Category Archives: Second Amendment

Martinsville City Council has pushed up its start time for an unusually busy agenda for its last regularly scheduled meeting of the year.

Starting at 6 p.m. today the council has set aside 45 minutes at the beginning to consider the adoption of a resolution in support of Second Amendment rights. That will be followed by a closed meeting and then a public hearing on reversion and possibly a vote on whether the city will move to revert to a town in Henry County.

Mayor Kathy Lawson said a constituent asked her to have council consider the Second Amendment sanctuary issue. Council member Danny Turner has called the measure illegal. Council members Chad Martin, Jennifer Bowles and Jim Woods have not responded to requests for comment.

Gun rights groups throughout the state have been lobbying localities to approve a resolution that declares officials will not fund any measure designed to restrict the rights granted by the Second Amendment.

As of Dec. 9, 45 counties, cities, and towns in Virginia, including Henry, Patrick, and Pittsylvania counties, have passed ordinances symbolically firing shots at the newly elected Democratic majority in the General Assembly, daring them to pass stricter gun laws. Local officials would be breaking the law themselves if they refused to enforce new state laws.

A 15-minute break is scheduled at approximately 6:45 p.m. Council will meet for a closed session at 7 p.m. and then reconvene at 7:30 for a much-anticipated public hearing on the citys consideration of reverting to a town.

In October 2018, City Council approved authorizing the Troutman Sanders law firm and auditing firms Robinson Farmer Cox and S. John Davis & Associates to complete reversion studies based on the latest information.

City Council staged two closed work sessions on June 18 and Oct. 29 to review the studies. A representative from Troutman Sanders is scheduled to speak just before the hearing and release the results of the studies publicly for the first time.

Council is scheduled to hear comments from the public following the release of the studies and followed by a Council decision as to the next step(s), according to the agenda summary.

Council could entertain a motion at the conclusion of the hearing and, if seconded, vote to revert Martinsville from city to town status, triggering a process that would take at least a year, according to the most optimistic timetable.

The presentation of the reversion studies is scheduled to require approximately 15 minutes. and comments from public are expected to begin at about 7:45 p.m.

Also during their meetings, council members will:

Bill Wyatt is a reporter for the Martinsville Bulletin. He can be reached at 276-638-8801, Ext. 236. Follow him @billdwyatt

Bill Wyatt is a reporter for the Martinsville Bulletin. He can be reached at 276-638-8801, Ext. 236. Follow him @billdwyatt

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Martinsville City Council's busy night: Second Amendment 'sanctuary' and then a public hearing on reversion - Martinsville Bulletin

Most Southwest Florida residents ordered to court under a new Florida law that allows authorities to take their guns will be standing alone without a lawyer.

About 80 percent of Collier and Lee county residents who have been named in risk protection order cases have faced the judge alone, the Naples Daily News and The News-Press found after analyzing all of the regions cases through October.

That means people defending their Second Amendment gun rights who often lack even a basic understanding of courtroom procedures are almost always going up against trained city or county lawyers.

And about 90% of them will lose their guns for a year under the so-called red flag law, the analysis found.

The Daily News and The News-Press reviewed each of the 66 risk protection order cases Collier and Lee law enforcement officers pursued through October.Of the 66 people named in the cases, 53 did not have an attorney to defend them, according to court records.

More: Collier, Lee judges strip gun rights in 9 of 10 red flag law cases. But are we safer?

Watch: Red flag law allows citizens to speak up

Florida's red flag law allows citizens to speak up if they think someone might be a threat of mass shooting.

Tim Walters, FLORIDA TODAY

In many cases, risk protection order subjects are struggling financially and likely couldnt afford a lawyer, reporters found after visiting several of their homes.

Legal experts worry that people who defend themselves against a civil risk protection order could jeopardize any related criminal cases theyre involved in.

But the analysis also found that having a lawyer doesnt necessarily improve a risk protection order subjects odds in court. Southwest Florida judges approved nineout of 10 risk protection orders, regardless of whether the person has a lawyer.

Eric Friday, an attorney with the gun-rights organization Florida CarryEric Friday

Floridas red flag law, which authorizes the risk protection order process, was one of a slew of measures Florida lawmakers approved as part of the Marjory Stoneman Douglas High School Public Safety Act in the weeks after a 19-year-old former student opened fire inside the Broward County school, killing 17 people.

The law allows law enforcement officers to petition the courts to strip guns and gun rights for up to a year from people who family members, co-workers, neighbors, teachers and others have flagged as potentially dangerous.

Because risk protection orders are civil rather than criminal cases, public defenders arent provided.

The risk protection order provision was one of the less controversial parts of the 2018 public safety act. Lawmakers spent much more time debating a provision to arm school employees and a failed Democratic proposal to ban assault weapons.

Stripping someone of a constitutional right without providing them a lawyer is a fundamental denial of one of the most basic premises of American liberty and freedom, said Eric Friday, an attorney with the gun-rights organization Florida Carry, who spoke out against the law while it was being debated in the Legislature.

"You should be entitled at a minimum to an attorney to defend you," he said.

