can read the brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.

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Goldwater Institute Urges Supreme Court to Respect Second ... - The Creative Corner

As a Floridian, I have carried a concealed firearm for years, everywhere, except where prohibited by law or a businesss policy. Hanging in my office is a 100 percent American-made Gadsden flag. I once voted solely for Republicans, including twice for President Donald Trump, and once for Gov. Ron DeSantis (in 2018). I was once a lifetime member of the National Rifle Association. I have publicly spoken at gun owners' groups. I once owned an AR-15.

And I'm here to tell you that Second Amendment mythologies and revisionist history continue to result in needless firearm-related deaths, suffering and trauma. If law-abiding gun owners do not start publicly speaking up, we cannot expect to find solutions to our nation's unacceptable levels of gun-related violence.

I understand and appreciate why gun owners the large majority of whom are law-abiding are reluctant to risk the slings and arrows of the Republican Party, the Fox/Breitbart/Alex Jones/Tucker Carlson conspiracy theorists and pundits, and, perhaps, even their friends and family.

I ask gun owners this, respectfully: Which is more uncomfortable the pain of potential ostracization, or the pain of a nonstop loop of stochastic and targeted terrorism, aided and abetted by an endless supply of handguns and rifles, the latter often equipped these days with 30 bone-shattering rounds per magazine? If you're a parent with school-age children, the fear of a Columbine, Parkland or Uvalde-type event is impossible to fully suppress.

A little over a month ago, in Jacksonville (Florida's most-populous city), we saw a ghastly mass shooting perpetrated by a delusional neo-Nazi yearning for the resurrection of the mythical Aryan super-race; in addition to taking his own life, he made his contribution to the ever-growing tabulation of gun-death statistics gun-dead, murdering Anolt Joseph "A.J." Laguerre, 19; Jerrald Gallion, 29; and Angela Michelle Carr, 52.

Such a violent death from machines with the sole purpose of killing so swiftly that their victims are rarely allowed time for the dignity of final breaths is uniquely American. A victim of any age is of course traumatic for their bereaved, grieving families, but the death of a teenager qualifies as yet another Molochian offering. Jacksonville's mayor, Donna Deegan, took office in July; it took less than two months for her administration to be christened with the blood of gunned-down innocents. Responding to a mass shooting is a rite of passage for every elected executive of virtually every jurisdiction in America. Deegan now joins the club of elected officials whose membership increases daily.

And what about our governor? As a husband and father of three, he doesn't want to be surrounded by too many guns himself, even as he peddles the inane hypothesis that more guns make us more secure, which I suspect wasn't part of the curricula of his Yale and Harvard Law educations. DeSantis signed a permitless carry law earlier this year, and would surely sign an open permitless carry law if our legislature passes it. I'm relieved he thinks that anti-Black murder (not "racially-motivated" murder, whatever that means) is "unacceptable," but I wish he could have mustered up even half the righteous indignation he exhibited toward Dr. Anthony Fauci at the recent 2024 candidates debate aired by Fox News. Oh well.

Google the name of a municipality name, and odds are the next word in the search will be "shooting"; if that word does not appear, consider that place very fortunate, and pray it remains that way.

Unfortunately, it's unlikely that your town or city will remain unaffected by this bloodshed forever.

Oh, for all the flack that Democrat-majority cities receive from the right, Jacksonville has long been the most-populousGOP-controlled city. Even with the recent election of Deegan, a Democrat, 13 of the 19 city council seats are held by Republicans; the local sheriff, supervisor of elections and state attorney, among other local elected officials, are also Republicans.

As for the purported urban/rural divide, in which big cities are wastelands of violence and rural areas are utopias? Another mythology propagated by GOP politicians and their yellow journalists.

Responsible gun owners: Are you OK with child sacrifice? I am certain you are not; but if we don't hear from you loudly and frequently our necessary voices are suffocatedby the most politically traumatized voices.

Those who carry a firearm, such as myself, should be especially vocal: We are the ones who take an unofficial oath to protect our families and innocents. Though the "good guy with a gun" is more myth than substance, it is true that defensive gun use likely happens on a daily basis, given that Americans own 400 million (or more) guns and several trillion rounds of ammunition. It was not helpful that the CDC under the Biden administration removed information on defensive gun use from its website; that unforced error undermines gun safety advocacy.

Even when I was deep down the MAGA rabbit hole, from 2015 until the summer of 2021, I was not a Second Amendment absolutist. But I was close enough. (Some of the reasons I left the manufactured reality of MAGA are catalogued here.)

