Category Archives: Constitutional Law

Total failure to even identify a valid objective

Alan Gura and company have a new brief in the ongoing Ezell case in which Chicago required range training to get a gun license and then banned ranges.

Chicago’s arguments are so idiotic and insulting that it’s going to be a pretty open-and-shut case. There are so many money quotes that you really have to read it, but here’s one of my favorites (emphasis added):

Scudiero testified that she has never been to a gun range, has never read or studied any literature about gun ranges, has no experience or education with either the structure or operation of gun ranges, and has never investigated gun ranges for zoning purposes. App. 95, 104.


Nonetheless, the lower court allowed Scudiero to testify as to what she “imagine[s]” happens at a gun range. App. 96-97. Based on this imagination, Scudiero opined that gun ranges should be zoned as an “intense” use, similar to taverns, rock crushing facilities, salvage yards, incinerators, drive-through facilities, and adult establishments. Specifically, Scudiero opined gun ranges belong in manufacturing districts, but even then, only on a case-by-case special use basis. App. 98-101. However, Scudiero had no knowledge of whether gun ranges emit noise or emissions of any kind. App. 105-06.

And another great one:

The end result in this case would be the same under either strict or intermediate scrutiny, which requires that there be a “strong showing” that the regulation is “substantially related to an important governmental objective.” Skoien, 614 F.3d at 641 (citations omitted). Often times, as in Skoien, Yancey, or Williams, the governmental objective in gun regulation is not elusive, leaving courts to struggle with difficult questions of balancing and breadth. What makes this an unusually clear Second Amendment case is the government’s total failure to even identify a valid objective. Defendant’s attorney advised the City Council that it could do whatever it believed to be “reasonable” regarding gun ranges, and so the City Council simply banned ranges.

One more zinger:

Also unavailing is the claim that ranges can be banned because regulating them would overburden Defendant. Perhaps the people should be thankful Chicago does not find the “need” to regulate bookstores and churches too burdensome. The court below did not quite rely upon this argument, ruling only that the absence of regulation rendered it unsafe to enjoin the ban. It nonetheless merits mention that a “right” entitles individuals to do something, and is not dependent on the graces of the government. The notion that the government may ban outright whatever it finds too difficult to regulate is not a constitutional doctrine. If gun ranges are constitutionally protected, Defendant’s wholly optional regulatory costs are irrelevant. People do not lose their rights because the government decides it is too expensive to regulate or otherwise accommodate them.


Reporting from the 25th annual Gun Rights Policy Conference

I just got back from the panels of the 25th annual Gun Rights Policy Conference, and let me tell you, I sure am jazzed. I arrived early in the morning and was greeted by a handsome M1 Garand being raffled off by the Golden State Second Amendment Council (who I really need to join):


Needless to say, I entered the drawing!

The conference started off with Alan Gottlieb and his wife Julianne discussing the importance of unity among pro-rights groups and of not sitting on our laurels just because we have two major SCOTUS victories. I heartily agree.

One pleasant surprise was that each attendee was given a ton of books, all for free! Among them are Paxton Quigley’s Armed and Female, John Lott’s Straight Shooting, and Alan Gottlieb’s America Fights Back. These are not works of fluff published by nobodies.

John Lott.jpg

John Lott himself (right) was present in fact, and he was there trumpeting his groundbreaking work in criminology to statistically disprove anti-rights myths over and over again. His speech was a bit dry, but he’s an economist so I can’t blame him too much, and besides, it was very informative!

Among the more bombastic speakers was Jim Wallace, a lobbyist with the unenviable task of promoting firearms and freedom to the Massachusetts state legislature. He told a hilarious story of how he cowed the legislature by asking them to indicate how many of them thought that only the government should have firearms (most did) and then asking them what they thought of the at-the-time-in-power Bush administration (it was not polite). This delighted me because I’ve used this trick on liberal friends and family before and heads always explode!

In fact, back before I was a guns and freedom activist, my extremely liberal father once confided in me that he was considering getting a gun out of fear of government thugs enforcing the PATRIOT act against him and his extremely liberal publications. At the time I was shocked and appalled but in retrospect I’m terribly proud of his momentary breaking out of the anti-gun state-is-god box and I wish I had been in a position to help him along rather than disapprove.

I regrettably forgot to snap a photo of Mr. Wallace. Maybe that tells you a little bit about how enthralled I was by his speech!

Alan Gura was of course awesome:

Sorry for the shakycam effect. After I shot these videos I realized that a more stable platform was needed so I cut some stickers up into strips and used them to secure my iPhone to a pile of books. It worked like a charm!

