Of Arms & the Law

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A dissenting statement by Commissioner Gail Herriot, of the Commission on Civil Rights. “This report should not have been published in this form. When the results of an empirical study don’t come out the way Commission members hoped and expected that they would, the right thing to do is usually to publish those results anyway. Why hide useful information? Instead, the Commission sat on the report for years. Then it decided to discard the draft written by our staff and publish instead a transcript of the witness testimony received at our briefing that took place on October 17, 2014…
Right here. I have a paper submitted to a medical journal which begins something like, “I have chosen to write upon a topic on which very little has been written recently. In fact, very little has been written at all. Arrow wounds.”…
By this incredibly handy chart of cases eleven Second Amendment petitions for cert were distributed for conference (where the vote will be taken). Yet the Court’s order list for Monday’s conference shows none were acted upon. How to read this? My SWAG (Scientific Wild-Ass Guess) is that the majority is having trouble deciding which one(s) to pick. They took MYSRPA when it was hardly cert-worthy (an ordinance adopted by one city only) and now, having gotten it off the docket, are looking at a really big field of cases and debating which should be the one. Should they take on…
Order here, from the Circuit Court for the City of Lynchburg. It’s pretty straightforward. The Virginia statute that establishes a governor’s powers in an emergency specifically says these powers do not allow the governor to “in any way limit or prohibit the rights of the people to keep and bar arms” as protected by the Virginia Constitution and the Second Amendment. I would’ve expected the governor to concede, given the clear language, but his attorneys try to get around it, without success. They appear to have argued that shooting is not “bearing,” that the court should defer to the…
In Young, which challenges Hawaii’s “may issue” (which is in practice, literally, “no issue”) handgun carry permit system, the panel ruled for Young, but the court voted for rehearing en banc. (Don Kilmer jest that the 9th ought to adopt a Circuit Rule: “after any panel ruling favorable to Second Amendment rights shall be followed by rehearing en banc.” That way, they’d save the time wasted on taking a vote). Then the circuit stayed the rehearing pending a ruling in NYSRPA v. NY. The Supreme Court having held NYSRPA moot, the 9th Circuit lifted the stay with an order providing…
Tomorrow, the Court conferences on (among other things) the Second Amendment cases on its docket –<a href=”https://www.wbur.org/news/2020/04/30/supreme-court-massachusetts-gun-laws-coronavirus-relief” target=”_blank” the conference will be conducted via conference call. And when next the Court holds oral argument, on Monday, the audio will be broadcast on C-Span.…
Yesterday the Court remanded NYSRPA. I found it did something else, too. There are by my count seven 2A cases in the Supreme Court pipeline–cases where the petition for cert have been briefed, the case set for a vote in conference, yet the Court neither granted nor denied, just left them out there in limbo. A couple of them have been in that status for over a year. Yesterday the Court ordered all seven distributed for the conference of May 1.…
Opinion here. Justice Alito, joined by Gorsuch and Thomas (in part) has a powerful dissent, essentially saying NY set out to moot this case precisely because we accepted it. UPDATE: having read the dissent… it looks like we have three Justices signing on to Gorsuch’s “text, history and tradition” test. That is, forget about standards of review. If a restriction wasn’t known (perhaps even widespread) around the time of the Framing, it is unconstitutional. By that standard, even bans on concealed carry are questionable (first one was 1813, as I recall, and they didn’t become widespread until the late 19th…
The case is US v. McGinnis, an appeal from a conviction for possessing a short-barreled rifle and possession of ammunition while subject to a domestic restraining order. The three-judge panel sustains the convictions, using a traditional standard of scrutiny approach. But two of the three judges write a concurrence (see p. 20), suggesting that the Circuit ought to scrap that approach and go with “text and history,” an approach taken by Justice Gorsuch. “Not only would this approach provide firmer ground for evaluating restrictions on the right to bear arms, but it would also further cabin judicial application of…