Tag: second amendment

The Washington Post Quietly Corrects Justice John Paul Stevens’s Grievous Error about Gun Laws

Last week, former Justice John Paul Stevens penned an op-ed for the Washington Post on “The Five Words that Can Fix the Second Amendment.” The piece is actually an excerpt from his new book Six Amendments: How and Why We Should Change the ConstitutionIn the book, Stevens suggests some changes that would ratify his view of cases in which he stridently dissented, such as Citizens United and Heller

Stevens’s dissent in Heller, the case in which a 5-4 Court held that the Second Amendment conveys an individual right to own guns even for those not part of a militia, is largely re-hashed in his Washington Post op-ed. In addition, there is, or was, a glaring error that the Post has since corrected sub rosa, that is, without acknowledging at the bottom that the piece was edited. As Josh Blackman originally reported, and thankfully preserved by excerpting, the first version contained this error:

Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered automatic weapons have been used to kill innocent victims in more senseless public incidents.

As Josh and others noted, not only were automatic weapons not used at any recent high-profile mass shooting, they’ve been essentially illegal in the U.S. since 1934 and since 1986 they’ve been almost impossible to come by. Justice Stevens also repeated his error a few paragraphs down: 

Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years.

When you view the piece now, however, the words have magically disappeared. But they have not, apparently, disappeared from Justice Stevens’s book, which went to press with those errors. I don’t have a copy, but I checked by searching the inside of the book on Amazon for the word “automatic.” 

Why is this omission important? Well, for one it is part of a long series of mistaken statements by many gun-controllers, including President Obama, who made a similar statement in a speech last spring. More generally, the gun control crowd often shows a pronounced ignorance of how guns work and which guns are actually illegal, which certainly doesn’t help when they try to make their case for more strict controls. For just two famous examples, Rep. Carolyn McCarthy (D-NY) once described a barrel shroud as the “shoulder thing that goes up” (it’s not), and Rep. Diana Degette (D-CO) once remarked that after high-capacity magazines are emptied they would not be reusable (they are). 

It seems reasonable to conclude that, based on the prevalence of these errors by people who should know better, they don’t care too much whether their statements are accurate. To them, the fact that someone used a weapon to commit a mass shooting is enough to ban that weapon. Unfortunately for them, there is nothing about the weapons used in those atrocious crimes that meaningfully distinguishes them from weapons used every day by responsible, law-abiding Americans. The AR-15, for example, used by the shooter at Newtown, is the most popular rifle in the U.S. Ninety-nine point nine percent of the time it is used responsibly, including for self-defense. Ipso facto, it is not just for “spraying death.”  

A better argument can be made that actual automatic machine guns “spray death.” And if those are what Justice Stevens believes were used at Newtown, then that seems relevant to his position on guns. I imagine, however, that his views wouldn’t change if he understood the truth. At the very least, however, the Washington Post should make clear that the piece was edited. 

Time for the Supreme Court to Explain the Scope of the Second Amendment

From the 1939 case of United States v. Miller until 2008’s District of Columbia v. Heller, the Supreme Court left unclear what right the Second Amendment protects. For nearly 70 years, the lower courts were forced to make do with Miller’s vague guidance, which in many jurisdictions resulted in a cramped and limited right to keep and bear arms, erroneously restricted to militia service. While Heller did eventually clarify that the Second Amendment secures an individual right to keep and bear arms for self-defense, the ruling left many questions about the scope of that right unanswered (and 2010’s McDonald v. City of Chicago merely extended the right to people living in the states, without further defining it).

Since then, several courts have made clear that they plan to take only as much from Heller as they explicitly have to. One of these is the U.S. Court of Appeals for the Third Circuit, which last year in Drake v. Filko upheld New Jersey’s “may-issue” handgun law, which says that an individual may be granted a carry license—read: may be permitted to exercise her Second Amendment rights—only if she proves an urgent need to do so to the satisfaction of a law enforcement officer. In order to show this need, one must prove, with documentation, that there are specific, immediate threats to one’s safety that cannot be avoided in any way other than through possession of a handgun. If an individual can actually persuade the local official—who has total discretion to accept or deny the claim—then she gets a license for two years, at which time the gun owner must repeat the entire discretionary process (proving an imminent threat, etc.) to renew the permit.

Justice Delayed Is Justice Denied

Four years is too long to wait for a ruling on a constitutional claim. Not for the ultimate vindication of a right that’s been summarily denied, mind you, but a mere ruling in a case asserting this right that has long ago been briefed and argued.

