Tag: second amendment

Gun Control After McDonald

I recently appeared on the Patt Morrison Show in southern California opposite Paul Helmke of the Brady Campaign to Prevent Gun Violence in a segment that begs the question of what gun control laws will look like if the Supreme Court incorporates the Second Amendment with the McDonald v. Chicago case. The audio of the program is here, but the issue merits a more detailed discussion than I could get into on the radio.

The litigation over the boundaries of the Second Amendment in the District of Columbia previews the kinds of gun laws that will face court scrutiny.

First, certain restrictions on the purchase of firearms will likely be overturned. California maintains a “safe gun roster” of handguns that manufacturers have successfully submitted for safety testing. Following the Heller decision, the District adopted California’s roster. The roster is very specific, and handgun models are certified “safe” right down to the color. The District rejected applications to register two-tone guns, discontinued models, and guns not on the California roster. Three plaintiffs filed suit, alleging that this policy violated constitutional protections against irrational administrative regulations. The District relented, expanding its roster to include the “safe handguns” listings for Maryland and Massachusetts.

California courts are likely to reach similar conclusions. The Calguns Foundation has a plaintiff who wants to register a Glock handgun. The state has certified the right-handed but not the ambidextrous version, and the Calguns plaintiff was born without a right arm below the elbow. This compelling case, along with others parallel to the DC plaintiffs, will force California to open up its roster.

Second, jurisdictions will be forced to allow some form of handgun carry, either open or concealed. Outright bans on concealed carry cited in cases from the mid-1800’s come from a time when it was assumed that only brigands carried handguns concealed, and it was an unquestioned right of the people to carry arms openly wherever they went. States and localities will not be able to delete the right to bear arms from the right to keep and bear arms.

My colleague Tom Palmer is currently litigating this issue in the District of Columbia (complaint here), and states will have to confront the plain text of the Second Amendment and clear historical recognition of a right to be armed outside the home.

California allows open carry as long as the handgun is unloaded, but Los Angeles and other jurisdictions in the state refuse to issue concealed handgun permits. California will probably opt for concealed carry when push comes to shove. Public views have shifted to an “out of sight, out of mind” mentality, and concealed carry is the rule in most states. A California police officer recently put a comment up on Facebook that proposes intimidating open carriers with violence. “Haha, we had one guy last week try to do it! He got proned out and reminded where he was at and that turds will jack him for his gun in a heartbeat!” Turds indeed.

This brings us back to the Starbucks controversy that prompted the radio segment. Gun control proponents asked Starbucks to ban firearms from their coffee shops, and gun rights activists asked that they continue their current policy of following the law of the jurisdiction where each franchise is located.

The call-ins to the radio show expressed a willingness to boycott Starbucks if it keeps its “follow the law” policy, but that’s a rationale to boycott gas stations, grocery stores, and restaurants across the nation. If self-defense scares you that much, the best advice is to stay home. Or venture out and be a good victim.

Callers also expressed concerns about off-duty cops brandishing guns while intoxicated, and this is something we should take seriously. As I’ve said before, no magical powers accrue to a sworn officer. That’s a great case for barring everyone from carrying and drinking in public, law enforcement officers included. Federal law does this – the Law Enforcement Officers Safety Act allows current and retired law enforcement officers to carry concealed nationwide but requires that they not be under the influence while doing so. The same can’t be said for some state laws that make law enforcement officers a higher class of citizens than everyone else. Virginia allows retired law enforcement officers from any jurisdiction to imbibe while armed, but citizens with concealed handgun permits must transition from concealed carry to open carry when entering an establishment that serves alcohol for on-premises consumption. Better to treat permit holders and officers alike, and allow carry in restaurants but bar alcohol consumption while armed.

It’s unclear what the patchwork of gun laws across the nation will look like in ten years, but Eugene Volokh gives a framework for analysis in this article. Cato held an event the day before oral argument of the McDonald case, and our brief is available here. Ilya Shapiro and Josh Blackman discussed the application of the Privileges or Immunities Clause in this excellent article, and provided some post-argument commentary.

Gun Rights Secure, Liberty Less So

This morning the Court heard argument in McDonald v. Chicago, the case asking whether the right to keep and bear arms extends to protecting against actions by state and local governments.  Just as importantly, it asked whether the best way to extend that right would be through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment (because the Second Amendment doesn’t apply directly to the states).

From the initial questioning through the end, it was quite clear that those living in Chicago – and, by extension, New York, San Francisco, and other places with extreme gun restrictions – will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves.  Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go.   Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it – even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution.  As it stands now – and as it seems will be the case after McDonald is decided – many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection.  That is an unprincipled jurisprudence and one that hurts the rule of law.

In short, it is a shame that the Supreme Court seems to be wasting a perfect opportunity to bring constitutional law closer to the Constitution.  It is an even greater shame that it is wasting this chance to use guns to protect liberty.

Civil Liberties Advocates, Not ‘Gun Advocates’

In this NPR story Nina Totenberg gives both sides their say.  But twice she refers to the people advocating Second Amendment rights as “gun advocates” (and once as “gun rights advocates”). That’s not the language NPR uses in other such cases. In 415 NPR stories on abortion, I found only one reference to “abortion advocates,” in 2005. There are far more references, hundreds more, to “abortion rights,” “reproductive rights,” and “women’s rights.” And certainly abortion-rights advocates would insist that they are not “abortion advocates,” they are advocates for the right of women to choose whether or not to have an abortion. NPR grants them the respect of characterizing them the way they prefer.

