Category: Courts

Granted (pun intended) the Supremes erred in Murdock in saying that the Constitution ‘grants’ rights, however it did re-correct itself in Heller.

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US Supreme Court: Gun Licensing Fees Are Unconstitutional

While I am not an attorney and cannot give formal legal advice, a 1943 U.S. Supreme Court decision, , may give Second Amendment–supporters an overwhelming legal weapon with which to destroy every single firearm ownership (although not necessarily concealed carry) licensing scheme in the country.  This includes those that require licenses to own or purchase firearms.

• License to own: IL, MA, NY
• License to purchase: CT, HI, IA, MD, MI, NE, NJ, NC, RI

The executive summary of the ruling in Murdock v. Pennsylvania (1943) was that it is unconstitutional for a state to levy a tax on people who want to sell religious merchandise.  “A municipal ordinance which, as construed and applied, requires religious colporteurs to pay a license tax as a condition to the pursuit of their activities, is invalid under the Federal Constitution as a denial of freedom of speech, press and religion. The mere fact that the religious literature is ‘sold’, rather than ‘donated’ does not transform the activities of the colporteur into a commercial enterprise.”

What does this have to do with fees to obtain a license to own or purchase a firearm?  The USSC also found, “A State may not impose a charge for the enjoyment of a right granted by the Federal Constitution.”  This means the entire Bill of Rights as opposed to just the First Amendment.

It is similarly unconstitutional to charge a fee to exercise the right to vote, AKA a poll tax.  This could well be the reason why states with voter ID laws must provide free identification cards to qualified residents who do not have driver’s licenses, as shown by Crawford v. Marion County Election Board.  “The law’s universally applicable requirements are eminently reasonable because the burden of acquiring, possessing, and showing a free photo identification is not a significant increase over the usual voting burdens, and the State’s stated interests are sufficient to sustain that minimal burden.”  States can charge fees for driver’s licenses because driving is a privilege, but voting is a right.

Gun Licensing Fees Are Racist

The racist nature of many gun licensing schemes is meanwhile underscored by an amicus curiae brief filed by the African-American Gun Association (AAGA) against California.  “African Americans have been the target of some of the oldest and most odious attempts at forced disarmament[.] … NAAGA has a strong interest in this case because taxes and fees imposed on the right to keep and bear arms disproportionately affect African Americans,

due to the average lower income and higher rate of poverty in the African-American community.”  White supremacists once argued openly that this was their intention, and I recall that the complete quote, while it did not use the N-word, did refer to the “son of Ham.”

It is a matter of common knowledge that in this state and in several others, the more especially in the Southern states where the negro population is so large, that this cowardly practice of “toting” guns has always been one of the most fruitful sources of crime[.] … There would be a very decided falling off of killings “in the heat of passion” if a prohibitive tax were laid on the privilege of handling and disposing of revolvers and other small arms, or else that every person purchasing such deadly weapons should be required to register[.] … Let a negro board a railroad train with a quart of mean whiskey and a pistol in his grip and the chances are that there will be a murder, or at least a row, before he alights.

The same went for a Virginia poll tax on the right to vote.

Discrimination!  Why, that is precisely what we propose; that, exactly, is what this Convention was elected for — to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.

The same applies to laws that require gun-owners to buy expensive liability insurance that might be affordable by people of the middle and upper classes, but not by low-paid workers among whom are many black Americans.  While these laws cannot discriminate openly against black people (just as Jim Crow gun taxes and prohibitions on inexpensive firearms known as N-word Saturday Night Specials did not specify any race), they can and do exploit the economic disparity that unfortunately prevails between Caucasians and black people to disarm the latter.  Perhaps certain elements of the Democratic Party have hidden the same sheets and hoods they wore openly 70 or 80 years ago instead of getting rid of them entirely.

An Illinois Court Questioned the FOID Card Requirement

More to the point, however, is the brief’s citation of Murdock v. Pennsylvania and the phrase “[a]cross constitutional rights, the courts have consistently forbidden the use of special fees and taxes on constitutionally protected conduct to generate general revenue.”

Even Illinois’s own courts appear to be finding issues with the Firearm Owner Identification Card per Illinois v. Brown.  “The circuit court was correct that the FOID card requirement impermissibly infringes on law- abiding persons’ rights to bear long arms-in their own homes for self-defense.”  The court filing also argues that the FOID card fee violates not just the U.S. Constitution, but also Illinois’s own laws: “a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.  Thus, Brown, who was merely exercising her right to keep a long gun in her own home for self-defense, cannot be made to purchase a card or obtain a license to exercise this fundamental right guaranteed by the Constitution.”  I do not know the outcome of this case but the bottom line is that an Illinois court had problems with the FOID law.

