Trump and Thomas on guns, after Parkland

Gun law and policy dominated much of this past week’s news.  While the President expressed interest in supporting new measures, he also returned to some of the more extreme gun rights rhetoric that we saw during the campaign.  Meanwhile, little-noticed, another Second Amendment voice emerged.

During the presidential campaign, then-candidate Trump took positions on gun rights that call into question the reliability of his views (his campaign website links to gun policy are now gone, but see the contemporaneous reporting here and here).  He apparently believed that “law-abiding people should be able to own the firearm of their choice.  The government has no business dictating what types of firearms good, honest people are allowed to own.”  Although he asserted that current laws should be enforced, he also objected to gun bans.  I covered this ground during the campaign, noting the incoherence of his position.

The President announced this week that he has directed the Attorney General to craft regulations making bump fire stocks unlawful.  Set aside for the moment that a President who has boasted about undoing the regulatory state is now pushing new regulations (rather than legislation, which he could recommend).  The idea appears to be based on the proposition that the accessory functionally turns a semiautomatic weapon into an automatic one (a “machine gun”), and thus into a weapon that is already banned.  See 18 U.S.C. 922(o).  Whether done through new legislation or a new regulation, effectively, the President is now supporting a ban on a specific type of firearm, which differs markedly from the line that he peddled during the campaign.

The President also stated this week that he was open to legislation expanding background checks for firearms purchases (NYT coverage here).  During the campaign, as reported, Trump criticized efforts to expand background checks, saying that we should not expand a broken system and even promising to undo President Obama’s executive action on background checks (see here).  Perhaps his tepidly-expressed support this week will depend upon the specifics of forthcoming legislation.  But the real test of the President’s mettle on this issue will come when he is asked to back a measure that the NRA does not support.

Finally, he endorsed the idea of arming school teachers and staff (see WaPo here).  This idea may be worthy of consideration, but it is not a gun restriction. It will not reduce the number of guns available, nor would it likely deter many school shooters (e.g., those who expect, even hope, to be killed during their attack).  Moreover, whatever the merits of the idea with respect to school safety (and there are some), it is hard to see how this idea would protect Americans from gun violence in places that are not schools, or how it will help to curb gun trafficking, or gun crimes committed by street gangs or other criminal organizations that regularly employ and stockpile firearms, including military-style weaponry.

Another strong gun-rights view, however, appeared this week and was largely ignored.  Earlier in the week, Justice Thomas issued an opinion dissenting from the denial of certiorari in Silvester v. Becerra, a Second Amendment case involving the constitutionality of California’s 10-day waiting period for existing gun owners.  Repeating assertions he has made in earlier cases, Justice Thomas lamented the Court’s treatment of the Second Amendment, referring to it as a “disfavored right” and a “constitutional orphan.”  He correctly noted that the Court has not heard argument in a Second Amendment case in eight years, and has not granted a case assessing the constitutionality of a gun law in 10 years (since D.C. v. Heller).

Obviously, Justice Thomas’s several pleas to this effect have not persuaded the Court.  In fact, I wonder whether recent events will further dampen the likelihood that the Court will show interest in reviewing gun restrictions in the near future.  But his observations demand attention.  After all, it only takes four votes to grant.  So the question now is: will the Chief Justice and Justices Thomas, Alito, and Gorsuch ever agree on taking a new Second Amendment case?  What’s holding them back?

Since Heller, gun rights have become significantly liberalized in many states.  The practical effect of liberalization is that, even if courts restrict Second Amendment rights, the states remain free to keep gun rights broader than they would be pursuant to the Second Amendment.  Of course, Congress could mitigate some of this liberalization with federal legislation.  The most meaningful fights over gun rights therefore may not be found in Second Amendment litigation in the courts, important though that litigation may be.  Rather, the most meaningful battles may well be in Congress and in legislative bodies around the country that have seen fit to liberalize gun rights.  Still, close and pervasive gun regulation exists in America, and it is that regulation that is the subject of so many Second Amendment challenges.  Problem is, is this the right time for the Court to consider striking down gun regulations?