Similarly, NPR has never used the phrase “pornography advocates,” though it has run a number of stories on the First Amendment and how it applies to pornography. The lawyers who fight restrictions on pornography are First Amendment advocates, not pornography advocates.

And the lawyers who seek to guarantee our rights under the Second Amendment to the U.S. Constitution should be called Second Amendment advocates, or advocates of the right to self-defense, or civil liberties advocates. Or even “gun rights advocates,” as they do advocate the right of individuals to choose whether or not to own a gun. But not “gun advocates.”

Using Guns to Protect Liberty

Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago – the Second Amendment case with implications far beyond gun rights.  The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments.  The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights.  The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens.  This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights.  Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments.  For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.

I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation.  Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here.  Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject).  And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).

Keeping Pandora’s Box Sealed

The moment everyone was waiting for has arrived: The article Josh Blackman and I wrote, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” has officially come out in the Georgetown Journal of Law & Public Policy.  (I previously blogged about this article here, among other places, and here’s a recent reference on Reason’s blog.)  The journal thought enough of our work to publish it on page 1 of issue 1 of this year’s volume.

We’re also grateful to the journal editors for expediting the editing and publication process generally so that the article would come out in time for the McDonald v. Chicago argument.  Indeed, that strategy is already paying off, with “Keeping Pandora’s Box Sealed” having been cited in the petitioners’ reply brief – not to mention Cato’s amicus brief.  The Georgetown JLPP has been cited in Supreme Court opinions the past two terms, so we’re cautiously optimistic about our chance to continue this trend.

In addition to reading the article (also available on SSRN), you can also attend various presentations I’m giving in the next two weeks about McDonald v. Chicago and properly extending the right to keep and bear arms to the states:

  • Feb. 23 at lunch - University of New Mexico Law School (sponsored by the Federalist Society) - “McDonald v. City of Chicago and Properly Extending the Right to Keep and Bear Arms”
  • Feb. 25 at 1:30pm EST/10:30 PST - ABA Continuing Legal Education Teleconference - “Beyond Gun Control: McDonald v. City of Chicago and Incorporation of Bill of Rights” (registration fee, 1.5 hours of CLE credit)
  • Mar. 1 at 4pm - Cato Institute Policy Forum - “McDonald v. Chicago: Will the Right to Keep and Bear Arms Apply to the States?
  • [Mar. 2 at 10am - Supreme Court argument in McDonald - I will be giving a statement to the media scrum on the marble steps afterward]
  • Mar. 2 at 3:30pm - Georgetown University Law School - Post-Argument Discussion of McDonald and “Keeping Pandora’s Box Sealed” (sponsored by the GJLPP and the Federalist Society)
  • Mar. 3 at 12pm - Cato Institute Hill Briefing in B-340 Rayburn House Office Building - “McDonald v. Chicago: The Fourteenth Amendment and the Future of Gun Rights

You can also listen here to a half-hour podcast about “Keeping Pandora’s Box Sealed” that I recently recorded with the Independence Institute’s David Kopel (also a Cato associate policy analyst).

NRA Shoots Itself in the Foot

I previously blogged about the NRA’s misbegotten motion, which the Supreme Court granted, to carve 10 minutes of oral argument time away from the petitioners in McDonald v. Chicago.  Essentially, there was no discernable reason for the motion other than to ensure that the NRA could claim some credit for the eventual victory, and thus boost its fundraising.

Well, having argued that petitioners’ counsel Alan Gura insufficiently covered the argument that the Second Amendment should be “incorporated” against the states via the Fourteenth Amendment’s Due Process Clause, the NRA has now filed a brief that fails even to reference the four biggest cases regarding incorporation and substantive due process.  That is, the NRA reply brief contains no mention of Washington v. Glucksberg (1997), Benton v. Maryland (1969), Duncan v. Louisiana (1968), or Palko v. Connecticut (1937).  (The NRA did cite those cases in its opening brief.)  What is more, it also lacks a discussion of Judge O’Scannlain’s magisterial Ninth Circuit opinion in Nordyke v. King (2009), which the Supreme Court might as well cut and paste regardless of which constitutional provision it uses to extend the right to keep and bear arms to the states!

I should add that the petitioners’ reply brief does cite all of those aforementioned cases (as well as the “Keeping Pandora’s Box Sealed” law review article I co-authored with Josh Blackman).  I leave it to the reader to determine whether it is Alan Gura or the NRA who is better positioned to argue substantive due process – or any other part of the McDonald case.

For more on the rift between the McDonald petitioners and the NRA, see this story in today’s Washington Post (in which I’m quoted, full disclosure, after a lengthy interview I gave the reporter last week).

(Full disclosure again: Alan Gura is a friend of mine and of Cato, and I suppose I should also say that I’ve participated in NRA-sponsored events in the past.)

NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy

Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago.  What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument.  (Full disclosure: Alan Gura is a friend of mine, and of Cato.)

The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment – presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article.  This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate.  Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation – sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.

Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons.  Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).

I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose – and the reason behind its granting – was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.”  This kind of comment – again impugning Alan’s litigation strategy – is uncalled for, and renews concerns over the NRA’s conduct.

Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause.  That didn’t change when his case was taken up by the Supreme Court.  The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history.  A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep!  In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel.  Alan’s – and all attorneys’ – job is to be ready for anything.

If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side).  It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.

Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.