Kopel's Corner weblog July-August 2011 archive

Could President Perry carry a gun?

David Kopel • August 19, 2011 4:58 pm

Chris Moody attempts to analyze the issue for The Ticket. The analysis could have been improved by reading the laws of the District of Columbia.

Moody describes D.C. as "a city that bans carrying firearms." That's not exactly correct. The D.C. Code generally prohibits carrying a firearm "without a license issued pursuant to District of Columbia law." D.C. Code sect. 22–4504. It is true that in practice, the D.C. government virtually never issues carry licenses to citizens. However, the Code makes various exceptions to the license requirement, including that "The provisions of sect. 22–4504 shall not apply . . .to officers or employees of the United States duly authorized to carry a concealed pistol . . ." sect. 22–4505(a).

Thus President Perry could simply authorize himself to carry a concealed pistol. For good measure, he could likewise authorize the entire White House staff, or indeed every single employee of the United States government, to also carry a concealed pistol in D.C.

As the Moody article points out, President Perry could ask the D.C. police to deputize him, in order to take advantage of the D.C. law allowing the police to carry guns, but President Perry would have no practical need to ask the D.C. police to use their discretion to grant him the ability to do something he can do without their permission anyway.

UCLA's Adam Winkler suggests that President Perry could issue an Executive Order authorizing him to carry. Executive Orders can apply solely to the Executive Branch of the federal government. An Executive Order could be one mechanism (although certainly not the only one) by which President Perry could "duly authorize[]" gun carrying by himself or Executive Branch employees. However, if the D.C. Code did not have the exception for federal employees, then it's doubtful that an Executive Order could overcome a carrying ban enacted by the D.C. City Council. One might argue that since the entire D.C. city government, with its limited home rule powers granted by Congress, is part of the federal government, the President can by Executive Order negate the operation of a D.C. City Council law. However, as far as I know no President has ever tried to go so far with an Executive Order. And an Executive Order certainly cannot violate a specific congressional statute, including the statute granting partial home rule powers to the D.C. City Council. (The congressional grant of home rule actually excluded criminal law, so D.C. styles its anti-gun laws as "health" laws, and the courts have thus far let D.C. get away with it. However, even if the D.C. gun laws are arguably ultra vires, an Executive Order would not seem to be the appropriate mechanism to deal with them.)

Moody also raises the issue of the Secret Service:

The Secret Service, however, could make a very serious argument that the president shouldn't be carrying a weapon for his own protection. Remember, a spirited debate broke out in the days leading up to President Obama's inauguration over whether he would be forced to surrender his Blackberry for security concerns. (In the end, Obama got to keep his Blackberry, but under certain conditions.) If a Blackberry's almost off limits, you can imagine how the Secret Service might react if the president wanted to pack a Glock.

Well, President Obama's decision to accept some restrictions on his Blackberry was his choice, presumably made after considering the advice of the Secret Service. The President is in charge of the Secret Service, and not vice versa. The Secret Service cannot "force" him to do anything. They're not a Praetorian Guard. So when First Lady Eleanor Roosevelt refused to allow the Secret Service to drive for her, or even accompany her, as she traveled around the United States, there was nothing the Secret Service could do about it. The Secret Service did urge her to carry a concealed handgun, and learn how to use it, and she took their advice. After the assassination of President William McKinley, new President Theodore Roosevelt started carrying his own handgun for protection.

As far as we know, there is not a shred of evidence that concealed carry by either Roosevelt had any negative impact on their security. So there's no reason to imagine that the Secret Service would have a good reason to urge President Perry not to carry a handgun. Unlike a Blackberry, a handgun does not send wireless communications which could be intercepted by foreign spies, nor does it contain a GPS device which can reveal the user's location.

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Categories: Executive Branch, Right to carry 115 Comments

Reagan's infamous speech in Philadelphia, Mississippi

David Kopel • August 16, 2011 6:18 am

In 1980, one of the major party presidential nominees opened his general election by delivering a speech in a small town in the Deep South that just by coincidence happened to be the national headquarters of the Ku Klux Klan. That same candidate had previously complained about federal housing policies which attempted "to inject black families into a white neighborhood just to create some sort of integration." He argued that there was "nothing wrong with ethnic purity being maintained." That candidate was President Jimmy Carter, the Democratic nominee.