The mere fact of a political battle over individual rights does not necessarily mean that courts will stay on the sidelines (consider, for example, the same-sex marriage issue).  And rights are meant to be safe from the whims of political majorities.  Still, for now, perhaps the Court is content to leave its substantive Second Amendment jurisprudence where it stands after Heller, and leave the remainder to the political process, state constitutional law, and federal courts.  But if that is true, would it not prove Justice Thomas’s point?

One of Heller’s virtues was its recognition that Second Amendment rights are not unlimited; that a Nation devoted to the possession of guns for lawful self-defense and defense of others can also be a Nation where those same guns are sensibly regulated.  Imagine that, rather than avoiding the matter, the Court granted multiple Second Amendment cases and simply read Heller narrowly, clarifying the standard of review and applying it to protect most gun regulation.  That may not please Justice Thomas, and it would certainly result in amplified calls from some gun-rights advocates for appointment of “pro-gun” judges.  But a more fully developed Second Amendment jurisprudence could be helpful to the ongoing political debate about gun rights by clarifying the scope of the Constitution’s protection.

Indeed, a more fully developed Second Amendment case law could (depending upon its direction) have the effect of making absolutist Second Amendment rhetoric even less acceptable, pushing extreme gun rights talk further into the fringe and easing the legal path for sensible new criminal laws to prevent and punish gun violence.  That result would prove even more powerful if it came from the Court’s conservatives.  And for his part, the President could abandon his own loose rhetoric and return conservatism to its more natural place of balance, away from the extreme: that is, a decent respect for the tradition of gun rights tempered with a recognition that sensible gun regulation bears an important relationship to controlling crime and violence.

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Can the federal felon-in-possession ban violate the Second Amendment?

In District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation.  But the Court was careful to limit that right.  It did not invalidate, the Court explained, restrictions on the commercial sale of firearms, or on possession in sensitive public places, or of “dangerous and unusual weapons.”  Nor did the Second Amendment cast doubt on “longstanding prohibitions” on possession by “felons and the mentally ill.”  Yet, this week, the United States Court of Appeals for the Third Circuit held that in some limited circumstances, as applied, the federal felon-in-possession ban is unconstitutional under the Second Amendment.  The opinion in Binderup v. Attorney General is here.

It is a remarkable holding – no federal court has previously held the felon-in-possession ban unconstitutional – and a deeply divided one.  The en banc court split 8-7, with 3 judges writing the lead opinion and 5 judges in the majority writing separately.  The slip opinions total 174 pages.  Eugene Volokh has a good breakdown of the case here, helpfully discussing the rationales of the different voting blocs.

The case involved two lead plaintiffs who challenged the constitutionality of 18 U.S.C. 922(g)(1), the so called “felon-in-possession” law that makes it a crime for a person to possess a firearm where that person has been convicted of a crime that is punishable by at least a year in prison.  There are some exceptions, such as if a state law punishes the crime by 2 years or less and classifies it as a misdemeanor, or where the conviction has been expunged, or set aside, or where the person received a pardon, or where the person’s civil rights had been restored by law.  See 18 U.S.C. 921(a)(20).

To summarize, according to the court’s description of these cases, Daniel Binderup had a consensual sexual relationship with a 17-year-old co-worker (Binderup was 41).  Although the girl was over the legal age of consent for sex in Pennsylvania, Binderup was nonetheless convicted of the misdemeanor of corrupting a minor.  That offense is punishable by up to five years imprisonment in Pennsylvania.  Binderup, though, received three months probation and a $300 fine.  He has no other criminal history.

Julio Suarez had a previous conviction in Maryland for carrying without a license.  That offense was a misdemeanor, punishable by no more than 3 years.  Suarez received a year of probation, a suspended jail term, and a $500 fine.  He now lives in Pennsylvania, and is a government contractor with a “Secret” security clearance.