Dustin Boshara, 34, who was the subject of a risk protection order in July 2018, said going through the process was like living in hell.

He was accused of threatening to kill an ex-girlfriend and himself, which he denies.

The saddest part it, no one ever asked me my side, he said. No one really asked me anything. I really had no say in anything, man. That was the hardest thing.

Boshara, who worked for an air conditioning company and lived in East Naples at the time, had no legal training when he was ordered to court.

On one side of the courtroom were his accusers his ex, one of her co-workers and others and a lawyer for the Collier County Sheriffs Office arguing that Boshara was dangerous and should be stripped of his gun rights under Floridas new red flag law.

On the other side stood Boshara, alone.

Interactive graphic: View graphic about Florida's new red flag law

As he prepared to face a judge, Boshara brushed up on basic courtroom terminology.

A fricking ex parte, I didnt know what that meant, he said. I had to pretty much Google and learn that stuff. I didnt know it.

According to a Sheriffs Office affidavit, Boshara threatened his ex sayinghe would shoot her then kill himself, and Im going to take us both out if you dont tell me the truth.

But Boshara claims the accusations against him were fabricated by his ex and some of her co-workers after an argument.

He never threatened to kill anyone, he said. He wasnt suicidal. In court, he said, his accusers never produced any threatening texts, only word of mouth.

He was never arrested or charged with a crime. Deputies never took him to a mental health facility under the states Baker Act law.

They just said he shouldnt have guns.

More: As Trump pitches red flag laws, here's how local and Florida lawmen tap into gun seizure law

Boshara recounted theday he walked out of his apartment and was surrounded by deputies who searched his truck for guns.

They toldhim to sit on the tailgate. He said he waited for an hour and a half for two more deputies to arrive with risk protection order paperwork signed by a judge giving them permission to take his guns and ordering him to court.

It was telling me I was crazy, I was suicidal, I could hurt people, he said of the risk protection order documents. And Im sitting there not even knowing where this is even coming from.

He felt blindsided in court two weeks later, he said.

There was a lawyer speaking for all of them on behalf of the sheriffs department. And Im sitting there by myself asking for a lawyer. Theyre telling me we dont have time for a lawyer.

The hearing lasted about an hour and a half, according to notes in the court file. A Sheriffs Office lawyer called two witnesses to testify against Boshara, who testified on his own behalf.

Collier Circuit Judge Christine Greider sided with the Sheriffs Office and approved the risk protection order, finding clear and convincing evidence that Boshara posed a significant threat to himself or others by having guns.

That was it, Boshara said. My Second Amendment rights were gone.

When asked about Bosharas case, Lt. Leslie Weidenhammer, who heads the Collier County Sheriffs Offices mental health bureau and oversees the agencys risk protection orders, said the best we could tell he was in a crisis and not making good decisions. She said deputies had talked with Bosharas mother who was concerned about his behavior.

She said Boshara had two weeks before his final risk protection order hearing to find a lawyer if he wanted one. According to the law, the risk protection order paperwork is required to inform subjects that they "may seek the advice of an attorney."

I can be empathetic, Weidenhammer said. Its tough to get a lawyer.

Watch: Florida's red flag law explained

Florida passed its red flag law in 2018 in the wake of the Parkland shooting, but many don't quite know what it is.

Tim Walters, FLORIDA TODAY

There is nothing in the risk protection order statute guaranteeing either party an attorney. But the law requires that risk protection order petitions be filed by law enforcement officers who usually are represented by agency or city lawyers.

Hiring a private lawyer is expensive for risk protection order subjects, said Friday with Florida Carry.

Most Americans couldnt come up with $2,500 that they needed for an emergency bill, he said. How are people supposed to do this?

Lee Hollander, a Naples-based criminal defense attorney, called Florida's red flag law somewhat short on due process protection.Dorothy Edwards

Lee Hollander, a Naples-based criminal defense attorney, has defended one client in a risk protection order case, but only because he was also representing the client in a related criminal case. He called the law somewhat short on due process protection.

He worries that targets of risk protection orders could jeopardize their criminal cases by defending themselves in the risk protection order hearing.

You could say something that could be used against you in the criminal case because you just dont know any better, he said.

More: Florida Governor Rick Scott signs school safety bill to arm some teachers, fund mental health

Even some risk protection order proponents acknowledge the due process concerns.

I could see how it would be one-sided, said Weidenhammer, with the Collier County Sheriffs Office. But, she added, It is fairly tough for us, too.

Gun seized by law enforcement from a person who was the subject of Floridas new red flag law.LCSO

Law enforcement has to have a rock-solid case to convince a judge that the risk protection subject shouldnt have guns, she said.

Friday said the police agencies always have an advantage, and the targets of the risk protection orders who dont have lawyers have, by definition, been alleged to be mentally unfit.

They are not mentally fit enough to exercise good judgment with a firearm, but more than fit enough to act as their own lawyer? Friday asked rhetorically.

