Recently in Firearms Category

The academic debate on whether increased ownership of guns by law-abiding citizens reduces crime continues.  John Lott has been the leading advocate for the "yes" side of that debate.  He has a new paper on SSRN, with John Whitley and Rebehak Riley, titled Concealed Carry Permit Holders Across the United States.  The abstract follows the break.
Today the Supreme Court, 6-2-1, declared that the "residual clause" of the Armed Career Criminal Act is unconstitutional.

The ACCA has a "three strikes" provision for violent felony priors, defined as a crime punished by over a year in prison that :

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another
What the heck does that last part mean?  That's the problem.  Criminal laws need to be more clear than that, the majority says.  The rest of the law remains in force.

The case is Johnson v. United States, No. 13-7120.  Justices Kennedy and Thomas concur in the judgment overturning Johnson's sentence by applying rather than invalidating the statute.  That is, they believe the statute is constitutional but that possessing a short-barreled shotgun is not a violent felony under the statute.  Justice Alito dissents.

No Glossip today.  From a press coverage viewpoint, that's just as well, as the decision in a civil case will suck all the oxygen out of the room.  The Court has informed the press that Monday is the last day of the term, so we will definitely have a decision then.

California Gun Control Case

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Today the U.S. Court of Appeals for the Ninth Circuit hears argument en banc in a controversial gun control case.  The summary to the three-judge panel opinion describes the case:

The panel reversed the district court's summary judgment and held that a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.

Plaintiffs challenged a County of San Diego policy which interpreted California's restriction on carrying handguns in public. California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations, absent the showing of, among other things, good cause. Under San Diego's policy, concern for one's personal safety alone is not considered good cause.
Ashby Jones has this article in the WSJ.  The court has this case page.  The oral argument is here.
Jessica Gresko and Ben Nuckols report for AP:

People in the nation's capital no longer have to show a good reason to get a permit to carry concealed handguns outside their homes and businesses.

The District of Columbia's police chief said Tuesday that she's dropping this requirement, a centerpiece of the city's handgun-control legislation, after a federal judge issued a preliminary injunction against it.

How about being in a jurisdiction where the murder rate is many times higher than the national average and among the highest of all American cities?  Doesn't everyone in the District have a "good reason"?

SCOTUS Tuesday

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Only one decision from the U.S. Supreme Court today.  It is an "original jurisdiction" case, states suing each other over river water:  Kansas v. Nebraska.  Still waiting on Elonis v. United States.

Today's criminal law argument has to do with the disposition of firearms seized from a defendant when the criminal case is over and the now-convicted defendant can no longer legally possess them: Henderson v. United States, No. 13-1487.
Looks like criminal law and law enforcement are going to be a bigger part of this Term of the U.S. Supreme Court.  The Court's Monday orders list took up for full briefing and argument three criminal and related cases:

Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala.   The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus.  If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.

Los Angeles v. Patel, No. 13-1175:  Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can?  There are a lot of heavily regulated industries that have such requirements.  The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example.  No warrant or particularized basis of suspicion required.  How about hotels?

Henderson v. United States, No. 13-1487:  What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?
Miguel Bustillo, Ana Campoy, and Andrew Grossman report in the WSJ:

At a news conference, Sgt. Jeremy Lewis of the Police Department in Moore, near Oklahoma City, said the suspect in the stabbing spree, Alton Nolen, began attacking workers at random after he was fired from his job at the city's Vaughan Foods Inc. processing plant around 4:05 p.m. local time on Thursday.

When police arrived, two women in the plant's front office area had been attacked and Mr. Nolen, 30, lay wounded from gunshots, Sgt. Lewis said. One of the women, Colleen Hufford, 54, was decapitated. "He did kill Colleen and did sever her head," Sgt. Lewis said.