Both men are now allowed to possess guns under Pennsylvania law, having successfully petitioned for restoration of their gun rights.  But 922(g)(1) still bars them from possessing guns as a matter of federal law, because none of the statutory exceptions applies to them and the Attorney General did not grant them relief.  So they challenged the validity of 922(g)(1) as applied to them, saying that the ban prohibits them from purchasing firearms for self-defense.  They each prevailed in their respective district courts on their Second Amendment claims, and the cases were consolidated at the Third Circuit.

The entire set of opinions is worth reading, but here is the summary of what is now the law of the Third Circuit, found at page 40 of the lead opinion.  According to the court, first, as-applied challenges to the felon-in-possession ban, under the Second Amendment, are still reviewed under the two-step framework from the court’s earlier decision in United States v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010).  Second, as to the first step, the challenger must prove that the challenged law imposes a burden on his Second Amendment rights.  Third, the challenger must have no convictions involving a serious crime.  Fourth, rehabilitation or likelihood of recidivism is irrelevant.  Fifth, the “considerations discussed above” will determine whether the underlying crimes are serious ones.  And sixth, once the challenger has satisfied step one, then the Government bears the burden of showing that the law survives intermediate scrutiny (a substantial relationship to an important government interest).

Because of the nature of this holding, and its significance to many convicted persons who may wish to own a firearm but are unable to do so, I suspect this may finally be a case in which the Supreme Court has some interest.  I have noted before that the Court’s failure to take any cases since Heller has created substantial confusion among lower courts as to the proper standards to apply in a Second Amendment challenge.  This case has many of the ingredients that should appeal to the Court: it breaks with other federal circuits, was decided by a fractured en banc court, involves a matter of federal constitutional law, and concerns a matter of substantial public importance.

But before we get too excited about this case receiving a cert grant, a caveat is in order.  This holding would not apply, it appears, to felons.  Binderup and Suarez are misdemeanants, not felons, because that is the label that state law gave to their offenses.  As the lead opinion noted, the “misdemeanor” label generally conveys a lack of seriousness, but the same cannot be said of offenses labeled as a “felony,” even if the available term of imprisonment is comparatively short.  This case, then, does not protect those offenders whose crimes of conviction are presumptively serious (as “felonies”), though note 6 of the lead opinion states that such a challenge may at least be theoretically possible after Heller (though the same note also explains that the challenger’s burden in such a case would be “extraordinarily high – and perhaps even insurmountable”).  As to what constitutes “seriousness” (point 5 of the lead opinion’s summary of the law of the circuit), though there was disagreement on the court, the lead opinion also looked to whether the crime was violent or involved force or the threat of force, whether the ultimate sentence was comparatively minor, and whether there is some “cross-jurisdictional consensus” about the seriousness of the underlying conduct.

So the question is open: when, if ever, can a person with a felony conviction have a Second Amendment right to possess a firearm?  That is, which previous crimes are so serious as to warrant the conclusion that the person is not a virtuous enough citizen to be entrusted with the possession of a firearm?

An equally interesting scenario, though perhaps highly unlikely, would exist if Congress considered amending the statute to either more narrowly define the types of offenses that qualify for the ban, or to at least exclude misdemeanors of a certain kind (e.g., those that do not involve force or violence).  One might imagine that a Congress protective of gun rights, and of a broad interpretation of the Second Amendment, might be inclined to narrow the scope of federal gun control laws – and there are few federal gun control laws with more prosecutorial potency than the felony-in-possession statute.  But I suspect that congressional tinkering with the gun possession statutes will not happen, even in this Congress, particularly if Congress feels that federal courts are now in the business of narrowing the reach of the statute through constitutional litigation.

Can medical marijuana card holders buy or possess guns?

Following up on my last post – which dealt with the Ninth Circuit’s decision on the Justice Department’s power to proceed with criminal prosecutions under the Controlled Substances Act, in light of an appropriations rider defunding some such prosecutions – the Ninth Circuit yesterday issued another important decision on federal criminal laws related to drugs, this time in the context of federal gun law.  The decision in Wilson v. Lynch is here.