Andy Pelosi, co-chair of the Florida Coalition to Prevent Gun Violence and a proponent of risk protection orders, said, "you could argue everyone subject to an extreme risk protection order should be afforded counsel. But thats not for my organization to decide. Thats for the Legislature to decide."

"What were trying to do is decrease the number of people that are shot, injured and killed, he added.

So far in Southwest Florida, having an attorney present during a risk protection hearing seems to have little bearing on whether the judge will ultimately approve the order.

Overall, judges approved 59 of the 66 risk protection orders that Collier and Lee law enforcement officers sought through October, or about 90%.

Of the 13 cases where the defendants had a lawyer, judges approved 12 risk protection orders, or about 92%.

By comparison, of the 53 cases where the defendants didnt have a lawyer, judges approved 47, or roughly 89%.

Having access to an attorney doesnt necessarily guarantee your success, said Miguel Fleming, a Cape Coral detective who manages his departments risk protection orders. Theres plenty of people who have been convicted of crimes that would tell you that.

Still, he said, stripping someone of a constitutional right is not something to take lightly.

Absolutely not. And I dont, he said. I take everything that I sign my name to seriously.

Boshara said it wasnt until after the risk protection order hearing that he became depressed. After breaking up with his girlfriend and moving out of his apartment, he said, he now had law enforcement coming at me telling me I was a bad person.

"And I didnt understand it," he said, "and no one could give me answers."

More: Here's who lost gun rights in Collier, Lee counties under Florida's red flag law

After being involved in a car crash with a company vehicle, Boshara lost his job with an air conditioning company, in part because of the risk protection order, he said.

They pointed to those two things as me having problems, he said. They said that wreck, I might have been trying to take my life.

As part of the risk protection order, Boshara was ordered to get a mental health evaluation.

I wasnt crazy by any means, he said, when asked what the evaluation found. But at that point, my whole life was almost gone, because they made me feel crazy.

Gun seized by law enforcement from a person who was the subject of Floridas new red flag law.Collier County Sheriffs Office

The risk protection order barred Boshara from owning or buying guns for a year. After the year was up, the Sheriffs Office gave him his guns back, no questions asked, he said.

Nobody ever checked up on him after his court appearance, he said. Weidenhammer said that deputies tried, but Boshara didnt answer their calls.

More: Mike Hill files bill to repeal gun control measures passed after the Parkland shooting

Boshara said he would better understand law enforcement's concerns if he had a history of violence, but he doesn't. He's never been charged with a violent crime in Collier County, according to court records.

"I would never hurt a fly. Im definitely a lover, not a fighter."

Original post:
8 in 10 Collier, Lee residents fighting to keep their guns under Floridas red flag law had no lawyer to defend them - Naples Daily News

"The View" co-host Meghan McCain spent the weekend enjoying some time at the shooting range and threw in a little extra callout regarding her legal right to do so. McCain posted a photo of herself Saturday while handling what appears to be an AR-15 rifle. It's unclear if the daughter of late Senator John McCain was aiming at a target or just the mountainside, but she appeared to be in a controlled environment.

McCain captioned the photo with a simple hashtag, citing "2A" with an American flag -- a clear shoutout to the Second Amendment to the United States Constitution, allowing an individual to keep and bear arms.

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The subtle caption by McCain could have something to do with an ongoing spat she continues to have with "The View" co-host Joy Behar. Behar recently made one of her signature homemade lasagnas for Whoopi Goldberg's birthday, and McCain has been pining for a plate of her own. Behar and McCain have regularly squared off against the conservative pundit's stance on firearms, and the lasagna got dragged into the mix.

After the women were apparently arguing during a commercial break, McCain explained to the audience what was going down.

" still love you and I would like my freaking lasagna, McCain said, adding, So would Sunny.

Ill give you your lasagna when you give me your guns, Behar fired back. How is that?

The audience went wild and even McCain couldn't help but crack a smile over her co-host's quick wit.

Co-host Sunny Hostin also got in on the mix, questioning why she was left out of the lasagna party when she does not own any guns.

Meghan McCain has always had a strong stance on guns, and back in September she took on all the other co-hosts on "The View" during a heated discussion after a mass shooting.

"As the chick on the panel that spent most of her break shooting, I looked forward to talking about this," McCain said as she clearly expected a confrontation.

She continued, "There are a lot of people on TV talking about guns that clearly have never shot a gun, don't know the difference between a semi-assault rifle and an assault rifle."

At the time, Bet O'Rourke was pushing a complete gun ban and buyback, and McCain scoffed about that ever actually happening.

"How do you think you are going to come to someone's house? What are you going to pay? ... The AR-15 is by far the most popular gun in America, by far. I was just in the middle of nowhere, Wyoming, if youre talking about taking peoples guns from them, theres going to be a lot of violence."

When Joy Behar replied that people had lived without assault weapons before, McCain fired back:

""Im not living without guns. Its just that simple! ... You want to feel safe? I feel safe if I can protect myself."

