Tag Archive for 'gun control'

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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Tighter Gun Laws Are Not The Only Way To Reduce Gun Crimes

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A new report concerning gun trafficking was recently issued by a coalition of concerned mayors.  The group, Mayors Against Illegal Guns, is headed by New York City Mayor Michael Bloomberg and the report’s findings advocate a toughing of gun control laws in ten states with the highest gun crimes in the country.

The report indicates that these states: Mississippi, West Virginia, Kentucky, Alaska, Alabama, South Carolina, Virginia, Indiana, Nevada, and Georgia, have not only the most gun crimes in America, but are all hubs for illegal gun trafficking.  The report suggests that the loose guns laws in these states make them natural centers for gun violence.

Bloomberg and friends make a compelling argument.  It seems like a logical step to take.  If a state’s crime statistics show it is particularly plagued by a certain type of crime, it makes sense to first identify the frequent crime in question and then look for what makes it so endemic to that state.  In the case of these states it is illegal guns and the loophole-filled state gun laws that encourage them, respectively.  By investing time and money to pass legislation to eliminate those loopholes, one would think that the natural result would be a lessening of gun crimes.  However, within this sound logic lies a problem: it assumes people only commit these sorts of gun crimes because the law is so relaxed.

Now don’t get me wrong.  I’m not a part of the “decriminalize everything” camp.  After all, guns and hardcore illegal substances, like cocaine and methamphetamine, are called vices for a reason.  That reason being that when they are left uncontrolled, abuse of them leads to destruction and decay in both the users and society.  From this perspective, the laws in place restraining such vices must be strict because they are necessary to preserve our country’s future prosperity.  But they are only necessary until a society has evolved beyond the need for their bounds, which in all likelihood will probably never be in our lifetime, and even then the laws should probably still remain intact.

The point is that though strengthening gun control laws is a necessity to destroy the illegal gun trafficking markets in these states, as well as curb gun-related violence, what Bloomberg’s group and our government seem to be forgetting to address are the deeper social reasons for why these crimes are committed in the first place.

Imagine how our country would be if no one wanted to shoot people to death or be placed in a position where they felt they need to do so.  It may sound like a pipe dream, but in some sense this is somewhat of a reality in other countries.  Japan for instance has some of the lowest homicide rates in the world.  Some sociologists attribute this to the fact that their culture is one that is based around strict adherence to respect for societal order.  Their culture is integrated into how their government governs its people.  Programs such as full public health care, housing, and other social services with offerings beyond what America offers to its people reinforces the idea that crime isn’t a necessity to live.  This can also be said about many other Asian and European countries as well, such as Singapore and Denmark.  Though these countries have strict gun control laws in place, they also have a strong government funded support system to enforce the idea to their citizens that crime isn’t necessary in a society where everyone’s needs are met.  Their laws also emphasize a restorative model of punishment.  That is, instead of sentencing criminals to harsh prison terms as an example to deter other potential criminals, these countries focus on rehabilitating the criminal so that he or she can reenter society.

Filling in the holes in gun laws is a good first step toward reducing gun trafficking and crimes.  But Bloomberg’s coalition and legislators in general have to remember not to get tunnel vision when it comes to the bigger picture of how to ultimately make our country a safer and better place.  Society needs laws, but it also needs people who understand why laws should be respected in the first place.

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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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