This article has hopefully provided Second Amendment–supporters with a valuable legal tool with which to attack all state laws that require people to pay for licenses to own or purchase firearms, and potential jurors (i.e., every citizen in the country) with information to use if called to serve in cases that involve these laws.

West Virginia attorney general threatens to sue Biden over gun measures

West Virginia Attorney General Patrick Morrisey (R) on Thursday threatened to sue the Biden administration over President Biden’s proposed gun safety measures.

Morrisey issued a statement threatening to be in court “very quickly” if Biden follows through on his proposals, which the president unveiled at the White House Rose Garden on Thursday.

“Defending the Second Amendment remains one of the most important priorities for the West Virginia Attorney General’s Office,” Morrisey said. “I will not allow the far left to run roughshod over our citizens’ gun rights. If President Biden follows through on his proposals, we will be in court very quickly.”

“Gun violence and the senseless death attributed to it should pain all Americans, however, the evil acts of a select few should never be a catalyst for stripping the lawful masses of their constitutional rights, especially their right to self-defense and to bear arms,” he continued.

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22 states fight California gun restrictions, urge Ninth Circuit to rule against large-capacity magazine ban

A coalition of 22 states, led by the Republican attorneys general of Arizona and Louisiana, is urging the Ninth Circuit Court of Appeals to again rule against California’s controversial attempt to ban high-capacity magazines, after the court agreed to reconsider its decision to rule it unconstitutional.

“California politicians are at it again, convinced that their agendas should override the Constitutional rights of the people,” said Attorney General Mark Brnovich, a Republican, in a statement, announcing the filing of an amicus brief. “Attempts to undermine the Second Amendment or any of our civil rights and liberties should be met with deep skepticism and vigorous opposition.”

California passed a ban on magazines of 10 bullets or more in 2016. A ruling by a federal judge that it was unconstitutional was upheld by a three-judge panel on the Ninth Circuit last year. In February, the court agreed to have an 11-judge panel rehear the case.

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it only takes 4 justices to decide to hear a case, and we’ve got 5 that appear to be on board with a more ‘expansive view’ of individual rights.

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U.S. Supreme Court weighs taking up major gun rights case

NEW YORK, March 26 – The U.S. Supreme Court on Friday will discuss taking up a major new gun rights case involving a National Rifle Association-backed challenge to a New York state law that restricts the ability of residents to carry concealed handguns in public.

The nine justices will discuss the case at their private weekly conference at a time of heightened concern about gun violence in the United States following a pair of mass shootings in a span of a week, one in Georgia and the other in Colorado, that killed a total of 18 people.

Two gun owners and the New York affiliate of the NRA, an influential gun rights group closely aligned with Republicans, are asking the justices to hear an appeal of a lower court ruling throwing out their challenge to a policy that requires a state resident to show “proper cause” to obtain a permit to carry a concealed handgun outside the home.

Lower courts rejected the argument made by plaintiffs that the restrictions violated the U.S. Constitution’s Second Amendment right to keep and bear arms.

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The Federal Circuits’ Second Amendment Doctrines

by David Kopel and Joseph Greenlee, from 2016

This Article describes the process for deciding Second Amendment cases, as set forth by the Circuits of the United States Courts of Appeals. The focus of the Article is how the circuit courts analyze Second Amendment cases.

In the eight years since the Supreme Court decided District of Columbia v. Heller , the circuit courts have collectively worked out a Second  Amendment methodology. Although there are differences among the circuits, and sometimes among panels within the same circuit, the methodology described below has become standard, albeit not universal.

We have examined every post- Heller circuit case, including the unpublished ones. The cases are listed in the Appendix by circuit. We occasionally cite state court and federal district court cases that are especially illuminating

Well, we can hope that 4 Justices decide to hear these cases. And that at least 5 of them will decide to do the right thing by the Constitution and Bill of Rights

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The Coming Second Amendment Court Fights

The ink was barely dry on the U.S. Supreme Court’s 2008 District of Columbia v. Heller decision before lower courts began deliberately and systematically undercutting it. Judicial defiance has ranged from misreading the scope of the right enunciated by Heller to undermining decades of fundamental-right jurisprudence. For over a decade, attorneys sought only a fair-import application of Heller’s history-based analysis, but, with rare exceptions, instead faced massive resistance from judges who disfavor the Second Amendment.

A few cases illustrate the extent of this judicial activism. In upholding New Jersey’s very restrictive may-issue concealed-carry licensing regime in 2013, the Third Circuit Court of Appeals held that public carry was not protected by the Second Amendment because New Jersey’s “justifiable need” requirement for concealed-carry permits was a “longstanding” regulation and thus presumptively lawful under Heller. But the regulation was not enacted until 1924, and the court ignored that New Jersey allowed open carry until 1966.