In August McCain took to Instagram and shared some photos from a day at the range. Afterward, she penned a lengthy explanation about her personal experience with firearms, and why she considers them so important.

grew up shooting guns in Arizona and shooting targets and clays is the only sport Ive ever really enjoyed. To do it successfully, you have to get complete control over your entire body while regulating your breathing. I have always found a very meditative and simplistic catharsis to the experience (especially doing it in nature)."

She continued, "As a woman I feel strong and empowered owning guns, knowing how to protect myself and my ability to fire different types of guns accurately. The Second Amendment is a true cornerstone of my conservative political beliefs. Without the right to keep and bear arms, the freedoms in this country we hold so dear would never have been won. Today, the gravity of gun ownership and use should be taken extremely seriously and responsibly. There are millions of Americans just like me who are responsible gun owners who know a gun can be a force for great evil or good, depending on who wields it. Thank you to Jackson Hole Shooting Experience for the wonderful day. Ben and I had a blast - he hit a target dead center at 100 yards with a suppressed 9mm, and I beat him to hitting a 600 yarder dead center with a .308."

See the original post:
Meghan McCain Touts Her 2nd Amendment Right While Handling Assault Rifle - Yahoo Entertainment

On December 2, the Supreme Court will hear arguments on a major gun rights case for the first time in almost a decade. The case was brought in 2013 by the New York Pistol and Rifle Association, an advocacy group located outside of Albany, against New York City. The association argues that a New York City restriction that prevented licensed gun owners from taking their firearms outside the city violated the Second Amendment.

After the Supreme Court agreed to take the case thisJanuary, New York City repealed the relevant restriction, hoping that the high court would drop the case. It hasnt and could still issue a ruling with broad Second Amendment implications.

The Supreme Court has been virtually silent on gun rights since it established that the Second Amendment includes the right to bear arms in the home in District of Columbia v. Heller, a watershed decision from 2008. But its inertia has frustrated pro-gun advocates who want clarification on the many questions left unanswered in Heller: Does the Second Amendment protect the right to carry guns outside the home? What kinds of firearms are covered by the right to bear arms?

Since Heller, the court has shifted further to the right, but this doesnt mean the petitioners will win. Thats partly because the gun restriction that prompted the suit is no longer law, which could render the entire case moot.

To help us understand exactly what New York State Pistol and Rifle Association v. City of New York means for the law, The Trace spoke to Joseph Blocher, a legal scholar who co-directs the Center for Firearms Law at the Duke University School of Law. Professor Blocher also assisted with briefing for the District of Columbia in the Heller case.

This interview has been lightly edited for clarity and length.

Olivia Li: What is this case about?

Joseph Blocher: The Pistol and Rifle Association is suing over a restriction in New York Citys gun license that prevented gun owners from transporting their firearms outside city limits to a second home or gun range. The association says that the restriction referred to as a transport ban violated the Second Amendment right to bear arms, as well as the constitutional right to travel. There are a lot of different ways this case could go, but it could end up being a pretty big deal.

How are the constitutional questions in this case different than Heller? And how has the composition of the court evolved?

Heller was about whether there was a constitutional right to have a gun inside your home. The Supreme Court said there was, and that the core right in the Second Amendment was to keep an arm in the home for self defense.

This case, however, involves rules and conduct outside the home. Here, the court will be considering whether there is a Second Amendment right to transport your weapon from your home to another place where you have a right to have the gun, like a shooting range. The line between the home and public space has been a battle line in Second Amendment cases since Heller.

This case is also different from Heller in the sense that the court has changed a lot since Justice [Antonin] Scalia penned the majority opinion in 2008. Justice Scalia has been replaced by Justice [Neil] Gorsuch, and Justice [Anthony] Kennedy was replaced by Justice [Brett] Kavanaugh. Many people believe that Kennedy was the swing vote in Heller, and that he only agreed to sign onto Scalias opinion if it included language that was friendly to reasonable gun regulations. And Kavanaugh and Gorsuch are stronger on gun rights than Kennedy was. The associations case will be heard by a much more conservative, pro-gun court.

Why hasnt the court taken a Second Amendment case in so long?

There werent enough votes to take up gun cases! You need four justices to grant cert [when the Supreme Court agrees to hear a case]. Its likely that Kavanaugh and Gorsuch made the difference here. Before they joined, the Court declined many opportunities to hear Second Amendment cases, including ones about public carry.

But gun rights lawyers have been begging the Supreme Court for years to hear a Second Amendment case. They argue that the Supreme Court has stood idly by while lower federal courts disrespect the right to bear arms by upholding too many gun regulations. Justice [Clarence] Thomas shares this opinion. He has chided his fellow justices for not supervising lower courts on the Second Amendment.

What do the petitioners want in this case?

The petitioners want to be able to transport their guns from within New York City limits to an out-of-city gun range or second home.

Its clear that the association thinks this case is also about the right to bear arms outside the home, not just transport them. But New York Citys regulation only addressed the transport of guns between places. Gun rights groups have tried to attack restrictions on public carry in other cases, but the Supreme Court never wanted to get involved.

What has happened in this case up to this point?

The association lost its case in a federal district court in 2015. And it lost again in 2018, when an appellate court ruled that New York Citys regulation was constitutional because it served New York Citys public safety goals. The association asked the Supreme Court to reconsider that decision in September of 2018.