Carter kicked off his general election campaign with a speech in Tuscumbia, Alabama. Although the Klan's headquarters were located in that small town, Carter was not appealing to the Klan vote, but was instead hoping to win the votes of the more than 40,000 people who saw him speak at the town's annual Labor Day fair. Perhaps Carter chose to start his general election campaign in rural Alabama because he recognized that Reagan might take away some of the southern states that had been crucial to Carter's win in 1976. As things turned out, Carter was right to be concerned; he ended up losing Alabama by 1%.

After the Republicans nominated Ronald Reagan in Detroit in July, he gave his first post-convention speech in New Jersey, near the Statue of Liberty. While the informal opening date of the general election campaign is traditionally Labor Day, Reagan continued to campaign during August, and on August 3, 1980, spoke at the Neshoba County Fair in Mississippi. The Neshoba Fair is large and popular, which probably explains why Democratic Senator John Glenn campaigned there in 1983, when seeking the presidential nomination, and why Democratic presidential nominee Michael Dukakis spoke there during the 1988 general election campaign, shortly after being nominated by the Democratic Convention.

Seven miles away from the fairgrounds is the town of Philadelphia, Mississippi, where three civil rights workers were murdered in 1964. Unfortunately, it would be difficult to find many places in Alabama or Mississippi which are not within seven miles of the scene of some infamous past act of racial violence, such as a lynching.

Reagan's Neshoba speech was 33 paragraphs, consisting almost entirely of remarks about economics and jokes about Jimmy Carter. In the middle of the speech, he discussed his experience with welfare reform as Governor of California. He began by rebutting the idea that people on welfare are lazy and don't want to work. To the contrary, said Reagan, they were just trapped by bureaucracy. Welfare, education, and other programs would work better for their beneficiaries if they were managed by state and local governments, rather than federally:

"I don't believe stereotype after what we did, of people in need who are there simply because they prefer to be there. We found the overwhelming majority would like nothing better than to be out, with jobs for the future, and out here in the society with the rest of us. The trouble is, again, that bureaucracy has them so economically trapped that there is no way they can get away. And they're trapped because that bureaucracy needs them as a clientele to preserve the jobs of the bureaucrats themselves.

"I believe that there are programs like that, programs like education and others, that should be turned back to the states and the local communities with the tax sources to fund them, and let the people [applause drowns out end of statement].

"I believe in state's rights; I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we've distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I'm looking for, I'm going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there."

A rather mainstream sentiment, even if some devotees of federal centralization might disagree with it. Indeed, the bipartisan welfare reform law signed by President Clinton carried out Reagan's vision, by returning much of the control of federal welfare programs to the states.

Some ignorant people claim that "state's rights" is just a euphemism for racism. The phrase certainly has been sometimes been misused that way, but it is false to claim that the phrase is necessarily racist. Rep. Barney Frank (D-Mass.) introduced the "States' Rights to Medical Marijuana Act" in the 107th, 108th, and 109th Congresses.

Reagan ended up winning Mississippi by 1.4% of the vote. Both Reagan and Carter were politically smart to take the opportunity to speak before large audiences in the rural South in states where the election would be close. It would be false to say that Carter was appealing to racists because he kicked off his campaign in a town that was the current home of the Ku Klux Klan, and it would be equally false to say that Reagan was appealing to racists because he mentioned his lifelong theme of state's rights at a county fair several miles away from the site of an infamous crime 16 years earlier. Today, columnists and commentators who tell you that the "kick off" for Reagan's general election campaign was an appeal to racists are demonstrating that they don't bother to check the facts before they make extreme allegations. People who are making coded appeals to racism don't tell their audience that the "stereotype" of welfare recipients is wrong, and that "the overwhelming majority" of them want to work.