To paraphrase Hemingway, my personal and political epiphany occurred gradually and then, suddenly, all at once. One of the results of my road-to-Damascus moment was an increasing discomfort with an official GOP platform that accepts widespread, preventable death and suffering. I don't actually believe most Republican voters accept that either, but the GOP apparatus does not because party officials do not comprehend the gun-created, blood-splattered abattoirs in community after community, but because they need the votes of everyone who believes that any constitutionally reasonable laws to reduce gun-related deaths and injuries are a coordinated conspiracy between Democrats, RINOs, communists, socialists, globalists (aka a global Jewish cabal), Joe Biden, Barack Obama, Nancy Pelosi and the Marxists. (I ask you: What did the Marx Brothers ever do to incur the ire of the Republican Party?)

Anyone who believes that kind of outrageous hysteria has a right to do so. I question, however, whether they should be legally permitted to own a gun. Such an individual likely also adheres to a mythology that the Second Amendment was crafted as a means to foment revolt against a tyrannical government. For all the perversion and lack of understanding of the amendment (on both left and right), historically speaking it was a compromise engineered by James Madison. Its most important goal was probably to prevent the federal government from starting a professional army. This was especially relevant to Southern states, where the population of enslaved people was disproportionately higher than in other states. Militias controlled security on the state level, especially because of anxiety over slave revolts. There was a fear among some of the founders that the Haitian revolution the first known successful slave uprising in the Americas would inspire similar events in the U.S. The Second Amendment at least partly assuaged these worries. (And in fact Black people were overwhelmingly prohibited from keeping and bearing arms.)

Nothing in the amendment legally permits insurrections against the government and just to err on the side of caution, the 14th Amendment addresses the issue of rebellion directly.

Our nation has a long and storied history of regulating firearms and other weapons, including a national registry of firearms (finally eliminated by Ronald Reagan). Post-Reagan, the Newt Gingrich political right and gun lobby discovered just how lucrative the fantasy was of taking up arms against Bill Clinton (who wanted to "make America great again"), Barack Obama whom the GOP has used to raise more money than a million Reagans could have and other gun-grabbing Democrats. I once bought into this belief, and finally came to view it as the Big Lie of the gun fetishists. The NRA, which at one time, supported reasonable gun restrictions, chose literal blood money over saving lives.

Was a nation awash in guns what the framers of the Constitution intended? I am loath to speak for them, but if those who constructed our Constitution and Bill of Rights were alive today, I doubt they'd ratify the Second Amendment. If they did, they would surely seek to modernize it.

If they chose not to strengthen our current federal gun laws, then we would know they were not the sagacious, prescient, august and erudite intellects we've been taught to believe in. And if our constitutional rights are God-given, then the Lord did some sloppy work, considering that chattel slavery and the oppression of women were overlooked. To quote the late George Carlin, that doesn't sound like divine planning to me.

It would take some time to realize the efficacy of these proposals; and, by no means is this an exhaustive list. But I guarantee they will save lives (including those by suicide, which account for more than half of all firearm-related deaths), reduce injuries and restore some of the freedom from fears that a trip to the bank, the mall, a movie theater a supermarket, an outdoor festival or our workplaces and schools will be the last trip we ever take:

The work of perfecting our Union has always been accompanied by struggle. We are now a nation held hostage by trauma entrepreneurs who wield and brandish firearms as weapons of holy war. Believe it or not, the vast majority of my fellow firearm owners will broadly agree that these reforms are necessary. I speak to them now: Like all of us, you have the right to remain silent; but now it is time to consider your duty to lead the change you wish to see.

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I carry a firearm daily. Second Amendment rights are not absolute. - Daily Kos

The John E. Sullivan Lecture series presents "To Trust the People with Arms: The Supreme Court and the Second Amendment," featuring Robert J. Cottrol, Professor of Law at the George Washington University Law School.

WHEN: Thursday, October 12, 2023 - 4:30 PM

WHERE: Ohio State House Atrium 1 Capitol Square, Columbus, OH 43215 (also remotely via Zoom)

REGISTRATION: FREE but registration required. CLICK HERE TO REGISTER (select "A friend of the Law School")

CLE: This course is approved by the Supreme Court of Ohio Commission on Continuing Legal Education for 2.00 total CLE hours.

In 2007, for the first time in nearly seventy years, the Supreme Court decided to hear a case involving the Second Amendment. The resulting decision in District of Columbia v. Heller (2008) was the first time the Court declared a firearms restriction to be unconstitutional on the basis of the Second Amendment.

