Tag Archive for 'firearm'

Federal District Court in Maryland Rules State’s Gun Control Law Unconstitutional

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It looks like gun nuts and Second Amendment proponents alike have potentially just found a new home to roost their Glocks.

Yes, I know the link I just provided was to a very long and seemingly boring Maryland federal district court opinion.  But don’t worry, you don’t have to read it because I’ll provide the “bullet” points (ba-dum-bum) for you.  The opinion in Woollard v. Sheridan just came down the pipeline a few days ago and holds as unconstitutional a Maryland gun control statute.

You read that right gun huggers, unconstitutional; as in going against the highest law in our land.

However, what’s most interesting is that the gun restrictions in the Maryland statute itself aren’t all that different then the wording you’d find in the gun permit laws of other states.  Maryland allows the carrying of concealed weapons outside the home, but only if the carrier can show “good and substantial reason” to carry a gun.  The Maryland law in question generally restricts this to people who run businesses that have a high chance of being robbed, law enforcement, judicial officials, private security staff, and those that can show an “objectively heightened threat above and beyond personal anxiety.”

Sounds groovy, right?  However, it’s the last category that the federal district court had trouble with.  The court’s ruling essentially states that it’s unconstitutional for Maryland to require people to lay out a specific objective threat and instead should allow anyone with reasonable apprehension of their safety to carry a gun outside of their home for protection.

This is huge because it means that the federal district court in Maryland is going old school with their Second Amendment interpretation and, as many critics have pointed out, is in essence condoning the carrying of guns for plain old personal protection, ala Texas.  However, I should also note that this ruling has already been reserved for appeal, so who knows what the federal appellate court will say about its underling’s decision.

The federal district court’s ruling does bring up an interesting point on the current state of gun laws in America.  As it stands today, most states don’t allow the concealed or unconcealed carrying of guns in public.

Now I’m not a gun nut by any means, but I’ve never understood the reason why most governments are so against allowing concealed carry.  Yes, I’ve heard the arguments: increase gun violence, possibility of increase gun threats, and so forth.  But these reasons aren’t very compelling to me because the whole point of gun control laws is to prevent the unauthorized use of guns.  The ironic part however is that they don’t seem to do much to prevent those in society that we want to keep from using guns from actually using them.

By this I mean, career criminals, gang members, robbers, and every other person gun control laws are aiming to stop will nonetheless use and carry guns because, well, they’re criminals and they’re going to carry and use guns no matter what.  But this isn’t to say that all former convicts are forever convicts, but rather what I mean is that if someone is planning to commit a crime where the use of a gun is necessary, that person probably isn’t going to care that they’re also breaking a gun control law.

The fact of the matter is that gun control laws only end up harming those that really need protection the most.  Chances are a law abiding citizen isn’t going to be carrying a gun and thus becomes a potential target to wrongdoers since they’ll know that their victim won’t be able to fight back as effectively.  Gun control laws remove the ability for lawful citizens to utilize a power crime deterrent.  And aside from increasing the sentence of those criminals caught with a weapon in public, gun control laws don’t do much by way of protecting citizens.

Like I said before, I’m not a gun advocate in any sense of the word, but I think federal district court in Maryland made the right decision in this case.  Even though their ruling will most likely be struck down on appeal, hopefully their opinion will gain some traction and help put the issue of gun law reform back into the public’s attention.

It seems like there should be a much easier way to restrict gun usage from the more criminally inclined in society while also allowing private citizens a chance to still protect themselves.  Something as simple as a Megan’s law type gun restriction could be the answer.  I think by simply enacting a law prohibiting gun crime convicts from carry guns in public while allowing everyone else to do so is a good place to start.

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Does the Second Amendment Protect a Right to Carry Guns Outside The Home?

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In a move that provided a great excuse for authors of constitutional law textbooks to come out with a new edition (as if they needed one), the Supreme Court ruled a couple years ago that the Second Amendment to the Constitution confers an individual right to bear arms, ruling that laws which prohibit or severely restrict the possession of handguns in private residences are unconstitutional. Last year, the Supreme Court ruled that this right is incorporated against the states by the 14th Amendment, so the right applies nationwide (not just on federal property) and restricts state governments along with the federal government.

