Heller

12 posts

The Post-Bruen Landscape

First, some background because I haven’t written on this stuff in a while. A few weeks ago, the Supreme Court issued its ruling in NYSRPA v. Bruen. At issue was New York City’s restrictive and discriminatory system for issuing permits to carry a firearm.

The law in question was New York’s Sullivan Act, which I’ve written on before. It required a permit to carry a firearm outside the home, then set up an arbitrary, discretionary process under which minorities and union organizers were routinely denied. In fact, the original text singled out the Irish and used the phrase “swarthy immigrants.”

In the intervening decades, New York made it impossible for anyone but the rich and connected to get permits. A business owner in a bad neighborhood had no chance of being approved, but celebrities like Robert DeNiro and Bill Cosby certainly did. In one case, two members of Aerosmith were given permits in exchange for backstage passes even though they didn’t qualify at all.

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Civil Rights

As Good As It Gets

1 comment

The President has picked Solicitor General Elena Kagan to take Justice Stevens’ seat on the Supreme Court. Kagan is a safe bet for the administration. She’s got excellent credentials, and there don’t seem to be any significant controversies in her past. Confirmation will likely be somewhat uneventful.

In any case, no matter what her politics may be, it’s unlikely she’ll be able to shift the Court to the left in the way Stevens sometimes was.

The legal community seems to have a great deal of respect for her. While Dean at Harvard Law School, she was able to unite disparate political factions, and even to earn the respect of conservatives. Ilya Somin points out that she’s got the intellectual credentials, and more important, she’s willing to accept views that differ from her personal politics. On matters of the 1st Amendment, Rick Pildes thinks she would have voted with the majority in Citizens United.

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Civil Rights

U.S. v Skoien and Review Standards

Steven Skoien was indicted under § 922(g)(9) for possessing firearms after being convicted of midsdemeanor domestic violence. He appealed, arguing that the statute under which he was convicted is unconstitutional under the terms of the Heller decision.

The 7th Circuit has agreed and is vacating his indictment [pdf] until such a time that the government can prove that its interests are in balance with the means involved. The law in question places a lifetime prohibition on gun ownership for those convicted of domestic violence, even if only a misdemeanor.

The importance? Up until now, it has not been established what standard of review Heller implied for the constitutionality of gun laws. According to the 7th Circuit:

Although Heller did not settle on a standard of review, it plainly ruled out the deferential rational basis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies.

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Civil Rights

First Briefs for NRA/SAF v. Chicago

California Attorney General and former Presidential Candidate Edmund “Jerry” Brown has submitted an Amicus Curiae brief (pdf), asking the Supreme Court to hear the joint NRA and SAF suits against Chicago. At first, it seems surprising and perhaps a bit heartening, but don’t worry, Brown’s got an agenda here.

It opens with the pronoucement:

(…) unlike many states, California has no state constitutional counterpart to the Second Amendment. Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns in their homes as affirmed in District of Columbia v. Heller.

He points out that the Heller ruling failed, “to establish a standard of review applicable to asserted Second-Amendment infringements,” which is correct. He also concurs with Halbrook and Gura that the current schism between the 9th Circuit and other circuit courts on the matter of incorporation can only be settled by the Supreme Court.

Civil Rights

Return of the Four Horsemen

Led by Justice Kennedy, the Supreme Court struck down the 2nd Circuit’s decision in Ricci v. Destefano (pdf) this morning. He was joined by Justices Alito, Scalia, Thomas, and Roberts. The decision shows a conservative-leaning court interpreting Title VII in its original spirit, which was to be completely colorblind:

Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers
cannot take adverse employment actions because of an individual’s race. (p. 19)

It’s worth noting that the balance of Justices in this case is exactly the same as it was in Heller. When the question of incorporating the 2nd Amendment under the aegis of the 14th comes before the Court next year, we should be able to expect a 5-4 margin.

Our current situation is strikingly similar to the one existing between 1930 and 1937 in the Hughes Court. Much of Roosevelt’s early New Deal legislation was stalled by a bloc of conservative Justices comprised of McReynolds, Devanter, Sutherland and Butler.