It was followed two years later by a similar decision in McDonald v. City of Chicago, and in 2022, the Court further expanded its support for Second Amendment rights in New York State Rifle and Pistol Association v. Bruena decision whose far-reaching implications are still being unraveled.

Prof. Cottrol's lecture and book of the same name, To Trust the People with Arms, explores the remarkable and complex legal history of how the right to bear arms was widely accepted during the nations founding, was near extinction in the late twentieth century, and is now experiencing a rebirth in the Supreme Court in the twenty-first century.

The lecture will include additional commentary from:

Jody Madeira, Richard S. Melvin Professor of Law, Co-Director, Center for Law, Society & Culture, Indiana University Maurer School of Law.

Brannon P. Denning, Starnes Professor of Law, Cumberland School of Law.

Moderated by The Honorable Sarah D. Morrison, United States District Court for the Southern District of Ohio.

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Free Lecture - To Trust the People with Arms: The Supreme Court ... - Buckeye Firearms Association

After the U.S. Supreme Court upheld the right to bear arms last year, several states responded by making it easier to obtain carry permits but harder to use them. That strategy proved to be legally perilous: Federal judges ruled that sweeping restrictions on where people could carry handguns for self-defense in New York and New Jersey were inconsistent with the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen. A recent preliminary injunction continues that trend, barring Maryland from enforcing its restrictions on firearms near public demonstrations, its ban on carrying guns in bars and restaurants that serve alcohol, and its presumptive rule against guns in other businesses open to the public.

U.S. District Judge George L. Russell's September 29 opinion in Kipke v. Moore, which addresses two lawsuits by Maryland carry permit holders and gun rights groups, confirms that politicians were mistaken in thinking they could defyBruen by expanding the list of "sensitive places" where firearms are not allowed. At the same time, it shows that judges disagree about how to apply the constitutional test established by Bruen, which asks whether a gun control law is "consistent with this Nation's historical tradition of firearm regulation."

Russell, a Barack Obama appointee to the U.S. District Court for the District of Maryland, took a notably more permissive approach than Glenn T. Suddaby, a judge on the U.S. District Court for the Northern District of New York, and Rene Marie Bumb, a judge on the U.S. District Court for the District of New Jersey, both of whom were appointed by George W. Bush. While Suddaby and Bumb concluded that prohibiting guns in public parks and entertainment venues was probably unconstitutional, for example, Russell thinks similar rules in Maryland satisfy the Bruen test. Russell reached the same conclusion regarding museums, while Bumb was not persuaded that treating them as "sensitive places" was historically justified.

Notably, Russell's opinion runs just 40 pages. By comparison, the opinion that Suddaby issued when he enjoined several of New York's location-specific bans on gun possession last November was 187 pages long, while Bumb's May 2023 explanation of her preliminary injunction in New Jersey was even longer: 235 pages. That striking difference is at least partly due to Russell's relatively cursory consideration of the historical record.

Regarding parks, Russell notes, the plaintiffs "contend that the ban covers 'thousands of acres of land' without justification, and that there are no comparable historical regulations, despite the existence of public parks at the founding." But he considers it significant that "very few public parks existed at the time the Second Amendment was ratified, and those that did exist were typically located in cities." And while the plaintiffs cite examples of urban parks where firearms were permitted during this period, he says, "the Court cannot infer that parks were historically not regulated from so few places."

That position seems to shift the burden of proof from the government to the plaintiffs, contrary to what the Supreme Court said in Bruen. When a firearm regulation restricts conduct covered by the "plain text" of the Second Amendment, the Court said, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."

According to the Supreme Court's 2010 decision in McDonald v. Chicago, the 14th Amendment, ratified in 1868, required states as well as the federal government to respect the right to keep and bear arms. Russell therefore also considers what was happening during that period. "Around the time the Fourteenth Amendment was ratified, several jurisdictions prohibited firearms in public parks," he writes, citing laws in Boston, Chicago, New York City, Philadelphia, and St. Louis. Although those laws were limited to urban parks, he says, "rural, more isolated state parks were not established in significant numbers until after the ratification of the Fourteenth Amendment," so "the Court will not infer a lack of regulation from the absence of laws governing rural state parks at that time."

Suddaby, by contrast, was not impressed by 19th-century ordinances covering city parks, noting that they were "not accompanied by laws from states that are sufficiently similar in nature"i.e., "laws regarding 'public parks' regardless of population density." He concluded that "the burdensomeness of this regulation" was "unreasonably disproportionate to that of its historical analogues."