Both of those cases, however, left many, many questions unanswered. While the court in both cases gave a few guidelines on what types of restrictions on gun ownership and possession are constitutionally-permissible (for example, states can ban gun ownership by convicted felons, they can require background checks and registration, they can ban guns from government buildings, etc.). However, the court left many gaps which are presumably to be filled in subsequent cases, as the issues arise.

firearm supreme courtThe Supreme Court is now being given its first opportunity to answer one of the biggest unanswered questions it left in Heller and McDonald (the two cases mentioned earlier): does their ruling extend to the right to carry concealed weapons outside the home (in this case, in a car on a public highway)?

Many states already allow residents to carry a concealed weapon, with varying restrictions. Some states, known as “shall-issue” jurisdictions, will grant a license to carry a concealed weapon to anybody who requests one, unless there is a compelling reason not to (they are a convicted felon, under the legal age of majority, etc.). Other states, known as “may-issue” jurisdictions, allow people to apply for concealed-carry licenses, but will only grant them if the applicant shows that they have a very good reason for needing to carry a gun with them.

And in a few states, like Arizona, you can legally carry a concealed firearm without even having to apply for a permit.

Quite a few states, however, do not issue concealed-carry permits, and have altogether banned the carrying of concealed weapons outside the home.

So far, lower courts have consistently ruled that the Second Amendment, when read along with the Supreme Court’s recent opinions, does not confer a right to carry concealed weapons outside the home. However, before McDonald and Heller, lower courts were ruling, pretty consistently, that the Second Amendment doesn’t confer an individual right to keep guns in the home, and the Supreme Court overruled them on that point.

So, if the Supreme Court ends up granting cert, there’s a real chance that it could further extend the protections afforded by the Second Amendment. While there are federal laws that are meant to make it easier for people to transport lawful, registered firearms across state lines without running afoul of state laws (known as “peaceable journey” laws), many states have laws on the books that place severe restrictions on carrying guns outside the home, even if they’re in the trunk of a car where neither the driver nor any passengers have immediate access to them.

While I’m not sure how the Supreme Court should rule in this case, if it even takes it, it does seem that if it did find a limited right to carry a gun in one’s car, establishing a constitutional baseline, it would make transporting guns (for lawful purposes) across state lines much easier, and create far less hassle and uncertainty for law-abiding gun owners.

On the other hand, there is no question that guns, in the wrong hands, are dangerous. And while both sides of the gun control debate can cite volumes of studies showing that increased gun ownership increases or decreases violent crime (proving that the issue of gun control is probably far more complicated than either side of the debate makes it out to be), there are obvious concerns raised by the recognition of a constitutional right to carry guns in automobiles on public highways.

We all know that “road rage” is a problem, and it’s not hard to imagine somebody snapping and firing shots at other motorists when they perceive that they’ve been slighted. Obviously, this would not be a common occurrence, but it’s hard to argue that more guns on the road wouldn’t make this more common.

Also, the presence of a gun, even if it’s legal, in a car could trigger a misunderstanding with a police officer, possibly leading to an officer-involved shooting.

On the other hand, I recognize that people have a right to defend themselves, and that this right is relevant outside the home, as well as inside. I don’t pretend to have a perfect solution to the question of gun control, and I don’t expect the Supreme Court to have it, either. However, I’ve argued before that having a clear rule is, in many ways, more important than what the rule says. Legal uncertainty and ambiguity can be more paralyzing than clear prohibitions on certain types of conduct.

For example, in the U.S., cars drive on the right side of the road. In many other countries, they drive on the left side. One arrangement is no better than the other. What’s important is that a rule exists in the first place, to prevent head-on collisions.

Similarly, having a uniform, nationwide rule on the carrying of guns in private autos would also be helpful, reducing legal confusion.