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Civil Rights

Maloney v. Rice

Today’s the one-year anniversary of the Supreme Court’s decision in Heller v. District of Columbia. James Maloney, appellant in Maloney v. Cuomo, has filed a petition for his case to be heard before the Supreme Court next session. The case is now Maloney v. Rice (pdf). Kathleen Rice is the current District Attorney for Nassau County.

The petition follows and supplements the 14th Amendment claim Mr. Maloney made before the 2nd Circuit in February. It points out that the Circuit Courts are now divided three ways on the question of 14th Amendment incorporation, which would demand that the Supreme Court rectify this discrepancy. It’s worth noting that 7th Circuit Justice Easterbrook also acknowledged this disparity in NRA v. Chicago.

Maloney also recognizes the existence of the pending petitions from Alan Gura and the NRA, and he suggests consolidating all three:

Either or both of the pending petitions for certiorari on the Second Amendment incorporation issues arising out of National Rife Association would be fitting for this Court to grant because those cases present the same Fourteenth Amendment issues concerning applicability of the Second Amendment to the States invoked in this petition.

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Civil Rights

Irresistible Force, Meet Immovable Object

It appears that the DC Voting Rights act (H.R.157/S.160) has been shelved, much to the chagrin of its supporters. It was approved in the Senate by a 61-37 margin, despite the inclusion of Senator Ensign’s amendment, which imposed enactment of the Second Amendment Enforcement Act. It seems the House isn’t having it.

If this situation seems familiar, that’s because Congress was forced to authorize the carry of firearms in national parks last month if they wanted the Credit Card Holder’s Bill of Rights to pass. This situation ruffled more than a few feathers, but it set up an interesting precedent. Essentially, if Congress wants to get a spendy bill passed in a timely matter, they’re going to have to make concessions to gun rights.

And frankly, the irony is just delicious.

Civil Rights

I love Mondays

This week, 23 state Attorney Generals signed off on a letter (pdf) to Attorney General Eric Holder, in which they advised against any sort of renewal of the 1994 Assault Weapons Ban. Part of the letter reads,

As Attorneys General, we are committed to defending our constituents’ constitutional rights —including their constitutionally-protected right to keep and bear arms. This duty is particuarly important in light of the United States Supreme Court’s recent Heller decision, which held that the Second Amendment “elevated above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The high court’s landmark decision affirmed that individual Americans have a constitutionally-protected right to keep and bear arms. We, the undersigned Attorneys General, are staunch defenders of that right and believe that it should not be encroached upon without sound justification — and a clear law enforcement purpose. (…) we believe that additional gun control laws are unnecessary.

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Civil Rights

2nd Amendment: Closer to Incorporation

Nordyke v. King has been winding its way up to the 9th Circuit Court in California since 2003. The plantiff charged that his 1st and 2nd Amendment rights were being violated by enforcement of a 1999 Alameda County ordinance prohibiting the carry of arms on County property.

In the shadow of Heller, this was one to watch.

Unfortunately, the 9th Circuit ruled that the ordinance was just and would stand.

But that’s not the big news. This is:

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments. (Nordyke v. King, p. 29 [pdf])

Civil Rights

DC vs. Heller: “Starting Afresh”

Oral arguments in DC vs. Heller took place this morning, and though the Supreme Court may not have made up their minds, their inclinations seem quite clear:

(…) the right to keep and bear–I’m sorry. It’s one right: to keep and bear, not two rights, to keep and to bear.

Justice Stevens to General Clement, DC vs. Heller, Oral Arguments 03/18/08, p. 38

Audio has been released and is streaming (rm) from CSPAN. A transcript (pdf) is available here.

Civil Rights

Georgia Carry Amicus brief for Heller

GeorgiaCarry.org has posted a copy of their brief (PDF) in DC vs. Heller, and it’s a good read.

“[T]he simple truth-born of experience is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process.”

—Silveira v. Lockyer, 328 F.3d 567, 569 (9th Cir. 2003)

Civil Rights

D.C. first, then the nation.

This chestnut comes from Laura Washington at the Sun Times: “If I had my way, the gun lobby would be looking at three yards and a cloud of dust. Let’s get organized and shove tougher gun policies right down their throats.”

This sort of thing is typical of the gun-control crowd, and gang, we’re only going to see more in the coming months.

Why? Because they’ve been pushed into a corner. They had their chance with the Brady Bill in 1994, and now they’re seeing the failure of their agenda on both local and national levels.