Eugene Volokh.jpg

Eugene Volokh (left) spoke as well and I was really excited to see him, being a big fan of his blog The Volokh Conspiracy. Mr. Volokh ended up being a voice of reason but was therefore hardly telling us what we wanted to hear! His primary argument was that the second amendment will be treated like other amendments — that is to say, it will be found to be a good deal less absolute and off-limits than we would prefer. He pointed out the wide variety of permissible restrictions on such rights as the right to protest and speak, and suggested that even a licensing scheme could be constitutional given its legal acceptance in protests.

Volokh sort of ended up playing the part of the wet blanket. Much to the palpable disappointment of the audience, he included assault weapons bans in the list of likely constitutional gun laws, his reasoning being that banning them would not be found to substantially burden the core right of self-defense provided that other suitable weapons were still available.

Calguns’ Gene Hoffman, however, strenuously disagreed a few hours later, bringing up the excellent example of self-defense against mountain lions, pointing out that California police departments use AR-15s to dispatch such animals when they show up in cities, and that ranchers and other rural folks often encounter four-legged predators against which handguns would be poor choices. These seemed like very strong arguments to me, and I also think that Scalia’s “in common use” language would come into effect as well; in California at least there are over 500,000 bullet button-equipped ARs and AKs. I’m proud to have increased that number by one.

There’s just something about Gene Hoffman that makes you want to follow him. He has a natural leader’s personality and he’s unbelievably eloquent. Here, have a listen:

Don Kilmer also spoke a bit about some of his cases, like the now-famous Nordyke case in which Mr Kilmer was technically the first lawyer ever to have the second amendment incorporated against the states!

Finally, Alan Gura spoke again.

Then there was a free-form discussion. Kilmer, Hoffman, and Gura talked a lot about spurious arrests for possession of bullet button-equipped ARs in California (hint: if it happens to you shut up and call Calguns at 800-556-2109) and other immediate and near-future issues. I couldn’t help but feel optimistic.

I was super-excited to see Massad Ayoob. Back when I was just dipping my toes into the pro-gun waters, his books and articles guided me along. I fondly remember reading In The Gravest Extreme on a bus ride in New England three years ago and feeling the cogs turning in my head as he methodically explained things that made too much sense to deny.

Also, he has an awesome voice.

One slightly unsettling undercurrent I noticed was the pervasive sniping at the NRA. Everyone was mad that they folded on the DISCLOSE act. Gura was pissed that they’ve been trying to take credit for his victories and was actually quite passive-aggressive about it. Smaller organizations like GOA were generally miffed that the NRA wasn’t absolutist enough. And one guy was steamed that they didn’t endorse Libertarians, leading to by far the most awkward moment of the day when he presented this to Bob Barr—who is an NRA board member—and got a good 15 seconds of tense silence as a result.

Given that Alan Gottlieb and his wife Julianne introduced the conference with a plea for unity and cooperation among pro-rights groups, it was somewhat disappointing. I would really have liked to see more solidarity, especially considering that the NRA has done 100 times more than most of the complainants (I’m looking at you, GOA!). We should rally around our power players, not snap at their heels for being more important and influential than we are.

There were a ton more people who were all great in their own ways. Hearing Michael Boldin the tenth amendment guy ask us if we had as much courage as the pot smokers in California who are actively disobeying federal law en masse was something I don’t think I’ll ever forget, and Nikki Stallard’s impassioned defense of gays’ right to defense was really something to behold.

It was a wonderful set of panels. After 10 hours, I felt rejuvenated! It’s great to be surrounded by fellow freedom-lovers, and I really think we have dream teams working all throughout the country to attack statist nonsense on too many fronts to count.

BradyWatch: Ban it all I say!

Ever since I’ve gotten involved in the movement, I’ve believed that gun rights is an excellent Libertarian litmus test. Not a Democratic or Republican one, mind you, because you can find plenty of folks from both political parties who like guns. No, I’m talking about statism vs liberty. Because the only real way to restrict guns is to embark down a dark path that treads dangerously close to permitting government restriction of anything at all.

The Brady Campaign’s Dennis Henigan illustrates this perfectly. He’s calm and measured, but under that mask lurks a dangerous seed of reverence for absolute government power. Don’t believe me? Read it straight from the horse’s mouth.

Defending our Constitution means defending its specific grant of power to Congress to “regulate Commerce . . . among the several states” and to “make all Laws which shall be necessary and proper” for executing that power. It also means defending the Constitution’s Supremacy Clause, by which federal law “shall be the supreme Law of the Land . . . .” Can there be any more direct expression of contempt for the Supremacy Clause than the premise of the “Firearms Freedom” statutes that individual states have the authority to determine for themselves the extent of federal power?