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Categories: Elections, History, Housing, Political Ignorance, Racism, Tenth Amendment 137 Comments

Rifle Golf: America's newest shooting sport

David Kopel • August 5, 2011 7:40 pm

If you're interested in long distance rifle shooting, or in hunting with a rifle, I highly recommend that you check out the Spirit Ridge Rifle Golf facility, in Utah. The "golf" part of the name is really just part of the rules for how your shots are scored. Other than that, it's all rifle and no golf, and it's one of the best opportunities I've ever seen to test one's rifle skills.

The facility is about 90 miles north of Salt Lake City, near Tremonton, Utah. It's remote, but well worth a detour. A round of "rifle golf" works like this: Accompanied by a guide, you drive a six-mile loop on a dirt road on a sheep ranch. Along the way, you stop at four different shooting stations. The stations have tables and chairs for benchrest shooting. At the first station, your first target to shoot at is a black wooden silhouette of a moose, at 442 yards away. At the place where a hunter would place an ideal shot on the moose (at the center of the heart/lungs area), there is a hanging half-circle white metal plate, about 11 inches in diameter. If you hit the plate on the first shot, that's scored as an "eagle" (2 under par). If you get the plate on the second shot, that's a birdie (1 under par). If you miss the first two shots at the distant target, you take your third shot at something closer; on "hole" 1, that's a deer at 285 yards.

Each shooting station has three "holes." So at the first station, you would also try for a grizzly bear (384 yards) and a coyote (169 yards), and then for another moose (511 yards) and a grizzly (192 yards). Your guide will have a very high-powered spotting scope, and give you advice (e.g., "your first shot was perfectly centered, but an inch too high"). For all shooting, you're one side of a valley, shooting at a slope on the other side.

Shooting stations 3 and 4 are the same, with targets ranging from 558 to 188 yards. Station 2 has a single target, a moose at 1000 yards. You get two shots, and if you hit either, strokes are deducted from you total score. If you get it on the first shot, you win a prize.

What I've just described is the "classic" course. If you're already an excellent long distance shot, you can shoot at the "master" targets at each shooting station. The long shots are up to 875 yards, and the shortest is 399. On the thousand-yard hole, your target can be up to 1250 yards away.

Rifle golf provides shooting challenges that most people can never try except when actually hunting. For most people, it's difficult to find a shooting range longer than 200 yards. Even if you're lucky enough to live near a 600 yard range, at the range you and the target will both be at the same elevation. In contrast, the rifle golf targets are at a wide variety of elevations, either higher or lower than the shooter. Thus, it is all the more challenging to estimate how far the bullet will drop due to gravity. (If your rifle scope is zeroed in for 200 yards, then a shot at a target 200 yards away should hit right at the point indicated by the crosshairs on your scope. If the target is further away, then you will need to aim above the cross-hairs point, because as the bullet travels further, it slows down from air friction, and drops more and more due to gravity.) Of course for any given shot, the wind may be blowing, and you'll have to take that into account in placing your shot.

An ethical hunter must have the realistic confidence that a particular shot can be placed where it will quickly kill the animal (either the heart/lungs, or the brain). A shot that hits the animal somewhere else (e.g., the guts or a leg) is a failure; the animal may eventually die from infection, but not necessarily quickly. So for hunting, if you see an elk 275 yards away, you must know whether you and your rifle have the ability to make an ethical shot at that particular distance. Rifle golf is an outstanding way to get a sense of your abilities for long distance shots, so that you can take ethical shots, and avoid unethical ones. Indeed, rifle golf raises the bar somewhat higher, because the white plates constitute only a fraction of the parts of the animal that would constitute an ethical shot. So if you can consistently hit the plate at a given distance, then you can be confident that you can take ethical shots at that distance. (After accounting for other factors, such as whether your field rest of the rifle (e.g., shooting sticks) are as steady as a rifle golf bench.)

Whether or not you hunt, rifle golf is great fun for long distance shooting. Almost any centerfire caliber of .223 or above should be usable for the classic course. Just be sure that your rifle has a scope on it.

Compared to golf golf, the Spirit Ridge Rifle Golf clubhouse is primitive, with running water and toilets, but not much else. So plan on bringing all the gear you need. Presuming you don't show up with an ATV, you'll need to rent one of those at the course, and it's worth paying extra (including a tip) for a guide to go with you, especially your first time around the course.