Bumb noted that New Jersey "failed to come forward with any laws from the 18th century that prohibited firearms in areas that today would be considered parks." She doubted that the 19th-century regulations cited by the state were "well-established" or "representative" and concluded that they "do not establish a historical tradition of banning firearms at parks," even though "the modern equivalent of parks existed during this nation's founding."

Russell concludes that Maryland's "regulations restricting firearms in stadiums, racetracks, amusement parks, and casinos are analogous to historical statutes banning them in gathering places for entertainment." He relies on the analysis in a July 2023 opinion by one of his colleagues, U.S. District Judge Theodore Chuang, in a separate case.

Regarding a "restriction on carrying firearms in recreational facilities and multipurpose exhibition facilities," Chuang wrote, "the historical statutes applicable to parks are fairly deemed to be well-established and representative historical analogues because such facilities, like parks, are locations at which large numbers of people gather to engage in recreation." Chuang, an Obama appointee, also cited a smattering of city, territorial, and state restrictions from the 19th century that prohibited firearms in locations such as public ballrooms, fairs, race courses, and places where people "assembled for amusement."

Bumb had a different take. While "this Nation has a long history of gambling establishments," she wrote, New Jersey "has presented no firearm law from states that allowed gambling that restricted firearms at gambling establishments." Instead it "offers laws it claims supports banning firearms at 'crowded social assemblies and [for] individuals with impaired judgment,'" which she deemed "insufficient" with respect to gaming facilities and other entertainment venues. Suddaby likewise thought New York had failed to show that historical tradition supported its bans on guns in theaters, conference centers, and banquet halls. He said the evidence cited by the state did not demonstrate that "the modern need for this regulation is comparable to the need for its purported historical analogues."

Russell's treatment of Maryland's ban on guns in museums is similarly lenient. "Bruen affirmed that schools are sensitive places, and museums are like schools because they serve an educational purpose and are often geared towards children," he writes. "Further, because Maryland's restrictions on firearms in museums can be justified by the protection of children as a vulnerable population, regulations banning firearms in museums are similar to those in schools."

Again, Bumb applied a stricter version of theBruen test. "The State's attempt to equate libraries and museums to sensitive places such as schools and government buildings stretches the sensitive places doctrine too far," she wrote. "The mere presence of children is not, by itself, enough to make a certain location like a school. Likewise, the State cannot stretch every government building into a sensitive place without considering the building's function and historical laws banning firearms at those locations." While Russell gives considerable weight to several 19th-century laws that prohibited guns in "locations where people gather for 'educational, literary, or scientific purposes,'" Bumb concluded that those laws were "not representative of the entire nation."

Despite these differences, Russell agrees with Bumb and Suddaby that a ban on guns in businesses with liquor licenses is not supported by historical tradition. "Bars and restaurants are not analogous to any established sensitive place," he writes. "While it is true that such businesses can attract crowds and there are risks associated with alcohol consumption, the Court is unconvinced that intoxicated people qualify as a vulnerable population, like children or hospitalized individuals. Additionally, while some crowded spaces are considered sensitive places, Bruen rejected the argument that Manhattan was sensitive 'simply because it is crowded and protected generally by the New York City Police Department.'" Turning to the historical precedents that Maryland cited, Russell concludes that laws aimed specifically at intoxicated individuals were notably narrower than a ban that covers anyone who visits a bar or restaurant, whether or not he is drinking.

Russell also agrees with Suddaby and Bumb that a default rule against guns on private property fails the Bruen test. As applied to businesses, Maryland's law allows customers to carry guns only if the owner posts a sign indicating that it's OK or otherwise gives "express permission." In support of that provision, the state cited both anti-poaching laws and postCivil War restrictions aimed specifically at African Americans, neither of which Russell deems apposite.

Finally, Russell enjoined Maryland's ban on carrying a firearm within 1,000 feet of a public demonstration. "Before the ratification of the Second Amendment," he notes, quoting Bumb's opinion, "'six out of the thirteen original colonies required their citizens to go armed when attendingpublic assemblies.'" And although Maryland cites "several nineteenth-century statutes that prohibited firearms at public assemblies," he says, Bruen "makes it clear that 'late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.'" He therefore concludes that the plaintiffs have "demonstrated a clear likelihood of success" in their challenge to the rule regarding public demonstrations.

Russell did not reach that conclusion happily. "The Court notes that it is obligated to question the constitutionality of Maryland's restriction on carrying at public demonstrations because of Bruen's narrow historical framework," he writes. "If the Court were permitted to apply intermediate or even strict scrutiny to public demonstration restriction, the law would almost certainly pass constitutional muster."