It is a federal crime for an unlawful drug user or addict to possess a firearm.  18 U.S.C. 922(g)(3).  It is also a federal crime to sell a firearm to a person with knowledge, or reasonable cause to believe, that the person is an unlawful drug user or addict.  18 U.S.C. 922(d)(3).  It is further unlawful to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance (like marijuana).  21 U.S.C. 841(a).

According to the court, Rowan Wilson was issued a Nevada marijuana registry card under Nevada state law.  But when she went to purchase a gun from a gun dealer in Nevada, the sale was denied on the ground that she was an unlawful user, or reasonably believed to be, of a controlled substance.  The seller was aware of the ATF’s Open Letter of September 21, 2011, which instructs firearms licensees that they cannot sell a gun to someone who is an unlawful user, even if state law allows use of medical marijuana.  Wilson filed suit against the Attorney General of the United States and the ATF, challenging the constitutionality of sections 922(g)(3) and 922(d)(3), as well as the Open Letter and the ATF’s implementing regulations (27 C.F.R. 478.11).

The Ninth Circuit held that she lacked standing to challenge section 922(g)(3) because she does not allege that she is an unlawful user or an addict, nor does she allege that she received or possessed a firearm, for which she would be subject to prosecution.  But the Ninth Circuit held that she had standing to challenge section 922(d)(3), because the legal standard under that statute prevented her from purchasing a firearm (and thus she was injured).  So the court proceeded to consider her constitutional claims on the merits.

The leading issue was whether the laws violated her Second Amendment rights.  The Court said it did not.  Binding precedent in the Ninth Circuit holds that the Second Amendment does not protect unlawful drug users.  See United States v. Dugan, 657 F.3d 998 (9th Cir. 2011).  However, the court took it as true that Wilson was not actually an unlawful drug user (she said that although she has a card, she has chosen not to use medical marijuana).  So the court could not apply its precedent as applied to someone like Wilson.

Instead, applying another circuit precedent, United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013),  that adopts intermediate scrutiny under the Second Amendment, the court said that the federal laws at issue did not severely burden the exercise of her right to possess a firearm; they merely prohibited the sale of a firearm to her.  The court further explained that recent research showed a “significant link” between drug use (including marijuana use) and violence, conclusions supported by the legislative branch, as well.  “It is beyond dispute,” the court said, “that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”  The court also said that such users are more likely to have “negative interactions with law enforcement officers” and to be connected to “black market sources who themselves frequently resort to violence.”

So, despite the fact that registry cardholders and unlawful users are not necessarily the same, there is at least a reasonable fit between the federal laws here and the Government’s interest in reducing gun violence.  Even assuming that such laws could lead to some burden on Second Amendment rights, those burdens are minimal, the court held.

The Court also denied Wilson’s challenges based on the First Amendment, the Due Process Clause and the implied equal protection component of the Fifth Amendment, and the Administrative Procedures Act.

One key to understanding the significance of the issues in this case is the court’s assessment of the links between marijuana use and violence.  Although this assessment could have been more comprehensive in the opinion, it is worthy of serious consideration, and undermines many of the arguments made by advocates of more liberal marijuana laws.  Another key, though, is the holding that Wilson did not have standing to challenge section 922(g)(3).  In holding that the challenged laws – 922(d)(3), the regs, and the Open Letter – did not severely burden her core Second Amendment rights, the court relied upon the fact that she could have amassed guns before getting her registry card, and that she could have surrendered her registry card later in order to buy a gun.  See Slip op. at 14-15.  But the point of her challenge was to say that, as long as she is a registry card holder, she now cannot lawfully possess a gun for purposes of self-defense because of section 922(g)(3).  Is it, then, illusory to say that the sale provisions do not severely burden her rights, when she could not lawfully possess a gun anyway?  In other words, Wilson might say, while the sale ban in federal law might not have severely burdened her rights, the possession ban does.  Hence the importance of the finding that she did not have standing to challenge the possession statute.