Theres another interesting piece to this: The New York City Police Department repealed the transport ban in July of 2019. That same month, New York State passed a law that says all cities within the state must allow gun permit holders to transport their weapons to second homes or gun ranges.

If New York City repealed the law, why is this case still going forward?

The association is saying that New York City only repealed the transport ban because it was afraid of how the Supreme Court might rule. But normally, when a person bringing a lawsuit asks for something, and she gets it, the case is over. In legal terms, this is called mootness, because theres no longer an issue to resolve. Courts should not hear cases that are moot.

There are some exceptions to this rule. For example, you wouldnt want a defendant to stop trespassing as soon as a lawsuit is filed just to get the case dismissed, only to start trespassing again. However, in this case, theres no danger of that happening. Remember, New York State passed a law that prohibits New York City from re-instituting its transport ban.

How might the court rule? And what are some potential consequences?

There is a range of possible outcomes, but its helpful to think of them in two buckets. First, the court could dismiss the case as moot, because theres nothing the court could do to put the petitioners in a better position than theyre already in. They are free to travel with firearms outside New York City. Second, the justices could say the case should live on, and they will try to figure out whether the transport ban violates the Second Amendment.

Within this second bucket, there are a few options. The court could agree with the reasoning of the lower court and hold that New York Citys regulation does not unconstitutionally burden gun rights. This preserves the status quo.

However, the Supreme Court could instead conclude that the Second Amendment protects the transport of guns to specific locations, as well as the right to bear arms in the home. But such a decision doesnt necessarily turn the tides. The court could simply say that this particular regulation in New York City goes outside the bounds of reasonable gun laws. Because no other city has a rule like New Yorks and New York took its own law off the books this is a narrow result that changes literally nothing on the ground.

Another option: The Supreme Court could issue a much broader ruling where the justices say that theres a right to public carry. The Supreme Court has never before announced that the Second Amendment covers the right to bear arms in public, although most lower courts have held or assumed otherwise.

Finally, the Supreme Court could change the way lower courts analyze Second Amendment cases. Right now, when a gun rights advocate challenges a firearm law, the courts try to figure out if the gun law is specifically designed to serve public safety goals. In the associations case, the Supreme Court could announce a much more originalist test, one that requires courts to find a particular historical basis for modern-day gun regulations. This change could make cases more difficult for governments who want to defend firearm regulations.

We talked about how the courts composition has changed a lot since Heller. The world outside the Supreme Court has changed a great deal, too. Weve seen an increase in mass shootings and gun violence, as well as more social activism on gun reform. Will the justices be affected by this?

Thats a really fair question, and its one that comes up in every case, not just gun rights cases: How should the Supreme Court respond to public opinion, if it should at all? And I dont think I have the answer to that. What I can say is that all of the justices in Heller recognized the problem of gun violence in the United States. Justice Scalia even wrote at the end of his opinion that gun violence was a serious problem. That was 2008. Sandy Hook, Orlando, Vegas, and Parkland all postdate Heller.

Who do you think will win?

I think the New York State Pistol and Rifle Association has already won this case, because New York City repealed its transport ban. The association has gotten everything it has asked for, and thats precisely why I believe the court should dismiss this case as moot, no matter what the justices think about the Second Amendment.

When will we get a decision?

If the court dismisses the case simply because New York City already repealed the regulation, then we could get a decision very quickly. If the court actually tries to figure out whether the New York City regulation violated the Second Amendment, well likely be waiting longer. But its really hard to say.

Do you think the Supreme Court will take more Second Amendment cases in the future?

I think if the court dismisses this case on procedural grounds, theres a good chance it will take another Second Amendment case soon, maybe even by the end of this term.

Link:
SCOTUS Is Hearing Its First Big Gun Case in 9 Years. Heres How It Might Play Out. - The Trace

This piece was originally published by SCOTUSblog.

In one sense, the stakes inNew York State Rifle & Pistol Association v. City of New Yorkcouldnt be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than theyve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on text, history, and tradition and without consideration of contemporary realities of guns and gun violence. That would be a mistake.

The methodological debate animating this case began 10 years ago inDistrict of Columbia v. Heller, in which the court held that the Second Amendment protects an individual right to keep and bear arms for private purposes like self-defense, and that the right like all constitutional rights is subject to regulation. But, aside from listing some presumptively lawful measures, the court did not identify a doctrinal mechanism to evaluate those regulations (tiers of scrutiny, adequate alternatives, substantial burden, etc.), instead leaving the task to the lower courts.

In more than 1,000 cases sinceHeller, thedoctrinal dust has begun to settle, and the outlines of constitutional rules and standards have become clearer. Of course, no constitutional right is governed by a single doctrinal test; even the canard that fundamental rights get strict scrutiny repeated often by the petitioners in this case issimply false. (Free speech claims, to take one obvious example, are governed by a wide range of tests.) But courts have nonetheless converged, with striking unanimity, on a general framework for adjudicating Second Amendment cases. That framework is frequently called the two-step test.