TheBruen test clearly raises questions that invite judicial disagreement. Judges must decide, for example, how much weight to give laws from different historical periods and when the analogs cited by the government are numerous, similar, and representative enough to establish a relevant historical tradition. In practice, judges' answers may depend partly on their preexisting attitudes toward gun control, although such considerations are not supposed to figure in their historical and legal analysis. But this ruling shows that the Bruen test, by foreclosing the sort of "interest-balancing" analysis that courts commonly used to uphold gun control laws prior to that decision, has real teeth even when it is applied by judges who resent its strictures.

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Federal Judge Enjoins Several Maryland Restrictions on Carrying ... - Reason

Published: 8/21/2023 4:33:57 PM

Modified: 8/21/2023 4:33:46 PM

Those who take a hard right stance on guns claim a never-ending woke effort is to take away, or at least strictly control, their guns. What they want is total elimination of all gun restrictions and controls.

The U.S. Supreme Court decisions of the past couple of years argue that we should go by the contents of the Constitution and its amendments as they were written. The Supreme Court struck down New York states system for issuing concealed weapons permits, ruling that the century-old law requiring that applicants demonstrate proper cause and good moral character violates the Second Amendment.

According to Justice Clarence Thomas: The Second and 14th Amendments protect an individuals right to carry a handgun for self-defense outside the home, and thus the New York law requiring that applicants justify their need for a concealed weapons permit was unconstitutional.

With recent Texas judge actions, that state has now removed almost all restrictions and controls over gun ownership and carrying. No license, no background checks, no training required, and anyone over the age of 18 is OK. And carry it with you wherever you go. Someone will probably argue that the Supreme Court should make this a national ruling, not limited to Texas, especially after that New York verdict.

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. Thus, the Second Amendment gives the right to own and carry guns without any government intervention. If you are going to take the Second Amendment literally (as the Supreme Court implies) there is no mention of age and thus it should apply to everyone, including kids.

Following the logic between this Texas ruling and the decision against New York, it could be argued that the Texas ruling needs to be modified to eliminate any age restriction. Let it be up to the parents to decide if their kids can have a gun or not (of course the kid may legally have it in secret from their parents). An 8-year-old kid can own guns and bring them to school.

Imagine if most of the kids in schools were carrying at least a pistol, but many also having an assault rifle while in class. The amendment is a right to keep and bear Arms, but it doesnt say what kind of arms that might be. Back then it was a musket or sword; today it is all kinds of rifles and pistols.

Part of the problem today is that this includes automatic rifles as used by the military. If these are protected under the Second Amendment, then any other weapon (Arms) should be protected as well. In other words, I should be able to own and carry around an anti-tank missile, as it is an armament. However, if you are going to impose the amendment literally, as most of these cases are implying, then the only arms allowed would be those muskets and swords.

One part of the amendment that never seems to be mentioned is A well regulated Militia and what it means. Considering the sentence in its entirety rather than only the last half, it seems that this right applies only to people who are members of a militia. So, if the Proud Boys consider themselves to be a militia, then the amendment applies to them, not to people like you and me.

Lee Armstrong lives in Leeds.

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Guest columnist Lee Armstrong: Taking 2nd Amendment to extremes - GazetteNET

The American Civil Liberties Union (ACLU) believes the restraining order gun ban is constitutional, but, more interestingly, the liberal group also thinks some gun laws arent.

On Monday, the ACLU filed a brief inUnited States v. Rahimithat asks the Supreme Court to reverse a Fifth Circuit ruling that struck down the prohibition on those subject to domestic violence restraining orders possessing guns. But they also said the power claimed by the Government in its brief was dangerously broad. And it went on to question the constitutionality of numerous gun laws both on their face and as theyre applied in practice.

The historical record is replete with relevant analogues, from 17th century England to the colonial era to Reconstruction, in which governments restricted gun possession by persons individually adjudged to pose a risk to others, the ACLU wrote in its brief. The United States brief lays out multiple examples of disarming such individuals predicated on specific findings of specific threats even as it urges the Court to adopt a far more expansive principle than necessary here. While some historical restrictions on gun rights were overbroad, lacking in due process, or rested on racist assumptions, the record nevertheless provides clear supportas then-Judge Barrett recognizedfor the narrower principle that the Government can deny access to guns to people who pose a specific threat of violence to others.

The group took a relatively expansive view of who, writ large, is covered by the Second Amendment. It cautioned the Governments view of its own power to restrict the rights of those it protected is overly vague.