Police determined that as Mr. Nolen attacked the second victim, Traci Johnson, 43, he was confronted and shot by the chief operating officer of Vaughan Foods, Mark Vaughan, who is a reserve Oklahoma County sheriff's deputy, Sgt. Lewis said. "This off-duty deputy definitely saved Traci's life," he said, describing Mr. Vaughan as a hero. "This was not going to stop if he didn't stop it."

Boston's Growing Murder Problem

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Since finishing up my time interning with the Criminal Justice Legal Foundation I have moved back to Boston to begin my final year at Suffolk University Law School. While back here I am a Massachusetts Supreme Judicial Court Rule 3.03 Certified Student Prosecutor. That basically means I intern for a local District Attorney's office with all the responsibilities and powers of an Assistant District Attorney but am always under the supervision of someone who makes sure I don't screw things up too bad. These opinions are my own and not that of CJLF, the Plymouth County District Attorney's Office, and most certainly not that of Suffolk University Law School.
I come back to a city in crisis, as the gun violence and murder rates from the summer have dwarfed, in historic proportions, the rates from the previous summer and the past several summers.

SCOTUS Wednesday

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Today, the US Supreme Court decided United States v. Castleman, No. 12-1371, a case involving the interpretation of the federal statute restricting gun ownership by a person convicted of "a misdemeanor crime of domestic violence," 18 U.S.C. §922(g)(9).  The Court holds unanimously that this includes a state conviction for "having 'intentionally or knowingly cause[d] bodily injury to' the mother of his child," reversing the Sixth Circuit.  There is some disagreement on how much further the statute reaches.

What about the Second Amendment?

Finally, Castleman suggests--in a single paragraph--that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.
Now there's a public spanking for an inadequate argument, but no precedent on the Second Amendment question.

For today's oral argument session, the Court is hearing Wood v. Moss.  Aside from its interesting name (placing it in a category with the famous Plough v. Fields and Silver v. Gold) the case is about qualified immunity for Secret Service agents who were sued for thinking that demonstrators against the President just might pose a greater threat than demonstrators for him and acting accordingly.

Update:  Adam Liptak has this article in the NYT on the argument, noting that some of the justices urged the lawyer for the government to take a bolder position than the one he was taking.

Aiding, Abetting, and Guns

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The US Supreme Court has decided Rosemond v. United States, exploring yet another facet of the federal law on use of a gun in a crime, 18 U.S.C. § 924(c).  This case involves the "what did he know, and intend, and when did he know/intend it" aspect when an accomplice to a robbery uses a gun.

We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.
*                              *                           *
An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope--that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety--including its use of a firearm.
In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.

Defending Statutes

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HolderDaisy.jpgTwo weeks ago, a divided panel of the Ninth Circuit declared California's law on carrying guns in public to be unconstitutional in Peruta v. San Diego, No. 10-56971.  Judge O'Scannlain's opinion begins, "We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense."  He and Judge Callahan answer yes.  Judge Thomas dissents.

The San Diego Sheriff announced he would not seek rehearing en banc.  The California Attorney General has now moved to intervene and petitioned for rehearing en banc.

In my view, the AG is entirely correct to do this regardless of where one stands on the underlying question.  The proper operation of our system of separation of powers requires a defense of statutes when they are challenged judicially, and it is the Attorney General's duty to make that defense as long as one can reasonably be made.  It is dereliction of duty for AGs to refuse to defend statutes merely because they agree with the plaintiffs on close questions of constitutional law or, even worse, merely because they oppose the policy behind the statute.  The United States Attorney General notoriously failed to defend the anti-Miranda statute in the Dickerson case back in 1999.  That was very wrong, even though the case ultimately ended with the statute being struck down.

In this case, I have no doubt that Ms. Harris supports the policy behind the statute, so the disagreement issue is not presented.  However, I expect she will be criticized for defending it, so I wanted to state up front that her decision to make the case for the statute's constitutionality is correct, in my view.

