ABCB: The Blog

Sorry for the delay in reporting this, but on November 28, the Supreme Court officially turned down hearing Masciandaro vs U.S. and Chein vs California.  This will mean that, most likely, we will have to wait until the 2012 term (which begins in fall of next year) before they might schedule any more 2nd amendment cases.

We can only hope that a strong 2nd amendment case is up for appeal to the Supreme Court the next go-around.  By that I mean one where the plaintiff is disadvantaged and sympathetic in some way, and has not committed any other crimes.

The link to the order denying cert can be found here.

Just a brief update on the 2 remaining cases that the Supreme Court could consider this term.  The two cases are Chein vs. California and Masciandaro vs. US.

In, Chein vs. California, Dr. Chein, a person who has had no prior criminal record, was found guilty of misdemeanor vandalism for using a knife to deflate the tires of a car which had repeatedly trespassed on his property, after which he called the authorities.  As part of the terms of his probation, the court ordered that he banned from the possession of firearms without conducting *any* scrutiny as to whether such an order is constitutional.  The California court of appeals upheld the order, and it is now before the Supreme Court to see if they wish to hear the case.

In Masciandaro vs. US, a person who was sleeping in his car had in his possession a firearm while the car was parked at a National Park.  This conviction was upheld on the basis that he was convicted before the laws regarding firearms at National Parks changed, and that the law is constitutional.  His appeal is based on the constitutionality of the law as it was when he was convicted.

Chein vs. California, in my opinion, is the stronger case, and one which would provide a clearer response as to the level of scrutiny that should be used in general regarding possession of firearms.  Masciandaro, however, has more potential to set precedent for firearm carry outside the home.

The two cases is on the list for consideration at the November 22 conference, this coming Tuesday.  After the conference, we should hopefully have an answer as to whether the Supreme Court will grant cert to one or both cases and hear them this term.

Here are the cases for consideration at the November 22 conference.

The first case this session that the U.S. Supreme Court had the opportunity to consider was Williams vs Maryland.  In this case, the facts that have been stipulated was that the defendant, Williams, purchased a handgun and was walking and carrying a loaded Glock handgun in his backpack when a police officer turned his cruiser around to have a conversation with him.  As he was turning his cruiser around, he observed Williams hiding the something in the nearby bushes.  When questioned, Williams admitted that he had hidden “his handgun” in the bushes.

In Maryland, it is a crime to carry a loaded firearm outside the home without a concealed handgun permit, which Williams did not have.  He was arrested and convicted for that crime, and sentenced to 3 years in prison.  The case was appealed on 2nd amendment grounds.

Williams lost on appeal because the court originally concluded that the 2nd amendment didn’t apply to states.  When asked to reconsider the case after the Supreme Court declared the 2nd amendment does apply to the states in McDonald vs Chicago, they ruled against Williams on the basis that if the Supreme Court wanted the 2nd amendment to protect the right to carry outside the home, “it must do so more plainly.”

Today, the Supreme Court released an order list where it granted or denied Certiorari (judicial review) to a large number of cases.  Among the cases where Certiorari was denied without comment was Williams vs Maryland.  This means another case will have to reach conference before it will have chance to go before the Supreme Court.

This case was not an ideal case for gun rights advocates to go before the Supreme Court.  First, it was asking for a blanket right to carry without a permit, and the Supreme Court was unlikely to make such a bold change.  Second, it was a case based on a criminal appeal.  Those cases always look a bit sketchy because a criminal who violated the law is asking for his conviction to be tossed out, as opposed to someone suing the government because their rights are being infringed, which I believe can be presented with a more compelling argument.  It’s hard to claim that those of us who carry guns are “law-abiding citizens” when the person sitting in the courtroom is a convicted criminal.

However, this case wasn’t a terrible case for us either.  The defendant was not charged for any other crime other than the possession of a loaded firearm.  It wasn’t as if the man was challenging his conviction of carrying a gun while robbing a liquor store.  The State of Maryland was also thumbing their nose at the Supreme Court, and that likely would’ve helped the case.

Either way, we’ll have to wait til next time to see if the Supreme Court will finally consider a case clarifying the judicial limits of the 2nd amendment.

The order list denying Certiorari can be found here.

After D.C. vs Heller, which recognized that the 2nd amendment applied to individuals, and McDonald vs Chicago, which incorporated the 2nd amendment to the states, the Supreme Court has yet to give further direction as to the limits of the 2nd amendment.

Some courts, such as the U.S. 7th Circuit in Ezell vs Chicago, have stated that gun control laws could be subject to “almost strict scrutiny” if a law places restricts on the core rights guaranteed by the 2nd amendment.  For a law to be constitutional under strict scrutiny, a law must satisfy 3 tests.  First, it must be justified by a compelling government interest.  Second, it must be narrowly tailored to achieve that goal.  Finally, it must use the least restrictive means of achieving that goal.  Strict scrutiny is the highest standard of review of laws, and if the 2nd amendment were applied with strict scrutiny, the vast majority of gun control laws in the country would be on the chopping block.