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Gun Control (or lack thereof) Around the World

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Recently gun rights advocates got a huge power boost from the highest court in the United States. On Junes 28, 2010, the Supreme Court ruled explicitly that the Second Amendment, which guarantees “the right to bear arms,” applies to the states.

While this does make some legal issues clearer, this ruling has also opened a huge can of worms. The justices specifically avoiding declaring which kinds of state gun control laws would now be considered unconstitutional. This means that without any clear cut guidance, the majority of these laws will be challenged individually.

This got me thinking about the origins of gun control laws, and how other countries have dealt with the issue.  The basic premise of our right to bear arms was meant as a check on the power of the new sovereign state. The U.S. founding fathers believed they’d been oppressed and abused by their former sovereign state, and as such feared that even with all the safeguards they’d designed, their new state could eventually oppress their descendants. The second amendment was about freedom of the individual to resist the Tyranny of the Government.

And the rest of the world?  Each nation has a different history which has shaped their modern perspective on gun control.  A few highlights are below:

Mexico

Our neighbors to the south have a large problem with gun violence, but it is unlikely that their problems stem from their own official government policy.

Article 10 of the Mexican Constitution of 1857 granted Mexican citizens the right to arm themselves for security and legitimate defense. However by 1917 Mexico had a new constitution and a new Article 10, in which the types of guns regular citizens are allowed to own was more narrowly restricted. The Article states that if the weapon is designated for exclusive use by any branch of the military, the regular citizen is banned from using that weapon. It also stipulates that federal law can dictate conditions, requirements and places in which gun possession is allowed.

Legal, licensed, gun ownership is tightly regulated in Mexico. A Mexican citizen can purchase a gun for self-defense or hunting only after their petition to the Defense Ministry has been approved and their background checks have cleared. The type of legal weaponry available for purchase is limited to low caliber weaponry and the only legal seller is the Defense Ministry itself.

Mexico’s problems with gun violence more likely stem from the flow of weapons obtained legally and illegally in the Unites States. Once obtained, these firearms are then smuggled south across the border.

China

In 1911 the last of China’s long line of monarchist dynasties collapsed, leaving the large nation under the control of a patchwork of dueling warlords. Out of this chaotic and violent period, two parties emerged the Kuomintang Party and the Communist Party of China (CPC). Neither was powerful enough to take over the entire country on their own and both appealed to foreign powers for help with their domestic issues. An extensive Civil War followed, it lasted form 1927 until around 1950 when the CPC took over mainland China and formed the People’s Republic of China as a Communist State.

Today’s China fits in with the traditional stereotype of Communist states in that they allow very little in the way of personal or individual freedom. Speech, media, education, jobs, and arms are all strictly controlled. The actual political situation is much more complicated than such a superficial description, but such discussions aren’t meant for a blog like this.

In short, the right to bear arms is nonexistent in China. If you are not a member of the police, the army or the paramilitary you are not allowed to own or sell a gun. If you are convicted of violating this law you face a minimum 3 year prison sentence and at maximum the death penalty.

Switzerland

Switzerland is a landlocked European nation that has quite literally been at the center of a large number of European wars. Historically, as a result the Swiss army had to be well trained and ready for rapid deployment in response to foreign aggression at all times. The Swiss enabled this rapid deployment by training their army through their militias. Though the political climate of Europe has calmed, Switzerland’s militia tradition continues.

All young Swiss males are subject to Switzerland’s universal conscription law which means they are automatically eligible for conscription into the armed forces when they are between 20-34 years old. In addition, after they have completed their period of active duty, they will most likely be placed back in their militias until age, disability or some other infirmity renders them unable to serve and thus ends their legal obligation. Since most Swiss men are part of the militia, they are required to keep their service weapons in their homes.

However, Swiss citizens who are not part of the military and are not licensed to carry the weapons are not allowed to carry them. In addition, owners are considered legally responsible should a third party access and use their weapons.

So where does that leave us?

Obviously our country has a deep history with guns. There are many responsible gun owners out there but there are also many stories of gun violence: school shootings, gang violence, drug violence, etc. Considering the words of the Constitution, the history of American gun rights, and the power behind gun right advocates like the NRA (National Rifle Association), it is unlikely we will see an end to the right of individual gun ownership in America.