Spirit Ridge Rifle Golf is an extraordinary shooting experience. I've been to shooting facilities all over the United States, and never found anything remotely comparable to rifle golf. I very highly recommend it.

Categories: Guns 91 Comments

Scotusblog essays on Obamacare's constitutionality

David Kopel • August 3, 2011 11:46 am

This week Scotusblog is running a series of essays, "The Constitutionality of the Affordable Care Act." Contributors so far are Dawn Johnson (Indiana U.), Bradley Joondeph (Santa Clara U., and manager of a very useful blog on the ACA litigation), Bob Levy (Cato), Charles Fried (Harvard), and me. There are many more essays still to come, that will be posted throughout the week. My essay examines some of the questions that the Court will face in granting cert., the tax issue, and the issue of the state coercion in Obamacare's new Medicaid mandates. Conspirators Adler, Kerr, and Somin are among some other scholars who have essays that should be posted soon.

Categories: Constitutional Law, Federalism, Health Care, Taxing and Spending Clause, Tenth Amendment 17 Comments

Comedy of Errors at Univ. of Colorado not very funny

David Kopel • August 2, 2011 5:47 pm

Among the offerings at this summer's Colorado Shakespeare Festival, at the University of Colorado at Boulder, is the Comedy of Errors. The show is clearly a crowd-pleaser, provoking many laughs from most of the audience. The people with whom I saw the show, who generally have pretty good taste in theater, thought it was hilarious. So statistically speaking, if you see the show before it concludes its run in mid-August, you will probably have a great time. That said, I couldn't stand it, and thought it was one of the stupidest things I've ever seen on stage.

Comedy may be Shakespeare's first play, and it has many of the elements that appear in his later comedies. A pair men are identical twins, separately shortly after birth. Each man has a servant, and servants are also identical twins. Each twin pair not only looks alike, they have the same name. The twins from Syracuse (modern Italy) show up in Ephesus (modern Turkey) and much confusion ensues from mistaken identity. There are some small fights, then a big one, and in the last scene, everything is straightened out, and everyone lives happily ever after.

While modern scholars credit Comedy with more social and political complexity than did some earlier scholars, and there's plenty of witty dialogue, it's fair to saw that Shakespeare's comedy-writing skills improved after this early effort.

Among the virtues of the CSF's production this season is an excellent set, which nearly rises to the level of being a character. Impressively, the same set is also used for CSF's parallel production of Romeo & Juliet. The entire cast is hard-working and energetic; the two actors who play the servants (Dromio 1 and Dromio 2) have vivacious comic energy. All the costumes are very good, and help the audience remember who's what.

However, the CSF's version of Comedy of Errors appears to have made its artistic decisions based on the recommendations of Eric Cartman, the puerile 4th-grade boy from the South Park cartoon:

"OK, most people can't understand Shakespeare, because it has too many words. So you need to crank up the visual humor. First, put in a lot of farts and fart jokes. In fact, put in a really long fart that is so powerful that everyone on stage passes out. The audience will love it." (They did.)

"Then, do a lot of pointless stuff that has almost nothing to do with the play. After intermission, have one of the characters throw bags of goldfish crackers to the audience."

"Every good play has lots of dick humor. So one of the characters should stick a fish doll in pants, and have it hanging down for most of the show. Also, if another character says something about sex, he should grab his thing while he says it."

"You know that scene where the wife has an argument with the prostitute that her husband has been visiting? They should pretend that they're sumo wrestlers. Because everyone knows that sumo wrestlers are almost the funniest thing in the world. Except for farts."

"Speech impediments are funny too. Whenever the Duke of Ephesus speaks, he should add an extra syllable for any word ending with ‘s'. So he says ‘Ephesus' as ‘Ephesus-es'. That will be just as hilarious in Act 5 as it is in Act 1."

"Finally, the style for most of the play should be Three Stooges. Except these days, people actually hitting each other would upset the audience. So just use a lot of fake punches, and have somebody clack two boards together at the moment of impact."