Oh, BTW, the case is a slam dunk for rehearing en banc.
Friday, I previewed the capital cases on the list for the U.S. Supreme Court's "long conference" yesterday. None were taken up in the short orders list released today.  Denials of certiorari (i.e., the Supreme Court declining to take the case and letting the lower court judgment stand) usually come out in the long list released when the Court formally convenes for its new term, the first Monday in October.

There was one exception to the denials-later practice today.  The Court turned down the case of Florida murderer Marshall Gore.  As noted in the prior post, Gore's claim of mental incompetence has been found to be "patently a fabrication."  He is scheduled for execution today.

The other capital cases will probably be denied Monday, although one or more might be "relisted" to be considered again at a future conference.

The case of a traffic stop based on an anonymous call is described in a separate post.

The Court also took up the case of United States v. Castleman, No. 12-1371, another variation on the federal statute barring gun possession by people with certain convictions, in this case a "misdemeanor crime of domestic violence."  This appears to be a pure statutory interpretation argument, not involving the constitutional question of whether Congress has the authority to micromanage who is allowed to possess a gun.
Under the Supreme Court's post-1937 view of the Commerce Clause, Congress has the power to regulate intrastate activity if it affects interstate commerce.  That includes a farmer growing wheat for use on his own farm, the high court decided in my least favorite opinion by my favorite justice, Wickard v. Filburn (1942).  What's good for wheat is good for weed, the court said in Gonzales v. Raich (2005).

Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.

The Montana Legislature passed the Montana Firearms Freedom Act ("MFFA" or "the Act"), which declares that a firearm or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words "Made in Montana" be "clearly stamped on a central metallic part." Id. § 30-20-106.
Will that dog hunt?  No.

If Barack Obama Had a Son...

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...would he look like Chris Lane?

No, he wouldn't, because Chris Lane was guilty of walking while white.  His for-kicks murder by a couple of black hoods is therefore snooze material for our ostensibly ever-so-compassionate  --  but actually not-all-that-compassionate-at-least-if-you're-white  --  Liberal Elite, starting right at the top with Mr. Smooth.  

The story I put up in my last entry has an eerie and discomfiting echo of the Trayvon Martin case.  That, you will remember, was the locus of a huge amount of still-percolating anger. The anger ignited because a white/Hispanic man killed an unarmed black teenager, but was acquitted after he made a perfectly plausible case of self-defense the state failed to rebut. 

Today's story of two blacks fatally shooting a white man in the back features no whisper of a legitimate defense; it was ambush murder, plain and simple. By any neutral standard, then, it has to be more reprehensible than the Trayvon Martin homicide.  But you'll hear not a mummer of outrage from those who (drum roll here) Demand An Honest Discussion about Race.  The Demand, you see, hoves into view only when it's time to stage a combo Morality Play&Tupperware Party to "oooooohh" and "aaaaahh" over the eighteen zillionth depredation of the White Devil. 

Just so we'll understand:  Our liberal masters want that honest discussion about the implications of inter-racial murder only up to the point that it actually IS honest, after which you better shut your mouth.

Guns Don't Kill People

The title of this post is the title of an opinion piece in, of all things, the University of Washington student newspaper.  (The piece is two years old, but timely considering the renewal of the gun control debate).

The most dreadful murderers in our history did not use guns  --  Osama, McVeigh, John Wayne Gacy, Ted Bundy, Ted Kaczynski, Jeffrey Dahmer, the "BTK killer" (Dennis Rader)  --  I could name quite a few more.

I have made this point before, but this seems an apt time, in a horrible way, to re-emphasize it, in light of today's bombing murders at the Boston Marathon.

Controlling guns may well, to some extent, be part of the answer.  But we are simply deluding ourselves if we think the main answer is anything other than controlling criminals.  If we fail, through hand-wringing, diversionary thinking, political agendas, delusional self-blame, or any other excuse, we will continue to invite what we saw this afternoon.

UPDATE: Having been informed that the link doesn't work, I have copied the piece and have put it after the break.

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