The Court need go no further and adopt the United States sweeping assertion of power to deny Second Amendment rights to anyone not deemed a law-abiding, responsible citizen,' the ACLU wrote. Constitutional rights generally extend to all persons within the United States, citizen and non-citizen alike. And it would be alarming if an individuals entitlement to a constitutional right turned on the Governments vague determination of whether they were responsible. Nothing about the historical record or this case requires embarking on that path in order to reverse.

Instead, it argued for a much more limited view of the Governments power to restrict gun access.

All the Court needs to doand all that it should doto reverse the decision below is to recognize that the founding generation, like their common law forebearers and Reconstruction-era officials after them, routinely restricted access to guns by individuals adjudged to pose a specific threat of violence, the group wrote. Court-imposed, time-limited restrictions on firearms possession following an individualized finding of danger to an intimate partner or family memberas is at least the case where Section 922(g)(8) is satisfied through subsection 922(g)(8)(C)(i)fit comfortably within this historical practice.

The ACLU also rejected the recent trend of using bigoted historical gun bans as evidence of the constitutionality of modern restrictions.

Our history also includes more categorical gun regulations that were explicitly racist, the group said. For example, from the founding through Reconstruction, American laws routinely denied Black persons the right to possess firearms. Such laws would plainly violate the guarantee of equal protection as we understand it today. There is no need to rely on such laws to uphold the individualized disbarment imposed by Section 922(g)(8).

Additionally, while the group argued Rahimis restraining order leading to a gun ban was justifiable because a judge found him to be a specific threat against the mother of his child due to alleged previous acts of violence, it questioned the other type of restraining order that can lead to a gun ban. It argued barring somebody from owning a gun because they were subject to a restraining order that forbids committing violence against an intimate partner but doesnt allege theres a specific reason to believe the subject is a threat is on shakier constitutional grounds.

It is a distinct question whether the historical analogues discussed above provide sufficient support for restrictions imposed on this lesser showing of need, the ACLU wrote.

It also differentiated the restraining order ban from the other gun prohibitions found in federal law because the ban goes away once the order is lifted. The ACLU argued that because the same could not be said of other categorical prohibitions, some of them may violate the Second Amendment.

Other subsections of Section 922(g) apply in perpetuity to broad categories of persons based on status alone, and are therefore more difficult to fit under historical precedents of disarming individuals found to pose a specific threat to others, the group wrote. They impose sweeping restrictions on all persons with a prior felony conviction, on persons who use drugs, on persons deemed mental unfit, and on aliens, among others, without supplying such persons any opportunity to regain their Second Amendment rights. Those provisions require a different, and more searching, historical inquiry to determine whether they comport with the Second Amendmentan inquiry they may well fail to satisfy.

The civil liberties group also questioned the application of gun laws. It argued enforcement of some restrictions is disproportionately targeted at minorities, especially burdensome possession restrictions.

The ACLU is committed to fighting mass incarceration and overbroad gun possession laws that fuel that phenomenon. It is committed to equal protection of the law and opposes the use of gun possession laws to unfairly target people of color, the group wrote. And the ACLU is committed to due process and fundamental fairness for all, and therefore condemns procedures to restrict constitutional liberties arbitrarily, without due process, or that impose unnecessarily excessive restrictions.

Even so, the group concluded the questionable constitutionality of some firearms regulations is a question for another case because the law at issue in Rahimi is sound.

But this case does not present such policy or constitutional questions, the ACLU wrote. It asks only whether one particular gun regulation, which prohibits firearms possession by persons subject to certain domestic violence restraining orders, on its face violates the Second Amendment. It does not.

Understandably, the ACLUs brief is already eliciting skepticism from some gun-rights activists. The liberal group filed a brief in support of New Yorks effective ban on gun carry during last years New York State Rifle and Pistol Association v. Bruen under the dubious claim that striking it down would imperil New Yorkers First Amendment rights. This brief suggests the ACLU would support other challenges to gun laws, but it doesnt change the reality that they have yet to do that in a Supreme Court case.

The ACLUs brief also faces the same fundamental problem the Governments brief ran into: There werent restraining orders that authorized confiscating guns from those accused of domestic violence during the Founding Era.

It has tried to address this issue by noting a historical twin isnt necessary under the Bruen standard. It also argued that domestic violence and firearms were quite different in early American history. It claims domestic violence wasnt taken seriously until much later. And the ACLU said firearms development in the centuries since the Second Amendment was ratified has led to their increased use in domestic abuse, thus creating a uniquely modern problem the Founders couldnt have foreseen, so a broader approach to IDing the analogues required by Bruen.