Other courts, such as the high court of Maryland in Williams vs Maryland, has gone as far as to rule that the 2nd amendment does not apply to the carrying of firearms outside of the home and that if the Supreme Court disagrees, “it must state so more plainly.”  Many other court decisions have fallen somewhere in between these two extremes.

The Supreme Court starts hearing cases for the next term on October 3rd, and so far not a single 2nd amendment related case is on the docket for this term.  However, the split among the various districts over the 2nd amendment has not been overlooked by the Supreme Court.  The court had been scheduled to consider 3 cases regarding the 2nd amendment this past Monday, but they court has asked for further filings in all 3 cases, so they are apparently not ready yet to be put before the court.

When those cases are ready, we can be sure the Supreme Court will take up one or more of these cases.  At this point, the earliest this could be expected to happen is early 2012.  However, more likely, none of those cases will be ready for consideration until the Fall 2012 term.

I read an article this morning that reminded me of something I needed to write about.  Dr. Suzanna Hupp brings this point up in her speeches on this subject, but I feel the need to reiterate and add to her message.

States like California, Hawaii, New York, and New Jersey are “May Issue” states.  What this means is that some government agency, usually the local Sheriff or police Chief, has discretion over the issue of permits to carry a firearm.

Gun control proponents suggest that this is “common sense,” that law enforcement should have authority over who has gun permits.  They say that the law enforcement agency is the best judge of who is qualified to carry a weapon.

Most May Issue laws were created in the Jim Crow era.  They were a method of allowing law enforcement to deny permits to minorities while still allowing white people to carry guns.  The fact that were created under that premise should be a red flag as to the dangers of such laws being in place.

Even today. the problem with these laws are that they are based on a lie.  It incorrectly assumes that the law enforcement agency actually cares about whether that person is qualified.  Instead, the reality is that Sheriff or Police chief will often simply pass on their views on gun control.  This is especially true for Sheriff’s in liberal communities, as Sheriff’s are generally elected.

Most May Issue States are essentially bans on carry permits, except to those who are rich or well-connected.  Alabama is the only exception to this.  They are the only May Issue state which regularly issues licenses without prejudice or racial bias.

That’s right, I said racial bias.  Because the reality of situation is that rural, more conservative communities, have pro-gun sheriff’s, and most people know each other, so getting a permit in those areas is easy.  Rural residents in states like California or New York will attest to this.  Anyone without a criminal record can get one in those areas.  Once you move into urban areas though, such as New York City or Los Angeles, the issue of firearm carry permits is essentially non-existent unless you are wealthy, a politician, or a celebrity.  This means the poorer families, the ones often living across the street from a crack house, are the ones that cannot defend themselves.  Ironically, they are the ones that need protection the most.

So, what does this mean?  Living in rural, predominately white areas means you can get a gun permit.  Living in urban, predominately minority areas means you cannot get a gun permit.  If you look at the ratio of gun permits issued to minorities versus the demographics of the state of New York versus a state like Georgia, you’re going to find that New York discriminates heavily against minorities in the issue of carry permits.

As California and New York are liberal states, generally speaking, I am surprised that they aren’t embarrassed that Alabama is leading the way in racial equality.  Would these same people be OK if the Sheriff got to decide who could vote, or who could speak publicly?  How can we allow those in power to arbitrarily decide who can and cannot defend the lives of themselves and those that they love?

Freedom of choice.  It is one of the principles of liberalism.  However, you bring it up in the context of guns, and gun control proponents will suddenly start giving you the run around.

I have heard the following statement more times than I can count, “I have a right to not be around people who carry guns.”

It’s a simple formula.  Bans are bad.  Rights are good.  Bans suggest that you’re taking the freedoms away from someone.  Rights suggest you’re asserting a choice.  You can’t say “I want to ban guns.”  You have to promote a freedom, a choice, even if it is an illusion.  So, instead, you state, “I have a right not to be around people with guns.”

Nobody who wanted to ban a book ever phrased it as “I want to ban books.”  Censorship is bad, after all.  It was always rephrased to “We have a right not to have offensive books in our libraries.”  Suddenly, it’s not a ban, it’s about rights.  Rights are good, let’s do it!

There is nothing in our Constitution or our laws that say you have a right to not be offended, by books, guns, or anything else.  Are you offended by the sight of a Glock pistol?  Great, don’t buy one.  Do you find Lady Chatterley’s Lover obscene?  Wonderful, don’t read it.  Are you repulsed by the idea of gay marriage?  Okay, don’t marry someone of the same sex.  You have the right to hold whatever belief you want.  However, the moment you start creating restrictions on others who hold that belief, your position is not about rights or freedom, but rather about control.

Gun rights advocates are not claiming everyone should be forced to get a gun.  We advocate the right to choose to carry one.  It is the pro-choice position, and gun control proponents need to be reminded of that.