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Reality Bites

July 1, 2010 by

Sayre Weaver is one of the leading legal lights of the gun control movement in California. She is one of the lead attorneys for the County of Alameda in the Nordyke case and she helped the City of West Hollywood develop their law prohibiting the sale of “junk guns”(sic). She has won awards from Women Against Gun Violence and the California Wellness Foundation for her work on gun control. The LA Times writes glowing articles about her that characterize her “as the California gun lobby’s Public Enemy No. 1.” So, when she says the McDonald decision is likely to spawn lawsuits challenging local gun control laws, I listen.

Weaver released her analysis on the impact of McDonald v. Chicago on Monday. Her analysis centers on the likely immediate impact that McDonald will have for local governments in California.

  • Local ordinances regulating firearm possession and sale are now more open to challenge on Second Amendment grounds

It appears likely that McDonald will generate challenges to a wide range of local firearms regulations, as well as ammunition regulations…..Because the Court has given little guidance on what standard a firearms regulation must meet to survive challenge under the Second Amendment, we anticipate that the decision will embolden individual litigants to challenge a wide range of firearms laws, including long standing laws that have previously survived challenge in the courts.

  • Local firearms ordinances must now meet a more rigorous constitutional standard to survive legal challenge

Because any restriction on firearms possession or sale might be argued to create some burden on the right to possess a firearm for self-defense in the home, local governments should anticipate numerous lawsuits challenging a wide range of firearms laws. There are already a number of such challenges in the California courts, which were stayed while those courts waited for McDonald.

  • Local ordinances regulating possession of handguns or prohibiting certain types of handguns are more vulnerable to challenge under the Second Amendment

Because the Second Amendment right articulated by the Court pertains to possession of handguns, which the Court characterizes as the most popular weapon among Americans for self-defense, it is likely that local regulations of handguns will be challenged under the Second Amendment.

  • Successful Second Amendment challenges to local laws may result in the award of attorney fees against a city and to the challenging party

While she doesn’t come out and say it, if a city loses a challenge to a firearm restriction in court, they will end up paying the costs for both the defense and the plaintiffs. In case-strapped California, this should make some municipalities think twice.

  • Local governments considering adopting new firearms ordinances may wish to consult with their City Attorneys

…ordinances will now be subject to a stricter test in the courts, and the legislative findings that may be needed for a given law to pass muster under the Second Amendment will be of particular importance.

The bottom line for Weaver is that the world as she knew it has changed with McDonald.

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Hypocrisy from the Dissenters

July 1, 2010 by

Jacob Sullum writes a very perceptive piece on the McDonald dissents of Justices Stevens, Breyer, Ginsburg, and Sotomayor. He notes that these Justices worry that overturning the Chicago gun ban would “undermine democracy.” However, these same Justices would never let local prejudices stand in the way of other rights guaranteed in the Bill of Rights.

Ah, but the Second Amendment is different, they say:

Second Amendment rights are different, Breyer says, because “determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions.” So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence, or allowing warrantless pat-downs, dog sniffs, or infrared surveillance.

When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is “narrowly tailored to serve a compelling state interest” and is the “least restrictive means” of doing so.

Sullum saves his strongest scorn for their claims that it will invite more litigation:

The dissenters’ most frivolous objection is that making states obey the Second Amendment “invites an avalanche of litigation,” as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth, or Eighth amendment. Neither Stevens nor Breyer wants to stop this “avalanche.” Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights.

Read the whole article.

H/T Instapundit

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Chicago’s Texas Ranger Approach to Handguns

June 30, 2010 by 1 Comment

The powers that be in Chicago must have read that apocryphal story about the Texas Rangers and “One Riot, One Ranger”

Otherwise, why are they proposing a one handgun limit in response to losing the McDonald case?

It wouldn’t surprise me if Chicago tried to mandate what type of handgun you can own and in what caliber. It would probably be a Thompson-Center Contender in .22 Long Rifle given how they think and I use the word think loosely.

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Kagan Confirmation Hearing Reactions, Part 2

June 30, 2010 by

The snark continues in reactions to Elena Kagan’s confirmation hearings. Stephen Stromberg, writing in the Washington Post’s PostPartisan blog, suggests that one could get better answers from an octopus named Paul that predicted Germany’s World Cup win over England than from Kagan herself.