Its certainly possible this line of argument will convince five justices. However, it will have to overcome the basic fact that domestic violence and guns existed at the founding, but a law banning the possession of the latter because of a restraining order triggered by the former didnt exist.

The Governments practical argument that overturning the law would result in laws from nearly every state being affected does seem likely to help get some of the conservative justices to adopt this line of thinking. However, the ACLUs suggestion of limiting the Governments ability to restrict gun ownership to only those found by a judge to be a specific threat to others could provide those same justices with the comfort to make that decision.

It would not be surprising to see a Supreme Court reluctant to toss a widely accepted temporary gun ban take the ACLUs third way to uphold it while limiting the Governments potential reach.

Continued here:
Analysis: ACLU Warns of Government Overreach in Second ... - The Reload

The National Rifle Association has promoted a false version of American gun culture; among other things is the legendary association with the Second Amendments right to bear arms with the Minutemen of the American Revolution. Carl T. Bogus finds a darker history inMadisons Militia. James Madison, the future president, authored the Second Amendment to placate Southern slaveholders such as Patrick Give Me Liberty or Give Me Death Henry, who threatened to prevent the Constitutions ratification without additional assurances that the slave states could be maintained. The primary purpose of the Amendments well regulated militia was to put down slave uprisings.

Bogus, law professor emeritus at Roger Williams University School, makes his case by examining the minutes from ratification conventions and placing events in context. Madison and members of Congress who voted for the Second Amendment believed that the militias would be useless in defending the U.S. from attack. They saw how poorly those militias performed during the American Revolution. The exact wording bears scrutiny: A well regulated militia being the best security of a free state implies that the militia, raised from white male gun owners in each state, was not intended for national defense but internalsecurityagainst insurrections. In the South, that meant revolts by the enslaved.

David Luhrssen lectured at UWM and the MIAD. He is author of The Vietnam War on Film, Encyclopedia of Classic Rock, and Hammer of the Gods: Thule Society and the Birth of Nazism.

Aug. 25, 2023

8:52 a.m.

Link:
Madison's Militia: The Hidden History of the Second Amendment, by ... - Shepherd Express

A persons right to carry a firearm in public for self-defense does not end at state lines, a Massachusetts trial judge has ruled.

Earlier this month, Lowell District Court Justice John F. Coffey dismissed a criminal case against a New Hampshire man charged with carrying a firearm without a license in Massachusetts. He found the states requirement that non-residents obtain a temporary license to carry in Massachusetts violates the Second Amendment.

An individual only loses a constitutional right if he commits an offense or is or has been engaged in certain behavior that is covered by 18 USC section 922, Judge Coffey wrote on August 3rd in Commonwealth of Massachusetts v. Dean F. Donnell. He doesnt lose that right simply by traveling into an adjoining state whose statute mandates that residents of that state obtain a license prior to exercising their constitutional right. To hold otherwise would inexplicably treat Second Amendment rights differently than other individually held rights. Therefore, the Court finds that GL. 269, sec. (10a) is unconstitutional as applied to this particularly situated defendant and allows the motion to dismiss on that ground.

The ruling could have significant implications for determining the scope of the right to carry a firearm in public. It is one of the first legal decisions to address gun-carry rights across state lines since the Supreme Court recognized a general public carry right in New York State Rifle and Pistol Association v. Bruen last June. It could fuel gun-rights advocates push for the right to travel in all 50 states with firearms in public, also known as national reciprocity.

The defendant in the case, Dean Donnell, is a legal resident of New Hampshire. New Hampshire is a permitless gun carry state, meaning anyone 18 years of age or older who can legally possess a firearm may carry it in public openly or concealed. It also issues carry permits to residents for reciprocity purposes. However, Massachusetts does not honor New Hampshire permits.

Judge Coffeys order does not specify whether or not Donnell had a valid New Hampshire permit, only that he was in compliance with his home states laws on the possession of the firearm when Massachusetts charged him. The law under which he was charged, GL. 269, sec. (10a), creates a mandatory minimum sentence of 18 months in prison for anyone convicted of possessing a firearm in public without a license.

Judge Coffey wrote that Donnells conduct was clearly covered by the Second Amendment. Therefore, under the standard of review set in Bruen, he said the Government of Massachusetts needed to show a historical tradition relating to disparate treatment of nonresidents to uphold the law.