Early in the play, one character marvels, "This is the fairyland." Yet the CSF's production of Comedy works relentlessly to dispel theatrical enchantment, to constantly break through the fourth wall, and to remind the audience at every opportunity that they are watching Shakespeare-for-people-who-thought–Shakespeare-for-Dummies–was-too-hard-to-read. Compared to this Saturnalia of moronic vulgarity, Blazing Saddles seems like, well, a Shakespeare play.

Categories: Uncategorized 44 Comments

Natelson on the 14th Amendment and the debt ceiling

David Kopel • August 1, 2011 8:13 pm

In this iVoices.org podcast, Rob Natelson explains why unilateral presidential creation of new debt is: 1. Utterly contrary to the Constitution's structure of limiting executive power. 2. Directly contrary to the text of the 14th Amendment. President Obama, to his credit, declaimed any unilateral power to raise the debt ceiling. But many people–some of whom have taken oaths to uphold the Constitution, or who profess respect for constitutional law–have insisted that the President has unilateral debt power. And since the current deal that is being rushed through Congress may slightly delay the insolvency of the federal government, but not prevent it, understanding what the 14th Amendment says about the issue remains important. Rule of law, not an elective dictatorship.

Categories: Executive Branch, Fourteenth Amendment 70 Comments

A threepeat for the Emmy Awards!

David Kopel • August 1, 2011 2:41 pm

The annual "time machine" episode of Colorado Inside-Out garners a threepeat, winning the best documentary award for the third year in a row, from the Heartland Chapter of the National Academy of Television Arts & Sciences. This year's win is also a Triple Crown, with Emmy awards for best sound, and best program. Watch the triple-triple award-winning 1935 episode of CIO (produced in 2010), including Kopel as law professor Israel Ben Koplowitz, a Democratic supporter of Al Smith who is skeptical of FDR. Some other episodes: 1951 (produced in 2011), 1959 episode (Emmy winner, produced in 2009), 1858 episode (Emmy winner, produced in 2008).

Categories: History No Comments

Blegs: Polling on Guns and Israel. The disarmament of the Welsh.

David Kopel • July 14, 2011 5:21 pm

1. Does anyone know of any polling data which has data on whether Americans who have favorable, or strongly favorable, views of Israel are more likely to support Second Amendment rights, own guns, etc.? I suspect that this is case for non-Jewish Americans. Even for American Jews (who tend to support Israel, and to favor gun control) it would not surprise me if Jewish gun-owners are more pro-Israel than non-owners.

Please supply data, and feel free to comment on data that has been supplied by other commenters. But don't use the comments just to speculate.

2. From Edmund Burke's Mar. 22, 1775, speech to Parliament:

Sir, during that state of things, Parliament was not idle. They attempted to subdue the fierce spirit of the Welsh by all sorts of rigorous laws. They prohibited by statute the sending all sorts of arms into Wales, as you prohibit by proclamation (with something more of doubt on the legality) the sending arms to America. They disarmed the Welsh by statute, as you attempted, (but still with more question on the legality) to disarm New England by an instruction. They made an Act to drag offenders from Wales into England for trial, as you have done (but with more hardship) with regard to America.

Does anyone know of good sources discussing the attempted disarmament of the Welsh, and whether it was successful?

Commenters: please stay on topic.

Categories: Uncategorized 29 Comments

Cert. grant in Millender v. LA: Qualified immunity for an unconstitutional general warrant to seize firearms?

David Kopel • July 10, 2011 6:00 pm

The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen's 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 years ago. (The girlfriend suggested to the police that Bowen might be hiding there.) The warrant authorizes the seizure of all firearms on the premises, not merely the particular gun which had been used in the crime against the girlfriend.

The police executed a 5 a.m. dynamic entry, and in the course of their search, seize a firearm which is lawfully owned by the 73-year-old woman, Augusta Millender. She sues, and the 9th Circuit en banc rules that the warrant was objectively unconstitutional. The officer who procured the warrant (and Los Angeles, by respondeat superior) are not entitled to qualified immunity, because the warrant to seize all firearms was so clearly unconstitutional, based on settled law.