Although the result may turn out to be the same – particularly if based on the link between drug use and violence and the reasonableness of the Government’s interests in forbidding gun possession by drug users – this question would at least be far trickier for federal courts if it is brought by someone with standing to challenge the possession ban of section 922(g)(3).

What does Trump really believe about gun rights?

As Donald Trump continues to demonstrate his predictable weakness as a presidential candidate, and as he becomes increasingly dogged by abysmal numbers in nationwide and swing state polls, he further confirmed his weaknesses and the claims of his critics yesterday with his remarks about Hillary Clinton, judicial appointments, and the power of the “Second Amendment people.”  Politico story here.  But in spite of all of the (legitimate) furor over these remarks, and others, Trump has actually received a pass from journalists and others on the substance of the Second Amendment.

People like me have tried to show that Trump is weak as a constitutionalist (which is to say, he is not one).  And yet the one provision of the Constitution that he mentions with some regularity is the Second Amendment.  Indeed, yesterday’s incident arose precisely in the context of Trump attempting to persuade the crowd that Clinton’s judicial appointments would be hostile to Second Amendment rights.  So the question necessarily arises: what are Trump’s views on the scope of those rights?  Just how strong of a defender of the Amendment is he?  What, if any, gun controls would he support?  Unfortunately, like all of his other views, it seems, his views on the Second Amendment are utterly incoherent – the stuff of sloganeering and bluster, but unaccompanied by much in the way of substance.  And yet no one seems interested in asking him precisely about his views, as a way of clarifying them, if nothing else.  If Second Amendment rights are as important as he seems to think, should we not have a better understanding of his views on this subject?

Because the Supreme Court held in Heller that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation, only the Supreme Court could reverse that decision and interpret the Second Amendment in some more limited fashion (e.g., that it only protects rights to keep and bear arms when connected to militia service).  And in order to do that, a case would need to arise in which some gun restriction was challenged as violating the Second Amendment.  Now, there are plenty of those kinds of cases out there, though the current Supreme Court seems mostly uninterested in them.  But this raises the question: how would Trump himself – much less his appointees – view the constitutionality of the gun law that would be at issue in such a case?  In order to know that – and the answer to that question could well inform his choice of judges – we would need to know more about how broadly, or narrowly, he views the Second Amendment.  He has never told us, though he claims to be “strong” on the Second Amendment.  In other words, how different really are Trump’s views on gun rights from those of Clinton, and how different would their judicial appointees be on these questions?

For example, does Trump believe that background checks are unconstitutional?  Does he believe that felons and the mentally ill should have Second Amendment rights to keep and bear arms (Heller says they do not: does he agree?)?  What about unlawful drug users?  What about service members who have been dishonorably discharged?  What about persons with misdemeanor convictions for domestic violence?  See Voisine v. United States (Thomas, J., dissenting).  Does he believe that it should be illegal to possess a firearm with an obliterated serial number, or is that unconstitutional?  Does Trump believe that the Second Amendment protects the right of a minor to possess a handgun?

His website demonstrates the incoherence of his views.  There, he claims what at first appears to be a remarkably broad understanding of the Second Amendment, and yet he says we must “enforce the laws on the books.”  What does that mean?  Are none of the “laws on the books” a violation of Second Amendment rights?  If he is willing to “enforce the laws on the books” – there are many – does that not mean that he supports substantial gun controls?  And how, if he does, would that go over with the “Second Amendment people” to whom he regularly panders?  His site also claims that gun and magazine bans are ineffective.  But are they unconstitutional?  What about the federal machine gun ban?