On her judicial philosophy:

Would Kagan be a “progressive” justice? The nominee objects to the terminology. Paul can express no such qualms. After coming to terms with the metaphysical crisis that no doubt attends when your only means of communication consists of consuming morsels of seafood from one of two labeled containers, Paul would have no doubt selected the one that read “yes.”

On gun rights:

What is Kagan’s approach to gun control? The nominee wouldn’t touch the Heller ruling. Paul would have inked his way toward the “right to bear arms is a collective right, but if the court determines that it is an individual right it ought to be incorporated” container.

On learning anything out of the hearing:

Of course, the White House would never allow an octopus to serve as a surrogate for Kagan. Because if senators asked Paul whether the proceedings were a vapid farce, all eight tentacles would surely embrace the “yes” container.

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Kay Hagan’s Trent Lott Moment

June 30, 2010 by 1 Comment

Senator Kay Hagan (D-NC), who is a U. S. Senator only by the grace of Obama’s landslide and the incredibly inept re-election campaign of Liddy Dole, has now had what the blog Red State is calling her Trent Lott Moment.

In a wonderfuly satirical piece, Ben Howe compares Hagan’s praise of the late Senator (and Klansman) Robert Byrd to the birthday comments made by Senator Trent Lott in honor of Strom Thurmond.

Make sure to read the whole thing!

On a side note, as a North Carolinian, I have found Hagan to be a not ready for prime time player. Until recently, she was a total failure at constituent communication. If I wrote her a letter, I had to wait six months or more for a response. And even then, it was a response to maybe one in ten letters.

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Move Over Dale Peterson!

June 29, 2010 by

Dale Peterson made quite a splash earlier this year with some of his ads for Alabama Commissioner of Agriculture featuring Dale riding off into the sunset atop his horse and carrying his Winchester 94.

Well, I think it is time for Dale to move over for Pamela Gorman of Arizona. She not only safely handles a firearm (unlike Dale) but does it in full auto.

BTW she is running in the Republican primary to replace Congressman John Shadegg who is retiring.

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Reactions to the Kagan Confirmation Hearings

June 29, 2010 by

From the Washington Post

The Judiciary Committee grills Elena Kagan

The best – and most innovative – suggestion was made Patricia Wald, the former Chief Judge of the Court of Appeals for the District of Columbia.

Kagan will undoubtedly be a smart justice, though I am no clearer now than before as to what kind. How about, as an alternative to hearings, embedding a Rolling Stones reporter traveling with the candidate and her entourage for a few weeks before confirmation?

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The Next Case: Bateman et al v. Perdue et al

June 29, 2010 by 2 Comments

Alan Gura’s next case has a name. The official title is Bateman et al v. Perdue et al, Case No. 5:10-cv-265, and it was filed yesterday with the United States District Court for the Eastern District of North Carolina, Western Division.

The named plaintiffs are Michael Bateman, Virgil Green, and Forrest Minges, Jr as well as Grass Roots North Carolina and the Second Amendment Foundations. They are seeking to overturn the North Carolina General Statue that forbids the carrying, possession, sale or purchase of firearms and ammunition during declared states of emergency.

Specifically, they are asking the U. S. District Court for:

An order permanently enjoining defendants, their officers, agents, servants,
employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing N.C. Gen. Stat. §§ 14-288.7, 14-288.12(b)(4), 14-288.13(b), 14-288.14(a), and 14-288.15(d), forbidding the carrying, possession, sale or purchase of firearms and ammunition during declared states of emergency.

In February 2010, the City of King and Stokes County declared a state of emergency due to heavy snowfall and local power outages. The proclamation from the City of King forbade the sale or purchase of firearms and ammunition, as well as the possession of firearms and ammunition off an individual’s premises. If you had a North Carolina Concealed Handgun Permit, it didn’t matter as the state of emergency proclamation superceded it.

I have posted the entire complaint and other filings on Scribd. You can read the main filing here.

Bateman v Perdue 1-Main

UPDATE: Paul Valone, President of Grass Roots North Carolina and the Charlotte Gun Rights Examiner, has more on the background of the case in his column.

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Alan Gura’s Next Target – North Carolina’s Emergency Powers Gun Bans

June 29, 2010 by 2 Comments

I just found this on the Second Amendment Foundation’s website.

