Tag: right to bear arms

The Second Amendment Protects Both Keeping and Bearing Arms

Even before its recent enactment of ill-advised and (at least partially) unconstitutional gun-control measures, New York was no stranger to draconian restrictions on the right to keep and bear arms. The Empire State, like most states, requires a license to carry a handgun outside of one’s home, but differs from many by requiring prospective licensees to show “proper cause” before obtaining a license. State officials have broad discretion in finding such proper cause, which for non-celebrities typically requires proof of extraordinary personal danger documented by threats to one’s life — effectively leaving criminals, bodyguards, and retired law enforcement officers as the only armed civilians in public places.
 
Unable to make such a showing and thus denied licenses, a diverse group of New Yorkers, represented by Alan Gura — who successfully argued District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) at the Supreme Court — filed suit in federal court challenging the constitutionality of the licensing scheme. Both the district court and the U.S. Court of Appeals for the Second Circuit upheld the law after purportedly applying “intermediate scrutiny,” which allows a challenged statute to survive only if it is “substantially related to the achievement of an important governmental interest.”
 
But the Second Circuit gave short thrift to the Second Amendment, treating New York’s restrictions as garden-variety legislation rather than measures infringing on a core constitutional right. In legal terms, the court effectively employed “rational-basis review,” which simply requires legislation to be rationally related to a legitimate government interest. Instead of requiring the state to show that its restriction on carrying firearms for basic self-defense has some concrete connection to public safety and crime prevention, the court deferred to the political branches by finding that assessing “the risks and benefits of handgun possession” and creating licensing schemes are “precisely the type of discretionary judgment[s] that officials in the legislative and executive branches of state government regularly make.”
 
The plaintiffs have now asked the Supreme Court to review that ruling and provide guidance to all lower courts regarding how to evaluate laws in tension with the Second Amendment. Today, Cato filed a brief supporting that petition. Like any constitutional right, the Second Amendment has no force absent a clear jurisprudential doctrine that ensures its enforcement. While the Second Circuit has applied a very deferential standard, other courts have expounded different doctrines since the Supreme Court ruled in Heller that the Second Amendment protects an individual right. For example, the Chicago-based Seventh Circuit demands that a restriction on Second Amendment rights satisfy a heightened level of scrutiny that requires “an extremely strong public-interest justification and a close fit between the government’s means and its end.” Given divergent lower-court rulings and the current political climate, the Second Amendment is in dire need of a clarified and robust standard of review — much like that afforded other constitutional rights, requiring federal and state governments to prove that laws infringing those rights are narrowly tailored to serve a compelling interest. Whatever the standard of review may ultimately turn out to be, Kachalsky v. Cacacse provides an excellent vehicle for the Supreme Court to pronounce it — and to show that the Second Amendment protects more than the right to keep a gun in one’s home.

Gun Control Advocates Should Applaud the Supreme Court

The Supreme Court ruled last week that state and city governments must respect the individual right to bear arms that is guaranteed by Second Amendment to the U.S. Constitution. This ruling does not necessarily invalidate all gun control laws, but it will likely mean the demise of outright bans and restrict significantly the ability of states and cities to impose other kinds of controls.

Advocates of gun control have decried the ruling because they believe guns cause crime and that gun control laws, by gun reducing gun availability, reduce crime. Regardless of the constitutional questions, however, both arguments for controls are flawed.

Many crimes do not require an armed perpetrator, and numerous weapons can substitute for guns (knives, baseball bats, fists, bombs, chains, shivs-the list is endless). Even if guns encourage or facilitate crime, guns potentially prevent crime by giving criminals reason to worry that victims might shoot back. In addition, gun controls cannot make guns disappear; they can only attempt to reduce availability via regulation, taxation, or prohibition. Those with illegitimate purposes, however, can circumvent such policies by borrowing or stealing a gun, or purchasing one on the black market.

Existing evidence indicates that the availability of guns plays a small role in causing crime and that gun control does little to reduce crime. Numerous countries have widespread gun ownership but low crime or violence rates; other countries have strict gun control laws but abundant guns and substantial violence. Police stations, army barracks, and rural households have high gun prevalence but little crime. Simply stating that guns automatically lead to high levels of crime is facile.

In addition, gun controls have costs, both for individuals and for society.

Many people derive a benefit from owning guns. Some enjoy collecting, others like hunting or target-shooting, and others want guns for self-defense. Controls raise the costs of gun ownership, thereby harming legitimate users. The costs of many of these controls are mild-a three-day waiting-period to buy a gun, for example, imposes small costs on those with legitimate reasons to own a gun. Yet such controls do little to deter illegitimate uses, so they also have minimal benefits.

The potentially significant cost of mild controls is that they evolve into strict controls. A century ago no country had substantial controls on gun ownership, yet most now have strict controls or virtual prohibition. If gun control becomes prohibition, the potential for adverse effects is large. Prohibition creates black markets, which means violent dispute resolution, corruption of judges and police, and disrespect for the law. Such outcomes are easily worse than any negatives of guns themselves.