It turns out, these are critical questions for any presidential candidate who claims a belief in expansive Second Amendment rights.  That is because these questions each refer to federal gun laws that the president has the obligation to enforce – unless, of course, they are unconstitutional.  So Trump has a dilemma: if he believes that these laws violate the Second Amendment, surely he must refuse to enforce them and appoint judges who would strike them down, if challenged.  And yet, the president also must appoint the Attorney General, the Deputy Attorney General, the Assistant Attorney General for the Criminal Division, and the various United States Attorneys – all of whom play a role in the enforcement of these very federal gun laws.  So, will Trump’s law enforcement appointees enforce these gun laws (after all, he is the candidate of Law and Order, don’t you know), or will he only appoint people who will refuse to enforce them, on his orders, because the laws violate the Second Amendment?  Will he only appoint judges who declare their view that these federal gun control laws are unconstitutional?

Trump, and groups like the NRA, have tried to make gun rights an issue in the campaign.  (The NRA has this new ad up accusing Clinton of hypocrisy because she is surrounded by armed guards; it’s not clear how that makes her a gun rights hypocrite, as her Secret Service protection is a function of federal law.  Such an ad would make sense if, for example, Clinton acknowledged that she privately possessed a gun for self-protection but opposed allowing others to do so; that would be hypocrisy.  But that is not the NRA’s claim.).  Such a focus might have been useful in the primaries.  But in the general election, how does Trump benefit from an appeal to those with the broadest view of gun rights?  My sense is that those voters are already with Trump and highly unlikely to support Clinton.  He gains nothing electorally by clinging to a near absolutist position on gun rights.  If Trump wants to expand his support, he would be better served by appealing to those who support some gun controls.  But one of Trump’s major mistakes this summer has been assuming that the primaries and the general are indistinguishable.  Perhaps he believes that any expression of support for gun control will jeopardize his position with the most ardent defenders of gun rights in his base – even though he professes a desire to “enforce the laws on the books.”  Hence the incoherence.

Many are penning the first drafts of the Trump campaign’s obituary.  It is easy to see why.  I would be cautious, though.  For all of the pathetic whining that his campaign does about the media, it is hard to imagine a candidate who has ever benefited from media coverage the way that Trump has.  He is where he is today because of the media.  And the media, again, has given him a pass on so many problematic subjects, including his views on gun control and gun rights.  Three months is an eternity in politics, Clinton remains vulnerable, and it is not inconceivable that Trump could close the gap before the debates (more on that later).  So Trump’s electoral problems, while deeply serious now, may not yet be insoluble.  But his knowledge and preparedness problems almost certainly are.

 

Gun rights, criminal law enforcement, and Justice Thomas

The officer-involved shootings in Baton Rouge and Minnesota last week – combined with the premeditated, cold-blooded murders of five Dallas Police officers, with a firearm – remind us once again of the complicated legal and political issues created by gun violence.  In Dallas, it is notable that the killer did not target vulnerable people in a gun-free zone; he targeted law enforcement officers in public that he knew were armed, and trained to kill with their own guns.  In Baton Rouge and Minnesota – where we are still learning additional facts, making it premature to draw definite conclusions about the legality of the official conduct there – the legal issues are potentially even more complex because they concern the intersection of gun rights and Fourth Amendment law.  I have posted previously (here and here) on the Fourth Amendment issues being created by the liberalization of gun laws around the country.  One persistent problem involves the ways in which a broad reading of gun rights, combined with an accordingly narrow reading of search of seizure powers, could place law enforcement officers in the untenable position of knowing that a person is armed but lacking the power to temporarily detain and disarm them, absent some additional reasonable suspicion beyond the fact that the person is armed.

With that in mind, I want to shift to an interesting but slightly different gun rights problem, one that Justice Thomas raised at the end of the Supreme Court’s term.  In his dissent in Whole Woman’s Health v. Hellerstedt, the Texas abortion law challenge, Thomas writes that, “[t]he Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution.  But our Constitution renounces the notion that some constitutional rights are more equal than others.”  He continued, “[u]nless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