The court then performed an alternative analysis under what it termed “intermediate scrutiny”—theoretically a heightened level of judicial review for constitutional rights. Under that test, the state bears the burden of showing that, to quote the Third Circuit, a given regulation does “not burden more [conduct] than is reasonably necessary” in attempting to achieve its stated end. Yet the court relied entirely on the “predictive judgment of NJ’s legislators” that limiting issuance of carry permits would enhance public safety. The judgment that more lenient carry laws led to more crime was based, to quote the dissent, on “no evidence at all.” Not one shred. The majority relieved the state from its burden of proof on the ground that when New Jersey passed its statute, Heller had not yet declared the Second Amendment to be an individual right, so the legislature could not have been expected to know that it would have to justify its law.

In a later case upholding Maryland’s ban on so-called “assault weapons,” in addition to deploying hostile and vitriolic language, the Fourth Circuit misstated Heller while demonstrating its ignorance of firearms. The court opined that Maryland’s ban was valid, in part, because Heller struck down only a ban on handguns—ignoring that Heller also struck a ban on keeping operable long guns in the home. The Fourth Circuit also decided that some “assault weapons” could be banned because they were designed with “spray-firing” in mind. This is, of course, false. The weapons on Maryland’s list were intended to be aimed. “Shooting from the hip” is the disparaging term used to describe the rash act of discharging a firearm without aiming. These judges lacked rudimentary knowledge about the function of the firearms at issue.

But the Fourth Circuit truly displayed its philosopher-king-style elitism in referring to the banned firearms as “weapons of war” while upholding a part of the law that allowed retired law-enforcement officers to keep their duty AR-15 rifles upon retirement. The Maryland State Police and the U.S. Marshals who protect federal judges use AR-15s as their duty rifles. If these rifles were truly “weapons of war,” they should not regularly be used by police or the judges’ personal guards. The Fourth Circuit thus implicitly held that judges’ and retired officers’ lives are worth protecting with the best-available tools (they are), but that the rest of ours are not.

These egregious examples are not exceptional. In this new political climate, bills like H.R. 127—a laundry list of gun controls that includes a ban on common ammunition and magazines capable of holding more than 10 rounds, mandatory liability insurance for gun owners and more—must move no further than introduction. Civic engagement that works toward the election of legislators and executives who will both pass constitutional laws and nominate and confirm judges who will apply the law rather than bend it to their will, is critical.

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There’s no time like the present to take a Second Amendment case.
Thirteen years after Heller, it’s time for the Supreme Court to settle whether the Second Amendment applies outside the home.

In 2008, the Supreme Court decided D.C. v. Heller. Since that date, President Obama served two terms, President Trump served one term, and President Biden has begun his first term. Five members of the Court left through resignation or death: Justice Souter, Stevens, Scalia, Kennedy, and Ginsburg. Only four members from that Court remain: Chief Justice Roberts, and Justices Thomas, Alito, and Breyer.

Over the past thirteen years, a lot has changed. Yet, one thing has remained constant: the Supreme Court has refused to provide any further explanation about the scope of the Second Amendment. We have seen radical shifts in many other areas of the law, but for guns, we are still stuck in 2008. During this time, the lower courts have brazenly resisted Heller at every step. Yet, at least as of June 2020, there were not enough votes to take a gun case.

Now, I presume, the votes are present. Paul Clement has gift wrapped a cert petition with a bow for the Justices to review. NYS Rifle & Pistol Association II would present a simple question: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” Answering this question, yes or no, would settle so much ongoing litigation. The case will be distributed for the March 26, 2021 conference. Keeping with past practice, the Court generally relists a petition once before granting. Thus, on April 1, the Court will decide whether to take this case.

I am confident there are four votes to grant review. Justices Thomas, Alito, Gorsuch, and Kavanaugh were all eager to review the underlying issue in NYS Rifle & Pistol Association I last term. But that dispute was deemed moot. Clement’s current petition has no vehicle problems. He explains:

The circuits are deeply split, and no other circuit is likely to join the fray because the regional circuits that have not weighed in generally coincide with regions where state governments value and respect Second Amendment rights. Thus, the nation is split, with the Second Amendment alive and well in the vast middle of the nation, and those same rights disregarded near the coasts. Whatever else the framers intended in enshrining the Second Amendment in our charter of fundamental freedoms and guaranteeing rights to “keep and bear arms” to all “the people,” it was not to tolerate a nation divided on an issue this significant. This Court should grant plenary review.

However, if the Court declines to grant review, we can draw an unwelcome inference: there is uncertainty over how Justice Barrett will vote. I am skeptical of this outcome. During her tenure as a circuit judge, Barrett wrote a thorough Second Amendment dissent. It was brilliant. Randy and I excerpted it for our casebook.

I will keep my eyes peeled for April 1, or perhaps April 5. If this petition is neither granted nor denied, we can presume that a dissent from denial is being prepared. And the Second Amendment will remain in limbo for the foreseeable future.