The most significant negative of gun control is distracting attention from policies like drug prohibition that play a far larger role in generating crime. So long as policy generates a demand for crime, policy can do little to reduce crime.

Critics of the Supreme Court’s decision, therefore, have no cause for worry. If the ruling prevents many or most gun control laws, that will be good for everyone.

C/P at psychologytoday.com

Due Process Victory for Concealed Carry Permit Holder

That’s the outcome in the Second Circuit (full decision here), where a Connecticut man who has held a concealed handgun permit since 1982 was given the run-around when he tried to renew it, prompting a year-and-a-half of delay.

In March 2007, Kuck applied to DPS to renew his permit to carry a firearm. He was subsequently contacted by Defendant Albert J. Masek, an employee of DPS, who requested that Kuck provide a U.S. passport, birth certificate, or voter registration card in support of his renewal application…

Kuck objected to the requirement, arguing that he had submitted proof of citizenship when he first applied for a permit in 1982 and, over the subsequent 25 years, had never before been asked to provide such proof with a renewal application. He claimed then, as he does now, that the DPS requirement was arbitrary, designed to harass, and, in any event, not authorized by state law. Ultimately, he refused to provide the requested documents. As a result, DPS denied his renewal application.

Why the additional citizenship inquiry?

Notably, at the time of his renewal application, Kuck was the Secretary of the [Board of Firearms Permit Examiners]. Members of the Board are appointed by the Governor and include individuals nominated by gun clubs in Connecticut. In 1998, Kuck was nominated by Ye Connecticut Gun Guild, Inc. to the seat on the Board reserved for its representative.

Kuck alleges that, since his appointment, the estimated waiting-period for a hearing has increased dramatically, and that the Board Chairman, Christopher Adams, opposed his efforts to speed up the appeals process. He contends that DPS and the Board have acted to burden gun-owners’ ability to obtain carry permits by improperly denying applications in the first instance and then subjecting applicants to unjustified and prolonged appeals…

It appears that being critical of the discretionary licensing process can earn you extra scrutiny from bureaucratic overseers.

As I’ve said previously (and before that), enforcement of the right to bear arms against the states will force them to abandon discretionary “may-issue” permitting regimes. Where Due Process is owed, Due Process shall be honored.

Monday Links

  • The case for high-deductible health insurance:  “Of every dollar spent on health care in this country, just 13 cents is paid for by the person actually consuming the goods or services….As long as someone else is paying, consumers have every reason to consume as much health care as is available….This all but guarantees that health care costs and spending will continue their unsustainable path. And that is a path leading to more debt, higher taxes, fewer jobs and a reduced standard of living for all Americans.”
  • Reality: The real housing crisis was the bubble, not the bust. “Washington must stop and re-learn basic economics. First, when you’re in a hole, stop digging. In the case of housing, as a country, we built too much. The cure is to build less.”

The No-Rights List

A media drumbeat is steadily building to keep those on the government’s terrorist watch list from buying firearms. A month ago, Rep. Carolyn McCarthy (D-NY) introduced a bill to bar them from purchasing a gun even if they had no legally disqualifying criminal conviction. Now Sen. Frank Lautenberg (D-NJ) has introduced his own legislation to achieve the same goal.

This is arbitrary government at its best. The “no-fly” list used to prevent suspected terrorists from boarding aircraft has tagged Nelson Mandela, Sen. Ted Kennedy (D-MA), Rep. Loretta Sanchez (D-CA), Rep. Don Young (R-AK), Rep. John Lewis (D-GA), a retired general, a Marine reservist returning from Iraq, the President of Bolivia and dead 9/11 hijackers, a former federal prosecutor, and over twenty men named John Thompson as threats to our national security. The list now contains over 1 million names. This prompted calls for probes into the watch list, and the ACLU filed suit to challenge the list.

The push to prevent firearms purchases by persons on this list is nothing new. Here is White House Chief of Staff Rahm Emanuel saying in 2007 that, “if you’re on that no-fly list, your access to the right to bear arms is cancelled, because you’re not part of the American family; you don’t deserve that right. There is no right for you if you’re on that terrorist list.”

If the government can take an enumerated liberty away from selected citizens by placing them on a “no-rights” list without due process, the rule of law is dead.

New Podcast: ‘War on Drugs, War on Guns’

Attorney General Eric Holder said recently that in order to quell the violence spilling over from the drug war in Mexico he will push to reinstate the ban on “assault weapons” in the United States.

But, says Legal Policy Analyst David Rittgers in today’s Cato Daily Podcast, a policy like that won’t do much to quell violence.

The [drug] cartels have access to lots and lots of money because of our prohibitionist policies in the US. And because of this money they can get these weapons whether we have them legal or illegal…and they’ll have access to the black market to get fully automatic machine guns if they want them.

… If you like the war on drugs, you’re going to love the war on guns.