There is little doubt that the federal courts will make mincemeat of these “Firearms Freedom” laws. The first ruling came down last week, as a federal magistrate judge in Montana struck down that state’s law. Agreeing with the Brady Center’s brief, the judge found the law flatly unconstitutional under decades-old Supreme Court precedent recognizing federal authority to regulate entirely intrastate activity if exempting that activity would undercut federal regulation of interstate activity. As recently as 2005, a conservative majority of the Supreme Court reaffirmed this precedent by recognizing federal power to prohibit the purely local production and medical use of marijuana authorized by state law.

Observe the approval with which he notes that the federal government has used its power to render unlawful the growing and medical consumption of marijuana — acts that are neither interstate nor commercial.

Dennis Henigan is the type of man who, should he succeed in eliminating guns, will go after knives. And toy guns. And bludgeons. And who knows, maybe violent movies next. Perhaps alcohol after that. We already know he’s okay with the federal government having the power to ban anything it wishes, so who knows what’s next?

What a scary man.

The most principled Justice of them all

Reason has the skinny on Justice Thomas’ inspired endorsement of civil rights and self defense.

Musings on Stevens’McDonald dissent

In the recently-decided McDonald v. Chicago, Justice Scalia wrote his own opinion specifically to refute Stevens’, and he does a far better and more convincing job than I ever could (seeing as he’s, you know, a Supreme Court Justice and all). Still, here’s my shot at it:

First of all, Stevens’ basic point is that firearms require balancing out the costs with the benefits:

Hence, in evaluating an asserted right to be free from
particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day—assuming the handgun’s marginal contribution to self-defense outweighs its marginal contribution to the risk of accident, suicide, and criminal mischief—it may make you and the community you live in less safe overall, owing to the increased number of hand­guns in circulation. It is at least reasonable for a democratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare.

It may seem like Stevens is arguing against legal gun ownership, but if you read carefully, it’s not too hard to see the danger of his words to all civil rights. For if it is “at least reasonable for a democratically elected legislature to take such concerns into account” when it comes to guns, why could the same not be done for, say, books? Why not criminal justice, and allow legislatures to override Miranda protections if a democratic majority wills it? Would it be appropriate for a democratic majority to be able to entirely prohibit abortion or criminalize homosexuality?

Stevens’ arguments would indicate so, and he walks a dangerous line by placing such faith in majorities. these arguments in favor of pure majoritarian rule are just as applicable to other civil rights currently rendered off-limits to legislative tampering.

But wait, it gets better:

…it is a foundational premise of modern government that the State holds a monopoly on legitimate violence…


The power a man has in the state of nature “of doing whatsoever he thought fit for the preservation of himself and the rest of mankind, he gives up,” to a significant extent, “to be regulated by laws made by the society.”


I have found [no court case] that holds, states, or even suggests that the term “liberty” encompasses either the common-law right of self-defense or a right to keep and bear arms…

Did you catch that? Stevens argues that the right to preserve one’s own life from attack is not a component of liberty. Apparently, the government could ban self-defense without infringing on freedom, because it “holds a monopoly on legitimate violence”. According to Justice Stevens, someone could try to murder you, and if you fight back, it’s not unreasonable that you could be thrown in jail, because your use of violence to repel the attack was “illegitimate.” This is scary stuff.

Nevertheless, it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for self-defense, even if they are imper­fect substitutes, and neither petitioners nor their amici make such a contention.

So handguns can be banned because they’re not “critical to leading a life of autonomy, dignity, or political equality”, or because poorer substitutes exist? Hmm, what other rights can we apply this to? I know! Gandhi’s autobiography The Story of My Experiments With Truth can be banned because Danielle Steele novels are still available! Abortion can be banned because one can live a life of autonomy, dignity, or political equality without ever having one!

Does Stevens really want to go down this rabbit hole? He eventually does explain why his logic should be specially applied to firearms and firearms alone:

Similarly, it is undeniable that some may take profound offense at a remark made by the soapbox speaker, the practices of another religion, or a gay couple’s choice to have intimate relations. But that offense is moral, psycho­logical, or theological in nature; the actions taken by the rights-bearers do not actually threaten the physical safety of any other person.

Stevens is concerning himself only with the direct effects of the misuse of rights, and hand-waving away the indirect effects of their exercise. For example, while it is true that by exercising his Miranda right to remain silent, a criminal is directly hurting nobody, should his confession be thrown out on Miranda grounds, that very much subtracts from public safety. Letting a dangerous person go free to prowl the street, for whatever reason, is a tangible endangerment of the community, and one that Stevens apparently thinks is an acceptable price to pay for the right itself.