In the certiorari grant, the Questions Presented are:

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344–45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

The phrasing of the Questions Presented further suggest that attorneys for Respondents have an uphill battle. The Supreme Court docket page is here; the full history of the case in the district court and the Ninth Circuit, with full text of many of the relevant documents, is available at the website of California attorney Chuck Michel. Michel is, in my opinion, one of the top two firearms law lawyers in California, the other being Don Kilmer.

In conjunction with Stephen Halbrook, Michel filed an amicus brief in Millender, on behalf of the National Rifle Association and the California Rifle and Pistol Association Foundation. The brief explains how the Fourth Amendment's prohibition on general warrants is closely entwined with the right to arms; for example, the 1662 gun ban of the wicked Stuart king Charles II was enforced by general warrants.

The Questions Presented seem to presume the unconstitutionality of the general warrant, with the only issue before the Court being qualified immunity. The Halbrook/Michel argument on qualified immunity points out that

Detective Messerschmidt knew that the only firearm involved in the crime was a black, pistol-gripped, short barreled shotgun. He nonetheless drafted a general warrant authorizing search and seizure of all firearms and firearm parts from the home of an elderly woman, her daughter, and her grandson, knowing that the suspect (Bowen) did not even live in that home. Messerschmidt cannot now rely on the defense that he persuaded others up the chain to approve his general warrant.

...

It bears repeating that the affidavit failed to disclose that the residence was that of an elderly lady and her relatives, not that of the suspect.

Although Los Angeles argues that the unconstitutionality of the warrant was not clearly established at the time the warrant was executed, Halbrook and Michel point to:

Groh v. Ramirez, 540 U.S. 551 (2004), aff'g Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9th Cir. 2002), involved a general warrant obtained to search for unregistered firearms, but the warrant contained no list of firearms to seize. Id. at 554. A list of firearms was included in the affidavit, but not attached to the warrant. Id. Only lawful firearms were found. Id. at 555. The homeowners later filed a civil rights action for damages. Id. The Supreme Court upheld the Ninth Circuit's conclusion in Groh that the search was unlawful and that the agent who secured the warrant and led the search could not rely on the defense of qualified immunity. Id. at 563–566.

Moreover,

In Groh, the law was clearly established in the very text of the Fourth Amendment. Case law condemning general warrants in England dates back to at least 1765 in Entick, and in the United States, to 1886 in Boyd. The general warrant here–to search for all firearms and related items, when only a black, pistol-gripped, short-barreled shotgun was at issue, and it had little or no connection to the house to be searched–clearly violated the Fourth Amendment, would be known to do so by any competent officer, and was not sanctified by being rubber stamped by higher ups.

Michel has announced that NRA and CRPAF will file an amicus brief in the Supreme Court, in part to explain to the Court the problem of law enforcement officers seizing large numbers of lawfully-possessed firearms in order to boost gun seizure statistics.

I hope that at some point Orin Kerr will be able to provide his insights on Millender.

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344–45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

Categories: Constitutional Law, Fourth Amendment, Guns, Qualified immunity, Sovereign immunity 93 Comments

Ezell's doctrinal rules for the Second Amendment

David Kopel • July 8, 2011 2:08 am

The Seventh Circuit's decision in Ezell v. Chicago is a tremendously important case for Second Amendment doctrine. The key rules from Ezell: use originalism from both 1791 and 1868 to determine if an activity is within the scope of the Second Amendment right. If it is, apply First Amendment doctrine, and make the standard of review more stringent when the activity is closer to the core of the right, and when the government is prohibiting rather than regulating. Generally speaking, when looking for guidance, look to Eugene Volokh.

As the above rules apply to the case at bar: The right to practice with firearms is an important ancillary to the core of the Second Amendment right, so Chicago's ban on firing ranges is subject to not-quite-strict scrutiny.

Here's how the Ezell court set forth the above standards.

The Second Amendment is like the First Amendment, in that a temporary deprivation of the right may constitute irreparable harm:

[F]or some kinds of constitutional violations, irreparable harm is presumed. See 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE sect. 2948.1 (2d ed. 1995) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary."). This is particularly true in First Amendment claims. See, e.g., Christian Legal Soc'y, 453 F.3d at 867 ("[V]iolations of First Amendment rights are presumed to constitute irreparable injuries . . . ." (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). The loss of a First Amendment right is frequently presumed to cause irreparable harm based on "the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future." Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment's central component is the right to possess firearms for protection. 554 U.S. at 592–95. Infringements of this right cannot be compensated by damages.