Rather than point to any historical analogues, the Massachusetts Government argued that previous state court decisions had held that it was not required to recognize the gun-carry rights of non-residents.

Judge Coffey dismissed those arguments because the cited state court precedents relied on a time when Massachusetts issued permits on a subjective, may-issue standard struck down by the Supreme Court in Bruen.

This argument is not persuasive because at the time of the Harris decision, carrying a firearm outside of the home was a privilege, and the Harris Court held that Massachusetts didnt have to give Full Faith and Credit to New Hampshire laws conferring that same privilege, he wrote. The Commonwealth points to no historical precedent limiting the reach of ones exercise to a federal constitutional right to only within that residents states borders.

The government also argued that its law was constitutional because it allowed non-residents to obtain a special temporary permit to carry firearms when visiting the state. They cited Justice Brett Kavanaughs concurring opinion in Bruen clarifying that objective gun permitting systems were permissible as support.

Judge Coffey disagreed that the states nonresident permitting system was constitutionally sound because it sets different standards for non-resident applicants than resident applicants.

As stated above, prior to the Bruen decision, Massachusetts treated the carrying of a firearm as a privilege, he wrote. While it allowed nonresidents to apply to obtain a license for that privilege, nonresidents were not treated the same as residents. Residents of Massachusetts obtaining a license were granted the license for five years. A temporary non resident license was only valid for one year.

As a result, Coffey held that the state failed to meet its burden in proving that Donnells conduct was not constitutionally protected and warranted a felony charge.

This Court can think of no other constitutional right which a person loses simply by traveling beyond his home states border into another state continuing to exercise that right and instantaneously becomes a felon subject to mandatory minimum sentence of incarceration, Coffey added.

Massachusetts Attorney General Andrea Joy Campbell (D.) did not respond to a request for comment about the decision.

Link:
Massachusetts Judge Rules Law Against Carrying Guns Across ... - The Reload

In arecent opinion piecein The Kansas City Star, sociology professor and military veteran Doug McGaw argues that the Second Amendment is a relic of the 18th century that needs to be repealed.

Although McGaw certainly is entitled to his opinion, his argument boils down to little more than a litany of common gun control talking points, all of which are readily refuted.

McGaw argues, for example, that the Second Amendments mention of a well-regulated militia refers to the National Guard. (It does not. Moreover, the right to keep and bear arms belongs broadly to the people and shall not be infringed.)

He insists that the Framers of the Constitution never anticipated modern advancements in firearms technology. (They did. They also intentionally protected arms as a concept instead of listing specific types of arms that existed in their own time).

Throughout the piece, McGaw dismisses any notion that the right to keep and bear arms has a role in securing the rights of peaceable Americans today. He not only thumbs his nose at the premise that good guys with guns are a solution to bad guys with guns, but flippantly suggests that there is little difference between the two.

I assume that the good guys will be the ones in the white hats? McGaw asks. Otherwise, who can tell which is the good guy?

This is silly, of course. Its abundantly clear that the right to armed self-defense is just as important today as it was in 1791, when the Second Amendment was ratified.

Almost every major study has found that Americans use their firearms in self-defense between500,000 and 3 milliontimesannually, as the Centers for Disease Control and Prevention has acknowledged. In 2021, the most comprehensive study ever conducted on the issue concluded thatroughly 1.6 million defensive gun usesoccur in the United States every year.

For this reason,The Daily Signalpublishes a monthly article highlighting some of the previous months many news stories on defensive gun use that you may have missedor that might not have made it to the national spotlight in the first place. (Read other accountsherefrom past months and years. You also may follow@DailyDGUon Twitter for daily highlights of defensive gun uses.)

The examples below represent only a small portion of the news stories on defensive gun use that we found in July. You may explore more using The Heritage Foundations interactiveDefensive Gun Use Database.(The Daily Signal is Heritages multimedia news organization.)

As these examples help demonstrate, more often than not its pretty easy to distinguish the good guy with a gun from the bad guy with a gun.

They dont need different colored hats. Its simply a matter of common sensewho was using a gun to harm the innocent, and who was using a gun to defend the innocent or ensure those who harm them are brought to justice?

With all due respect to McGaw, human nature hasnt changed since 1791. And neither, therefore, has the utility of the right to keep and bear arms in self-defense.

The Second Amendment isnt an outdated relic of another century, but an ever-necessary tool in an ever-present battle against those who would undermine the natural rights of others.

This piece originally appeared in The Daily Signal

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It's Not Hard to Tell Good Guy From Bad Guy, as 12 More Defensive ... - Heritage.org