That’s the situation faced by my colleague Tom Palmer and his fellow plaintiffs in a lawsuit challenging the District of Columbia’s complete ban on carrying guns for self-defense outside the home. Palmer v. District of Columbia was one of many suits filed in the wake of the Supreme Court’s 2008 ruling in District of Columbia v. Heller, which found that the Second Amendment protects an individual right to keep and bear arms. (Recall that two years ago the Seventh Circuit struck down a similar ban in Chicago, the only other place in the country where there is no legal way to exercise the right to carry – forget places like New York, New Jersey, and Maryland, where it’s possible in theory even if local law enforcement can, and always do, deny requests in practice.)

This case has now been pending for more than four years without a resolution of cross-motions for summary judgment – both parties agreed that the case can be decided by the judge on the law, without fact-finding or a trial. The docket (see pages 37-42 of this document) is one of the weirdest I’ve ever seen for a federal case: Palmer was filed in August 2009 and a hearing was held in January 2010, at which point Judge Henry Kennedy took the case under advisement. In July 2011, Chief Justice John Roberts (!) reassigned the case from Judge Kennedy to Judge Frederick J. Scullin, Jr. of the Northern District of New York. (In other words, Judge Kennedy sat on the case for 18 months and then retired.) There was a status conference soon after, then a motion hearing scheduled for August 2012 (more than a year later), which was rescheduled for October 2012, after which Judge Scullin took the case under advisement, and then… nothing. Plaintiffs’ counsel Alan Gura (my friend and sometime co-author) filed a motion to expedite in August 2013, and then a petition for a writ of mandamus – a request that a higher court command a government official to do something – with the U.S. Court of Appeals for the D.C. Circuit in October 2013.

Government Should Bear the Burden of Showing Why You Can’t Exercise Your Right to Bear Arms

For anyone who has watched The Wire, it’s no surprise that Maryland (Baltimore, in particular) has one of the highest rates of violent crime in the country. In an alleged effort to address this persistent problem, the state requires an applicant for a license to carry a handgun to demonstrate “a good and substantial reason to wear, carry, or transport a handgun as a reasonable precaution against apprehended danger.”

Under this prove-it-to-use-it standard, Baltimore County resident Raymond Woollard, who had had a license to carry for six years (after a violent home invasion), was denied a license renewal because he could not document that he had been threatened recently. The fact that he had been attacked by his son-in-law seven years earlier, an event to which it took law enforcement two-and-a-half hours to respond, was insufficient to meet Maryland’s special-need requirement.

Woollard, along with the Second Amendment Foundation, thus brought suit challenging the law under the Supreme Court’s recent decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). Although the district court ruled for Woollard, finding that Maryland’s restriction violated the Second Amendment, the U.S. Court of Appeals for the Fourth Circuit overturned the lower court and reinstated the law. The court purported to apply “intermediate scrutiny,” which allows a challenged statute to survive only if it is “substantially related to the achievement of an important governmental interest,” but in fact, hardly applied any scrutiny at all. The court’s analysis was both circular and contemptuous of Heller, finding that a regulation is “substantially related” to the valid government interest of curtailing criminal gun violence if it merely reduces the number of citizens lawfully carrying handguns, thus accepting the state’s implicit argument that the right to bear arms was itself the problem, one that should not be overcome without “a good and substantial” reason.

A Brief Civil Liberties Quiz

See if you can spot the civil-liberties victory:

  1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
  2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
  3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
  4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
  5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

Bureau of Justice Statistics Reports Firearm Homicides are Down 39% Since 1993; Continues to Severely Under-report Defensive Gun Use

Yesterday, the Bureau of Justice Statistics (BJS) released a special report, Firearm Violence, 1993-2011. Not surprisingly, at least for those who follow crime statistics, the report shows that firearm homicides went down 39% between 1993 and 2011. The report also reconfirms many things that gun-rights supporters have been saying for decades: that less than 2% of prison inmates in 2004 bought their firearm from a “flea market or gun show,” and that “2% of state inmates and 3% of federal inmates were armed with a military-style semiautomatic or fully automatic firearm.”

Also not surprising is that very few people know about the dramatically reduced crime rate. Also released yesterday was a Pew study on Americans’ perceptions of the crime rate. Despite cutting the murder rate nearly in half in less than twenty years, only 12% of Americans believe that gun crime has dropped in the past two decades. Fifty-six percent believe it has increased, and 26% believe it stayed the same. This is not new. People often don’t realize how much better things are getting, and this fact can push public policy in misguided directions.  

Many have tried to explain this precipitous drop in crime, including one study that connected it to the decreased amount of lead in the environment. Whatever the cause, one thing is clear: there are about 50 million more guns in America now than in 1993 and crime did not go up.

Now, I will not oversell that statistic, not only because it does not prove the thesis “more guns, less crime,” but also because overselling statistics is a big problem in the gun control debate for both sides. For example, to take another statistic from the BJS report: the number of times per year people use guns to stop or curtail crime.   