When a law is "alleged to infringe Second Amendment rights," there is a two-step inquiry, beginning with the question "Is the restricted activity protected by the Second Amendment in the first place? See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1449."

To answer the first question, look to original meaning from both 1791 and 1868:

The answer requires a textual and historical inquiry into original meaning. Heller, 554 U.S. at 63435 ("Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."); McDonald, 130 S. Ct. at 3047 ("[T]he scope of the Second Amendment right" is determined by textual and historical inquiry, not interest-balancing.). McDonald confirms that when state– or local-government action is challenged, the focus of the original-meaning inquiry is carried forward in time; the Second Amendment's scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified. See McDonald, 130 S. Ct. at 3038–42.

Courts should follow the Supreme Court's lead and treat "original public meaning as both a starting point and an important constraint on the analysis. See Heller, 554 U.S. at 610–19; McDonald, 130 S. Ct. at 3038–42. " [fn. 11].

Footnote 11 offers some examples of what the court apparently sees as the generally correct approach to the original public meaning inquiry:

11 On this aspect of originalist interpretive method as applied to the Second Amendment, see generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215–30, 257–67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L & POL. 273, 285–87 (2011); Josh Blackmun [sic, Blackman] & Ilya Shapiro, 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, 8 GEO. J.L. & PUB. POL'Y 1, 51–57 (2010); Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, "This Right Is Not Allowed by Governments That Are Afraid of the People": The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824–25 (2010); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 11–17, 50–54 (2008); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 266–70 (2004); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal Liberty, and "The Constitutional Right to Bear Arms": Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995).

If the plaintiffs lose on the "scope" question, then the case is over and the government wins. If the alleged law does apply to something within the scope of the Second Amendment right, the court must apply judicial review. "[T]he rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right. See generally, Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1454–72 (explaining the scope, burden, and danger-reduction justifications for firearm regulations post: Heller); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1372–75 (2009); Adam Winkler, Heller's Catch-22, 56 UCLA L. REV. 1551, 1571–73 (2009); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 979–80 (2009); Glenn H. Reynolds & Brannon P. Denning, Heller's Future in the Lower Courts, 102 NW. U. L. REV. 2035, 2042–44 (2008)."

The right to arms includes the right to practice with arms: "The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn't mean much without the training and practice that make it effective. The Ezell court pointed to the Supreme Court having "quoted at length from the ‘massively popular 1868 Treatise on Constitutional Limitations' by judge and professor Thomas Cooley: ‘[T]o bear arms implies something more than the mere keeping; it implies the learning to handle and use them . . . ; it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order'." In addition, "‘No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right.' (quoting BENJAMIN VAUGHAN ABBOTT, JUDGE AND JURY: A POPULAR EXPLANATION OF THE LEADING TOPICS IN THE LAW OF THE LAND 333 (1880))."

So what exactly is the standard of review?

"The City urges us to import the ‘undue burden' test from the Court's abortion cases...but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n.4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1449, 1452, 1454–55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. at 1376; Winkler, Heller's Catch-22, 56 UCLA L. REV. at 1572.

So "we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government's means and its end." This amounts to what the court calls "not quite ‘strict scrutiny.'" Or it could be called strict scrutiny light. A "an extremely strongly" state interest, rather than a "compelling one"; and "a close fit" rather than "narrowly tailored."

For "laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right." The Ezell court does not elaborate the doctrine for deciding lesser cases, because the instant case involves a prohibition very close to the core.

The "plaintiffs are the ‘law-abiding, responsible citizens' whose Second Amendment rights are entitled to full solicitude under Heller . . .The City's firing-range ban is not merely regulatory; it prohibits the ‘law-abiding, responsible citizens' of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense."

In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist "What part of ‘shall not be infringed' don't you understand?'" Nor is the standard "reasonableness" as a euphemism for "rational basis so long as all guns are not banned"; nor the weak "undue burden" standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call "living constitutionalism."

 

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