The first step is a threshold inquiry about whether the Second Amendment comes into play at all. AsHellermakes clear, theres no scrutiny necessary for bans on possession by felons (with arguable and limited exceptions for as-applied challenges), or dangerous or unusual weapons such as machine guns, or weapons in sensitive places. For those regulations that do raise Second Amendment questions, courts proceed to the second step and apply something like a sliding scale of means-end scrutiny to evaluate the relationship between the state interest served by the regulation and the methods employed to further that interest. The more seriously a regulation interferes with the core interest of self-defense in the home, the more scrutiny it gets.

This framework is so basic as to be archetypal constitutional rights adjudication frequently involves a threshold inquiry into the rights applicability, followed by some context-specific scrutiny of burden, purpose and tailoring. In the First Amendment context, for example, courts regularly ask whether an activity campaign contributions, for example counts as speech before applying whatever doctrinal test is appropriate.

In short, assome constitutional law scholars have concluded, using the two-part framework means treating the right to keep and bear arms like the fundamental right that it is. The two-part framework, moreover, accommodates both historical analysis and consideration of contemporary costs and benefits; it includes both bright-line rules (prohibitions on laws that go too far) and standards. And the fact that it has been endorsed by every federal court of appeals is a resounding vote of confidence.

And yet the petitioners in this case contend that applying this common methodology converts the Second Amendment into a second-class right. Courts are too lenient with regard to the tailoring analysis, the argument goes, or misconstrue the historical element of the framework. They say the two-part test has been systematically misapplied.

Of course, mistakes are inevitable in any high-volume area of constitutional litigation, and some have undeniably occurred in Second Amendment cases. One court, for example, found that the amendment protectedonly those arms in existence at the nations founding not modern-day weapons like stun guns a decision overturned by a unanimous Supreme Court. In truth, such mistakes have been relatively rare. Most Second Amendment cases areweak to begin with. This is partly because ofHelleritself, which blessed as presumptively lawful various regulations that are often challenged, like felon-in-possession laws. Its also due to the fact that gun politics prevent most stringent regulations from being enacted in the first place this is not a target-rich environment for gun-rights litigators. When a court errs in upholding an unconstitutional law, however, the typical way to correct the error is through appellate decisions. In this case, by contrast, the Supreme Court is being asked to forgo the typical approach, toss out the consensus methodology and supercharge the Second Amendment with a new set of rules.

The most prominent alternative to the two-part framework is the one articulated by then-judge Brett Kavanaugh in a dissent in the U.S. Court of Appeals for the District of Columbia Circuit: That gun regulations should not be evaluated using any level of scrutiny, but rather by looking to text, history and tradition alone.

Some advocates of this new test hope and expect that it would expand the right to keep and bear arms to some imagined historical ideal, immune from regulation. But that historical image is itself ahistorical: Gun rights and regulations have coexisted for centuries. The laws have changed, because guns and gun violence have changed, but from the very beginning weve had versions of safe-storage requirements, bans on dangerous and unusual weapons, restrictions on public carrying and even outright bans on public carry including in supposed gun havens like Dodge City and Tombstone. Guns are a part of American history, but so, too, is gun regulation. For reference, there are more than 1,500 entries inDukes Repository of Historical Gun Laws, a searchable, non-comprehensive database of firearms regulations that predate the federal governments first major intervention into the field in 1934. A properly applied historical test should uphold a lot of gun regulation.

The main problem with relying solely on text, history and tradition, however, is that it doesnt provide useful guidance for modern-day regulations that respond to modern-day gun violence. The text alone cant tell you whether a machine gun is an arm or whether convicted felons are among the People the Second Amendment protects. The 27 words of the amendment are silent on many questions, and history and tradition dont speak with one voice there were and are significantregionaldifferences in approaches to gun regulation, as well as divisionsbetween urban and rural areas.

Perhaps in some extreme cases (a total ban on public carry, for example), text, history and tradition would provide relatively clear rules. But for most standard forms of modern gun regulation restrictive licensing schemes for public carry, for example, or prohibitions on high-capacity magazines or on gun possession by people convicted of domestic violence all of the work would be done by analogical reasoning. Judges would have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago.

How would such a test of judicial analogies work in practice? Is a rocket launcher like a musket, because you can lift it, or is it like a cannon, because its so powerful? How is an AR-15 like a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness? Such questions place a lot of weight on judges own, perhaps unexamined intuitions. In this way, the test of text, history and tradition simply cloaks judicial discretion in an air of objectivity.

In practice, the supposedly historical inquiry eventually comes back, in a roundabout and less transparent way, to the same kinds of questions that are front and center for means-end scrutiny. Good analogical reasoning requires finding relevant similarities, and whats most relevant about guns is their function, especially their usefulness for whatHellersays is the core lawful purpose of self-defense. If automatic weapons are prohibited, but semi-automatic handguns are permitted, does that materially interfere with peoples ability to defend themselves in their homes? If so, has the government shown that the prohibition is appropriately tailored to a sufficiently strong interest? The two-part framework makes those questions explicit, rather than laundering them through a subjective form of historical formalism.