I am not sure to what he is referring when he speaks of “many” enumerated rights being disfavored, but I am confident he is referring to one in particular: the Second Amendment right to keep and bear arms.  I have such confidence because on the same day, in Voisine v. United States, Justice Thomas offered an even more comprehensive criticism of what he views as the disfavored nature of Second Amendment rights.  In Voisine, Thomas – speaking only for himself, as Justice Sotomayor joined only the first two parts of his dissent, but not Part III – explains that the federal law at issue has the effect of imposing a broad disability on gun ownership, a decision that is left to the discretion of federal and state prosecutors.  “We treat no other constitutional right so cavalierly,” he said, explaining  that a majority of the Court would likely not approve of a law that imposed a lifetime ban on publishing by a person convicted of misdemeanor libel.  He also repeated a line that he used previously in dissenting from the denial of certiorari in a Second Amendment challenge, saying that “the Court continues to ‘relegate the Second Amendment to a second-class right.'” (quoting his dissent in Friedman v. Highland Park).

What was especially notable about his Voisine dissent, though, was his observation about the limits on gun rights.  He acknowledged the limitations described in District of Columbia v. Heller, and appeared to concede that gun rights are not absolute.  But then he noted the broad disabilities approved in Heller – presumptively valid prohibitions on possession by dangerous persons, specifically felons and the mentally ill – and described this as merely dicta.  Apparently, Thomas would approve of narrow gun regulations that “neither prohibit nor broadly frustrate” the exercise of Second Amendment rights.  But the disabilities placed upon felons and the mentally ill, for example, are so broad that they would be valid only when applied to those who are not the “people” protected by the text of the Second Amendment.

Is Justice Thomas suggesting that the firearm possession prohibitions in 18 U.S.C. 922(g) – which impose broad disabilities on a wide variety of citizens, from felons to the mentally ill to unlawful drug users to persons dishonorably discharged from the armed forces to persons convicted of misdemeanor crimes of domestic violence – are unconstitutional?  Is he suggesting that one of the most important gun regulations in the federal criminal law arsenal – the felon-in-possession law – is invalid?  That strikes me as a remarkable position to take, especially in light of the fact that Thomas joined the Heller majority opinion.  But Thomas’s description of this language in Heller as mere dicta, and his concern that these kinds of gun regulations sweep so broadly as to forbid firearms possession “at all times and in all places,” certainly suggests that Thomas is thinking in these terms.

I will be interested in seeing whether future constitutional challenges to the 922(g) prohibitions make use of Thomas’s language from Voisine.  I cannot imagine there are any other votes on the current Court for such a reading of the Second Amendment.  Such a reading would surely frustrate the enforcement of much federal criminal law, and runs counter to the claims of many gun rights advocates who say they still want to “keep guns out of the hands of criminals” and other dangerous people.  Perhaps this is not what Thomas was getting at.  And perhaps he would approve of similar gun possession bans that are narrower in scope (say, a ban for a definite time period).  But his language seems at least to be a nod in the direction of Second Amendment rights that are broader than those recognized in Heller.

Still not coming for your guns

My last post was a plea to those on the political Right who are still open to being sensible: stop saying that President Obama is coming for everyone’s guns.  That’s nutty stuff.  Now, a plea to the news media.  Whenever you hear a Republican candidate say that the President is undermining or infringing the Second Amendment through his proposed executive action or other legislative proposals, please ask them: how?

I realize the news media doesn’t like to get into the weeds on constitutional matters – in part because of the perceived short attention span of news viewers who just want the McNuggets and then to move on, and in part because many reporters are not sufficiently knowledgeable about many constitutional issues – but this is important stuff.  Study it.  If Republicans are to accuse the President of willfully violating the Second Amendment, please ask them how he is doing so and what they believe the proper scope of the Second Amendment is.  In other words, if they want to make the Second Amendment a campaign issue – which is a perfectly legitimate issue to raise – then they should actually be prepared to discuss it substantively, not just to say the words “Second Amendment” so that everyone can cheer.