However, perhaps using a uniformed licensing and registration procedure could help curb the volume of gun related deaths in America. If all owners were required to go through a licensing program and register their weapons, (just as they are required to for the use of automobiles) it could encourage them to be more responsible and careful when using and securing their weapons.

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New Gun Control Rulings and Constitutional Implications

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“The great object is, that every man be armed… Every one who is able may have a gun.” -Patrick Henry

Whether you agree or not that Americans should have the right to bear arms, the founding fathers of the U.S. certainly thought so- the Second Amendment of the Constitution provides that the right to bear arms shall not be infringed upon.

Our modern Supreme Court seems to agree as well- recently the U.S. Supreme Court issued a ruling which extends the Constitutional right to bear arms to state and local gun control ordinances.

What this means is that states that historically have had stricter gun control laws will possibly have to slacken the scope of their gun laws in light of the expanded guarantee that private citizens can own guns.

For example, the city of Chicago is now wrestling with their gun control options.  Under the new ruling, the city’s current ban on handguns will likely be found unconstitutional since the right to bear arms now applies to state laws.  Citizens of Chicago, which currently has some of the strictest gun laws in the U.S., are outraged by the ruling, claiming that the ban on handguns has helped curbed violence in a major way.  The city’s mayor has already proposed new gun rules and registration procedures in anticipation that the current ban will be struck down.

Other states that will be affected by the new ruling are New York, California, and the District of Columbia, where guns are regulated quite heavily.

The case, McDonald v. City of Chicago (text of case here) is important not only for the arena of gun control laws, but also because of the way that the Supreme Court justices were generally able to extend federal constitutional rights to state governments.  If you recall, the Second Amendment, as part of the Bill of Rights, originally applies only to the federal and not state governments.  So how were the justices able to make the extension from federal to state?

Here the court had the option of choosing between two clauses that are found in the 14th Amendment of the Constitution.  First, they could allow states to “incorporate” the right to bear arms through the Due Process clause by proving that gun control laws restricted the due process rights of citizens.  Alternatively, under the Privileges and Immunities clause of the 14th amendment, the right to bear arms could be deemed one of the privileges that the states are prohibited from taking away.

Ultimately, the justices opted for the first choice and ruled that state restrictions on the right to bear arms may violate the Due Process clause.  This is important, as the due process clause largely deals with procedural issues.  It still remains to be decided whether the right to bear arms is a basic privilege that everyone is entitled to.  Only Justice Thomas in his highly praised concurrence made the argument that gun ownership is a basic privilege.

This is federalism (the division between federal and state governments) at its finest- the recent ruling questions the Supreme Court’s ability to apply general constitutional rights while at the same time addressing the specific needs of each state.  The McDonald case also leaves open the question of how each state is supposed to implement the new ruling.

The general gun control debate is one of the most explosive topics ever.  I particularly like the debate because aside from federalism concerns, it highlights what is known as political geography.  It is well-known that the left and right ends of the political spectrum tend to correspond respectively with urban and rural demographics.  Nowhere is this seen more clearly than with gun laws.

For example, gun violence in urban versus rural settings varies widely both in numbers and in their qualitative characteristics.  In rural areas, gun ownership is high but violence rates are lower.  Whereas in cities like Chicago, violence levels are high but gun ownership and registration is low (hence the Chicago handgun ban).  State gun laws tend to reflect these geographical differences.

As such, gun owners in a rural area would likely favor the Privileges and Immunities argument, as they tend to view long guns (rifles) as a necessary part of protecting their agricultural properties from intruders.  In contrast, urban areas are more associated with handguns as a means of protection from violent crime.  In that setting, a Due Process theory is more relevant, as cities such as Chicago attempt to institute procedures such as enforcing mandatory gun registration more strictly.

Thus the question of the rights to bear arms is not only about simply owning a gun, but rather for what purposes the gun will be used and whether or not it will be registered.