Despite the fact that the BJS is quite good at some things, it is uniquely bad at measuring the level of defensive gun use (DGU) in America. And despite the fact that I can easily demonstrate this to anyone with even the slightest inclination to allow their minds to be changed, I am not optimistic that the gun controllers will listen.  

Gun controllers are constantly accusing gun-rights supporters of over-estimating the instances of DGU, and their primary source is the data from the National Crime Victimization Survey, which they rely on unquestioningly. The disparity between the BJS statistics and other studies is stark, as much as 30x. For example, yesterday’s BJS report claims that, between 2007-2011, crime victims used guns to stop or curtail crime 235,700 times. This aligns with the general tendency for the BJS to record between 60,000 and 100,000 DGUs per year. By contrast, Florida State’s award-winning criminologist Gary Kleck has found there may be as many as 2.5 million DGU instances per year. Gun-controllers almost always dismiss Kleck’s data as wildly inaccurate, if not NRA-funded propaganda (it is neither), and instead unquestioningly accept the BJS numbers. See, for example, this study by the Violence Policy Center, which simply regurgitates the BJS numbers, and this discussion of the VPC report at Mother Jones. This New York Times post on the VPC report sneeringly offers this observation on the disparity between Kleck’s and the BJS’s numbers:

Readers can judge for themselves whether the V.P.C. or the N.R.A. is likely to have better numbers. The V.P.C. used data from the National Crime Victimization Survey, conducted by the Bureau of Justice Statistics. The N.R.A.’s estimate is the result of a telephone survey conducted by a Florida State University criminologist.

I accept the Times’s invitation, and I will judge for myself:

Supreme Court Ducks Key Second Amendment Issue — For Now

Alas this morning the Supreme Court declined to review Kachalsky v. Cacace the challenge to New York City’s effective ban on carrying firearms (which I’ve previously discussed).  To correct some early media reports, this does not mean that the Court upheld the law or affirmed the decision of the U.S. Court of Appeals for the Second Circuit.  It simply means that the scope of the Second Amendment right to keep and bear arms outside the home remains an open question, subject to divergent rulings in the lower courts.

But those lower-court rulings have indeed diverged greatly, creating what lawyers call a “circuit split.”  The Second Circuit in Kachalsky applied a nominal intermediate scrutiny that ultimately became perfunctory deference to the legislature, with the burden on the plaintiffs to justify the exercise of their rights. The Seventh Circuit, meanwhile, in an opinion by Judge Richard Posner in Moore v. Madigan, struck down Chicago’s complete prohibition on carrying firearms, finding that Illinois could not justify such extreme measures.  For “a severe burden on the core Second Amendment right of armed self-defense,” the same court ruled in an earlier case, the government must provide “an extremely strong public-interest justification and a close fit between the government’s means and its end.””  The D.C. and Fourth Circuits, meanwhile, have presumed the constitutionality of legislated restrictions, although D.C. Circuit Judge Brett Kavanaugh wrote an important dissent suggesting that the scope of the right to carry should be determined by analogizing historical practice and precedent.

Those who follow firearms policy now recognize that this issue that was left open by District of Columbia v. Heller – the scope of the individual right that the Second Amendment protects – is crying out for resolution.  As Cato said in the brief we filed supporting the Kachalsky petition:

The Second Amendment’s scope and the means of assessing restrictions on that right thus remain largely undefined. No other constitutional right has been so left to fend for itself in the lower courts. This Court has not hesitated to seize opportunities to ensure the protection of other constitutional rights—recognizing historically based categorical rules, developing comprehensive methodologies, and announcing robust standards. The Second Amendment merits, and now needs, the same solicitude.

Whatever analytical approach the Court ultimately employs, the time has come to begin filling in the picture that the Court outlined in Heller, and to bring some harmony to the cacophony below.

We’ll now have to wait a bit longer for the Court to do that. As is always the case, the Court doesn’t give reasons for granting or denying review, but it’s possible that the Court didn’t want to take a gun case from the Second Circuit, which has jurisdiction over Connecticut, where the Newtown shootings occurred.  Or it may be waiting for Moore v. Madigan, because taking a petition brought by a state government would be seen as less discretionary – and would also allow the Court to focus on a complete ban on the right to carry rather than severe restrictions.  (D.C. and Illinois are the only jurisdictions that have flat bans, while 10 states, including New York, “may issue” such licenses in practice, but most rarely do in practice except to celebrities and former law enforcement officers.  The vast majority of states “shall issue” carry licenses unless the applicant has a felony conviction or mental illness, while a handful don’t require a license at all.)  

In any event, the issue isn’t going away and there’s only so long that the Court will be able to bear the legal incongruity and uncertainty. As former solicitor general Paul Clement – who represented the NRA in McDonald v. Chicago put it, “They’re eventually going to have to take it.”

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