SAF SUES TO OVERTURN NORTH CAROLINA’S ‘EMERGENCY POWERS’ GUN BANS

The Second Amendment Foundation along with Grass Roots North Carolina and three individuals are suing to overturn the law in North Carolina that allowed the Town of King to impose a ban on possession and sales of firearms due to … lots of snow.

Having read the law and seen when it was adopted, I’ve always felt it was a racist reaction to the civil unrest on college campuses during the late 1960s. The General Assembly was especially interested in tamping down any civil unrest at the historically black colleges and universities. This was very true in my hometown of Greensboro where the authorities kept a much closer eye on historically black NC A&T State University than on Women’s College (now UNC-Greensboro).

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A McDonald Decision Round-up

June 29, 2010 by

Two years and two days ago, the Supreme Court found that Dick Heller had the right to own a handgun to protect his family in his home in the Federal enclave of the District of Columbia. The Court held that the Second Amendment was an individual – not collective – right. Today, the Supreme Court held that Otis McDonald had that same individual right and that the Second Amendment was incorporated through the Fourteenth Amendment to the states. A plurality thought the Second Amendment was incorporated through the Due Process Clause while Justice Thomas thought the Privileges or Immunities Clause incorporated this right.

The Decision

The full opinion of the Court, the concurring opinions, and the dissents cover 214 pages. You can order a paper copy for FREE directly from the Supreme Court. It is called a slip decision. Just call 202-479-3211 ext. 1 and ask for the slip opinion in Case 08-1521. This makes a nice memento!

Reaction of the participants

And now Hizzoner Mayor Daley.

Reaction from the Second Amendment Foundation. 

And the Illinois State Rifle Association.

Both the Second Amendment Foundation and the Illinois State Rifle Association were instrumental in bringing this case.

The NRA, which was given time to argue as a respondent on behalf of the plaintiff but were not a part of the McDonald case, issued this statement.

From the Gun Bloggers

Sebastian of Snowflakes in Hell Blog has spent most of the day reading and analyzing the decision.

Live Blog – The Decision

Scalia’s Concurrence

Reactions

Thomas’ Privileges or Immunities Opinion

Says Uncle has some interesting posts in his quick and to the point manner.

VPC on McDonald.  And if you have the Violence Policy Center, then you have to have Brady.

Breda of The Breda Fallacy has this reminder, Congratulations, Chicago

And in a short post Michael Bane has this to say, SCOTUS Rules! Second is Fully Incorporated….

The great Dave Hardy in his Of Arms and the Law Blog notes the number of citations of many of the Second Amendment scholars in the decision.

The Law Bloggers were not to be outdone

The Instapundit, Glenn Reynolds, a law professor at the University of Tennessee, has a number of posts.

Very interesting to see both the majority and Justice Thomas reference the racist roots of gun control so strongly. Also, while Alan Gura didn’t win on the privileges and immunities argument, he did better than he might have. And by arguing that way, he made due-process incorporation of the Second Amendment, which looked radical not too long ago, look moderate by comparison!

He offers his first impressions here. And he links to this interesting post on the power of paradox.

Reynolds and other bloggers are featured in a discussion on the case in the New York Times.  And as a sidebar here, I’d love to have the gun collection pictured in the New York Times story!

The lovely Professor Ann Althouse weighs in here.

The Volokh Conspiracy has a number of important posts from their collection of law professors on the case.

Predicting the Impact of McDonald

What Now for Limits on Gun Possession by 18-to-20-Year-Olds?

McDonald v. City of Chicago and the Standard of Review for Gun Control Laws

Why Not the Privileges Or Immunities Clause?

And finally, the SCOTUS Blog has a number of posts on the case.

McDonald: big victory for liberty

McDonald impact: slew of new legal challenges

Still fighting the last war on the blog is Professor Jack Rakove of Stanford, A challenge of Heller’s historical interpretations

Thomas’ concurrence on the Privileges or Immunities Clause

Privileges or Immunities Clause alive again

Analysis: Gun rights go national McDonald, et al., v. City of Chicago, Opinion recap

And that sums it up for the evening. While there are a ton more posts opining on the case, I’m whupped!

Wait – just one more! The Law Blog in the Wall Street Journal calls Clarence Thomas’s concurrence potentially his finest hour.