Text, history and traditionabsolutely matterin the context of the Second Amendment, just as in other areas of constitutional law. But to make them the sole measure of constitutionality wouldnt give much useful guidance in hard cases, and would invite a lot of unarticulated, potentially hidden judicial discretion and power. Second Amendment scholarNelson Lund puts the point well: Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.

The Supreme Court is being asked in this case to reject a doctrinal framework unanimously endorsed by the federal courts of appeals and widely used in constitutional-rights jurisprudence, and to adopt instead a brand-new doctrinal test that would almost certainly invite broad judicial discretion. We hope that the court declines that invitation.

Joseph Blocher is Lanty L. Smith 67 Professor of Law at Duke Law School, where he co-directs the Center for Firearms Law. Eric Ruben is assistant professor of law at SMU Dedman School of Law and a Brennan Center fellow. Along with Darrell A.H. Miller of Duke Law School, they filedan amicus brief in support of neither sideinNew York State Rifle & Pistol Association v. City of New York.

The views expressed here are the authors own and not necessarily those of the Brennan Center.

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The Supreme Court Shouldn't Disrupt the Judicial Consensus on the Second Amendment - brennancenter.org

Collin County has joined a growing number of Texas cities taking a stand for the Second Amendment.

So far, at least 10 counties have declared themselves Second Amendment sanctuaries.

The trend came after the mass shooting in El Paso and comments by former presidential candidate Beto O'Rourke during a Democratic primary debate.

"Hell yes, we're going to take away your AR-15, we're not going to let them be used against fellow Americans anymore!" O'Rourke exclaimed.

Monday, Collin County passed a resolution that's "reaffirming our support for the Second Amendment to the United States Constitution."

It was introduced by Collin County Judge Chris Hill during Monday's commissioners meeting.

"I wanted to put together a resolution that says we will honor our oath of office. We will follow the laws and we will preserve, protect and defend the constitution of the laws," Hill said.

Members of the public weighed in.

"People kill people, not guns," said Fairview City Councilman Roland Feldman.

"I have never felt more afraid for my brown boys than I do in this county," said a tearful opponent.

Since O'Rourke's response at the Democratic debate in September, Hill said more than 100 people came forward to request the county take a stand for the Second Amendment.

"That frustrates citizens in this community who are law abiding," Hill said.

Some criticized the timing -- three months after an Allen man carried out the El Paso mass shooting and the same day as an Allen teenager was laid to rest. Marquel Ellis Jr., 16, was shot and killed at a party on Nov. 16.

"I would love to see the county be just as interested in everyone's safety as they are to try to make a political statement," said one critic at Monday's meeting.

Supporters said with gun rights under fire, defending the Second Amendment is their first priority.

"In this day and age, when so many politicians are out here trying to shred the constitution and not stand by their oath, I applaud you," one supporter said.

The resolution passed unanimously.

The resolution reads as follows:

A resolution of the Collin County Commissioners Court, reaffirming our support for the Second Amendment to the United States Constitution.

WHEREAS, we hold these truths to be self-evident, that all men and women are created equal, that they are endowed by the Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; and

WHEREAS, for the benefit and protection of all people, these unalienable rights are enumerated and enshrined in the Constitution and laws of the United States and the State of Texas; now, therefore, be it

RESOLVED, we hereby reaffirm our sacred oath to preserve, protect, and defend the Constitution and laws of the United States and the State of Texas. So help us God.

A resolution of the Collin County Commissioners Court, reaffirming our support for the Second Amendment to the United States Constitution.

WHEREAS, we hold these truths to be self-evident, that all men and women are created equal, that they are endowed by the Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;

and WHEREAS, for the benefit and protection of all people, these unalienable rights are enumerated and enshrined in the Constitution and laws of the United States and the State of Texas;

now, therefore, be it RESOLVED, we hereby reaffirm our sacred oath to preserve, protect, and defend the Constitution and laws of the United States and the State of Texas. So help us God.

More:
Collin County Passes Resolution Supporting the Second Amendment - NBC 5 Dallas-Fort Worth

BEDFORD The Bedford County Board of Supervisors announced its intention to pass a resolution declaring Bedford County a Second Amendment Sanctuary, which a growing number of counties across Virginia are doing following the Nov. 5 statewide election.

Hundreds of residents attended the board of supervisors meeting on Monday to voice concerns their gun rights will be infringed by Gov. Ralph Northam and Democratic legislators who gained a majority in the state legislature after the election. About 200 residents were packed in the boardroom Monday night and about 200 more spilled out of the meeting room and into the lobby outside.

I dont think Ive ever seen this many people come to a meeting, District 5 Supervisor Tommy Scott said during the meeting.

Scott told the crowd Monday a resolution would not be voted on during Mondays meeting but county staff is preparing a Second Amendment Sanctuary resolution.

We want you to know we stand with you in support of protecting our Second Amendment rights, Scott said. We are with you on this.