Moreover, what constitutional provision informs Stevens’ reasoning here? Where is it laid out that a specific enumerated constitutional right can be treated differently from the rest solely because its misuse can result in death rather than merely moral or spiritual offense? We’re not talking about a random law enacted by a rogue legislature here, we’re talking about the second freaking amendment in the Bill of Rights!

Continuing on, we encounter this gem:

Fifth, although it may be true that Americans’ interest in firearm possession and state-law recognition of that interest are “deeply rooted” in some important senses, ante, at 19 (internal quotation marks omitted), it is equally true that the States have a long and unbroken history of regulating firearms.

Did you catch that? Apparently, a “long and unbroken history” of restricting a right can itself be the justification for its indefinite continuity. I bet the Southern states would have really liked this idea 150 years ago! Can you imagine their glee upon learning that their “long and unbroken history” of repressing blacks was a permissible counterbalance to blacks’ “deeply rooted” interest in being free from government-backed repression?

Stevens hammers the point home in a footnote:

I agree with JUSTICE SCALIA that a history of regulation hardly proves a right is not “of fundamental character.” Ante, at 12. An unbroken history of extremely intensive, carefully considered regulation does, however, tend to suggest that it is not.

Again we see his opinion that a government can destroy the “fundamental character” of a right through “an unbroken history of extremely intensive, carefully considered regulation.” It’s almost unreal.

So long as the regulatory measures they have chosen are not “arbitrary, capricious, or unreasonable,” we should be allowing [states and localities] to “try novel social and economic” policies.

I guess Stevens never heard of the Chicago Alderman who forgot to re-register his guns (which, according to Chicago law, makes them permanently un-registrable and therefore felonious to possess) and promptly passed a one-month registration amnesty that curiously happened to allow him to re-register them. Nope, nothing arbitrary, capricious, or unreasonable about any of that!

…the elected branches have shown themselves to be perfectly capable of safeguarding the interest in keeping and bearing arms.

Sooooo… then why was Otis McDonald suing the city of Chicago for denying him the right to purchase and own a handgun? Apparently in Stevens’ world, “banning” can be a legitimate form of “safeguarding.”

The strength of a liberty claim must be assessed in con­nection with its status in the democratic process. And in this case, no one disputes “that opponents of [gun] control have considerable political power and do not seem to be at a systematic disadvantage in the democratic process,” or that “the widespread commitment to an individual right to own guns . . . operates as a safeguard against excessive or unjustified gun control laws.”

I see. So then, because we have the ACLU, couldn’t we safely do away with the First Amendment? After all, it sure seems that lovers of free speech “have considerable political power and do not seem to be at a systematic disadvantage in the democratic process.” I also see that “the widespread commitment to an individual right to” free expression is alive and healthy. Under this standard of review, the rights most respected and exercised by the public at large deserve the least judicial protection from legislative infringement. Now that’s some enlightened constitutional law for you!

In making these spirited arguments against guns, Stevens seems almost unaware that his broad endorsements of government authority and majoritarian rule severely endanger the remaining rights and liberties he does seem to like. This unsettling contradiction unfortunately never seems to dawn on him. If I didn’t know it any better, I would think that the writer of this dissent believed in almost no constitutionally-protected personal liberty at all.

Stevens, exposed

In reading (ex-) Justice Stevens’ dissent in McDonald, I found myself almost dumbfounded by a particular passage. In a footnote on page 43 of his opinion, Stevens casually mentions the following:

In my view, the Court badly misconstrued the Second Amendment in linking it to the value of personal self-defense above and beyond the functioning of the state militias; as enacted, the Second Amendment was concerned with tyrants and invaders, and paradigmatically with the federal military, not with criminals and intruders.

(Emphasis mine)

And yet, in spite of his opinion — here recorded in writing for the ages (search for “tyranny”) — that the Second Amendment was intended to preserve access to arms in case of domestic tyranny, Stevens votes to allow the same governments he admits the framers were concerned with turning tyrannical to ban them. That says it all, really.

Alan Gura, I love you

Alan Gura, on the subject of his latest victory:

The Second Amendment is itself a reasonable, common-sense gun law – it provides powerful security for a fundamental individual right. Governments contemplating gun regulations out of legitimate concern for public safety may occasionally be reminded of their limits by courts, but good faith actors should find today’s decision no more troubling than any other precedent effectuating basic constitutional limitations. On the other hand, politicians approaching gun regulation as a means of continuing their disagreement with the Constitution’s enumerated policy choice on the subject will discover that doing so carries a price taxpayers do not wish to spend – and ultimately achieves nothing.