In my opinion one possible solution (or compromise maybe) is to allow citizens access to the many non-lethal weapons that are currently being developed by researchers (click here for a few high-caliber specimens).  Aside from propelling us into the science-fiction age, non-lethal weapons may be a viable option because they allow one to protect their property and safety interests while preserving the intruder’s life.

For the moment, several states’ lawmakers are scrambling to strike a balance between preventing gun violence and honoring peoples’ now expanded right to bear arms.  And one thing is a sure shot: more litigation is sure to follow the new gun control ruling.  Constitutional lawyers, armed with the new ruling, are already loading bullets into their chambers and aiming their legal weapons at states with questionable gun restriction laws.

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Possessing a Licensed Firearm Does Not Make One “Armed and Dangerous”

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Since the U.S. Supreme Court decided the case of District of Columbia v. Heller less than two years ago, holding that the 2nd Amendment recognizes an individual, as opposed to collective, right to bear arms, while giving no guidance as to the actual scope of that right, many interesting cases from state courts and lower federal courts have come out, testing the bounds of the right. To be sure, it will be many years before the exact scope of one’s right to own guns is settled with reasonable certainty.

However, an interesting case has just come out of an appellate court in Indiana: Washington v. State. While this case does not directly deal with the right to bear arms, it does address the scope of that right indirectly, in relation to the 4th Amendment’s protection against unreasonable search and seizure.  The case held that simply possessing a firearm for which one has a license, without more, does not make a person “armed and dangerous,” thereby justifying a police officer in stopping the person on the street and frisking them.

Here’s a quick refresher on 4th Amendment jurisprudence: the 4th Amendment protects us against “unreasonable searches and seizures” and lays out the conditions under which search and arrest warrants can be issued. It does not, however, say when a warrant is required to conduct a search, or if that’s even required at all. Over the years, courts have filled in the gaps. Basically, they’ve settled on the idea that a search without a warrant is presumptively unreasonable (and therefore unconstitutional), but have articulated many exceptions. One of these exceptions was laid out in Terry v. Ohio – holding that if a person is in public, and a police officer has a reasonable suspicion that the person is armed and dangerous, the officer can stop them for a short period of time (just long enough to search their person), and frisk them. Any contraband (illegal drugs or weapons, for example) found in such a search can then serve as the justification for an arrest.

In this case, the officer stopped Mr. Washington in his car, and Washington admitted that he had a gun, and a valid permit to possess it. On that basis, the officer searched his car, found a bag of marijuana, and then arrested Washington.

The appeals court held, correctly, in my view, that based on the gun alone, the officer never should have searched the car in the first place. This makes sense. To justify such a search, the suspect must be armed AND dangerous. Simply being armed is not enough. And possessing a firearm which one has a legal right to own should not lead a police officer to the conclusion that the suspect is dangerous.

This case, along with the newfound and ill-defined constitutional right to own a gun raises some interesting questions about other gun crimes, and if they will survive. For example, in many states, crimes committed while in possession of a firearm call for enhanced punishments. It often doesn’t matter if the gun was actually used in the possession of a crime. If the gun is legal, it seems that it shouldn’t add to the defendant’s culpability.

It’s likely that we’re going to see many more cases like this in the near future, through which the exact scope of the right to bear arms will begin to take shape. Of course, nobody wants to be the subject of a test case. If you own a gun, you should be sure to follow all of the relevant federal, state, and local laws related to gun ownership, even if you view them to be unjust. You should also know that it’s very unlikely that the Supreme Court will ever find that you have a completely unfettered right to possess whatever firearms you like, so if you’re hoping that keeping a few heavy machine guns in your attic will eventually lead to a Supreme Court decision in your favor, you’re mistaken. In Heller, the court took pains to make clear that states can still place reasonable regulations on the sale, possession, and use of guns. Most people, including myself, probably see that as a fair balance for the court to strike.

However, exactly how the competing interests of the individual right to own guns, and ensuring that they are possessed and used in a safe manner will be balanced remains to be seen. Whatever happens, it’s going to be interesting.

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