The resolution which Scott said would be voted on during the Dec. 9 board of supervisors meeting will be the latest in a growing number of counties in Virginia passing resolutions to protect the Second Amendment rights of residents. Appomattox, Pittsylvania, Carroll and Campbell counties have already passed similar resolutions and both and Amherst and Franklin counties will be voting on resolutions in December.

The resolutions that have been passed are not legally binding.

The resolution passed in Appomattox County last week states the countys intent that public funds of the County not be used to restrict Second Amendment rights and their intention to oppose unconstitutional restrictions on the right to keep and bear arms through such legal means as may be expedient, including without limitation, court action.

More than a dozen people spoke during the public comment period Monday, voicing concerns that Democratic lawmakers already have filed several gun control bills ahead of the January legislative session. Proposals include universal background checks, civil penalties for not reporting lost or stolen firearms to police, reinstating the states lapsed one-handgun-a-month law, and giving localities the ability to prohibit the carrying of firearms in a public space during an event that would require a permit.

What they are trying to do is tyrannical, Bedford County resident Steve Worth said Monday. What they are trying to do is terrible and we cannot allow it to happen.

Bedford resident Jerry Campbell said some of the measures state Democratic lawmakers are proposing are completely unconstitutional.

We need to let people know that the United States Constitution is still the supreme law in the land, he said.

Goode resident Tim Sexton agreed.

When they start taking our rights away from us they arent going to stop, Sexton said. If they get our guns you can go ahead and rip up the U.S. Constitution and Ill be damned if that is going to happen to me.

Bedford County resident Brent Armitage said he was concerned about whether law enforcement agencies would respect the countys resolution if certain laws are passed by Democratic lawmakers in the states General Assembly.

What if I am pulled over by a state trooper? he asked. What would that mean in a sanctuary county? I dont want to get pulled over one day and become a felon within minutes.

Scott said Bedford County officials are considering that question and others as they prepare the resolution.

We dont have all the answers but we are trying to stay ahead of them, Scott said. The best way everyone here tonight can help us is to get in touch with your legislators in the General Assembly.

Bedford County Sheriff-elect Mike Miller agreed.

Dont let it stop here tonight, Miller said. We have to take it to the state. We have great local support but we have to take it to the next level.

District 4 Supervisor John Sharp encouraged people to go to Lobby Day on Jan. 21 at the State Capital in Richmond to voice their opposition to gun control legislation.

Our first line of defense is to stop these laws from getting passed, Sharp said. In January we need to show them a crowd like they have never seen. They need to be afraid and they should be afraid.

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Hundreds of residents turn out to support 'Second Amendment Sanctuary' in Bedford County - Lynchburg News and Advance

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Williams: The "Second Amendment Sanctuary" movement is a sham. But more local control is a good idea. - Richmond.com

FANNIN COUNTY, Tex. (KXII) Fannin County has declared themselves a Second Amendment sanctuary county during a commissioners court meeting Tuesday, making them one of at least 15 counties across the state of Texas to do so.

County officials said it all started when a candidate for the Democratic Presidential nomination said he planned to take away certain kinds of firearms if he was elected next year. In response, counties all around the state have declared their properties, facilities and resources off limits to any government trying to seize weapons or arrest people for having them.

Fannin County Judge Randy Moore says the proclamation was approved unanimously, 5 - 0, by the court.

"It just lets our county know where we stand," said Moore. "We feel like those are God given rights, we feel like those are rights that were given to us by the Constitution of the United States, and we plan to uphold them."

Fannin County Sheriff Mark Johnson said he wants people to know that nothing is going to change in terms of the legal purchasing process.

"We're not going to participate with the federal government, or anyone that's going to come in and try and take away people's guns" said Johnson.

This means the county will not allow anyone to use their resources if they try and take away someone's firearm, such as the jail, or any help from law enforcement.

Some Fannin County residents were not enthused. Bill Roberts, who lives in Bailey, said during the court meeting he didn't see how the resolution fell within the rights of the court.

"Are we now putting the putting the sheriff and commissioners court in charge of what's constitutional and what is not?" Roberts said.

View post:
Fannin County joins other Texas counties as Second Amendment sanctuary movement - KXII-TV

The way I explain the 2nd amendment, is by analogy to a volunteer fire department.

Suppose youre concerned, not just that your community may suffer from fires, but that arsonists might get control of the local government. Your fire department might end up being sent out of the way while the fires raged, or even set to igniting them itself.

But if you rely on a volunteer fire department, even if arsonists are in control of the government, that fire department will be motivated to put fires out, not set them.

And if you guarantee the right of people to own and train with fire fighting equipment, then even if your local arsonist rules shut down the volunteer fire department, you can still organize to put out the fires they set.

The 2nd amendment, like the rest of the Bill of Rights, is not intended to facilitate the government doing the right thing out of good motives. Its intended to stop the government from doing the wrong thing out of bad motives. You simply cant understand the Bill of Rights if youre not willing to think of the government as a potential enemy of the people, intent on doing evil, not good.

Follow this link:
"Meet Me in the Middle" Podcast on the Second Amendment - Reason