Ask them: do you agree with the Supreme Court’s decision in Heller, and if so, how do any of the President’s proposals violate the Second Amendment as understood in Heller?  Ask them: if you oppose expanded background checks because such a policy violates the Second Amendment, then how can you support any background checks?  Why would existing background checks be lawful, but new ones unlawful?  Ask them: if you oppose expanding the categories of people who are legally prohibited from possessing a firearm, do you also oppose existing criminal law that creates multiple categories of prohibited possessors?  Many candidates love to say that “we should enforce existing laws” but not create new ones.  Fine.  But this assumes the existing law is constitutionally valid.  So, then, I think they should have to explain why the existing law is also constitutionally valid but a new law would not be.

Maybe they will have answers to these questions, maybe they will not.  I hope they will.  But once a person accuses the President of something as outrageous as wanting to “take away your guns,” then I think the burden falls on the accuser to defend that accusation.  Until they either stop making the accusation, or speak more substantively about their understanding of the Constitution on this subject, don’t let them off the hook.  Of course, if their position is not based on the Second Amendment or on the (to be charitable) “confiscation” theory, but rather on their view that a particular proposal will not be effective, that is a different argument.  I know that many Republicans support things like a straw purchaser prohibition, felon-in-possession prohibitions, restrictions on guns for those with mental health problems, and other gun regulations.  In fact, rather than the goofy “he’s coming for your guns” line, why not just say that the President is wrong on the merits and that proposal X will not effectively address the gun crime problem and that we need to instead do Y and Z?  So the argument that new gun regulations would be ineffective is worthy of further examination, but different.

That, though, is not what I am hearing on the stump and in interviews.  I’m hearing candidates who are deeply reluctant to talk about gun controls that they favor, and instead are far more comfortable simply toeing the absolutist line and invoking – without any further explanation – the Second Amendment.

He’s NOT coming for your guns

I have often worried that too many Democrats, and those on the political Left generally, too often make the error of devaluing legitimate uses of guns.  They minimize, in particular, the possibility of using a gun in lawful self-defense against an aggressor who is reasonably believed to threaten deadly force, seeming to treat this as some kind of mythical creation of a gun-obsessed culture.  Republicans and others on the political Right, by contrast, often err by focusing exclusively on lawful uses of guns without adequately acknowledging the threat of gun crime, and of the dangers to tolerable order that gun violence creates.  They shift the focus to mass shootings and mental illness, but too often ignore day-to-day gun violence that typically goes without much national media attention, and typically has little connection to mental illness.

But some gun rights supporters also commit a deeper error: the error of absolutism.  This narrow category treats any serious conversation about violence committed with guns, and the need to address it through public policy, as some kind of conspiratorial incursion upon lawful gun ownership, clinging instead to what appears to be absolute (or near absolute) opposition to gun regulation for fear that an inch of regulation will ultimately mean a yard of confiscation.  Oh, they may tell you that “criminals” should not have guns.  But it gets trickier when you ask: how do you know, ahead of time, who the criminals are?

On cue, and in light of President Obama’s push for more gun regulation, prominent Republicans and others on the Right have lately been tossing around one of their favorite talking points: that President Obama is on a mission to take away everyone’s guns.  Ted Cruz posted a banner on his campaign website, “OBAMA WANTS YOUR GUNS.”  Donald Trump told an audience that the President was preparing an executive order “to take your guns away.” Chris Christie on Morning Joe yesterday, when asked by Mike Barnicle whether the Obama Administration was intent on “coming after people’s guns,” said: “Yeah, sure, of course they are.” Governor Christie’s statement was especially disconcerting, as I do not normally think of him as championing this kind of stuff.

A plea to the candidates and others on the Right: please, stop saying this.  There is zero evidence – zero – that the President has any interest whatsoever in adopting any policy that involves confiscating the guns of people who are legally entitled to possess them.  Perhaps this isn’t quite birther-level stuff.  But it is certainly not too far from that level of absurdity.  It doesn’t make you look like a strong defender of “liberty,” and it certainly doesn’t make you conservative.  It makes you look like a crackpot.  So stop it.

I realize the “base” gets all fired up when they hear this.  But lying to people just because it makes you more popular, and inflames their hatred of your opponent, is not the stuff of presidential leadership. And it is not part of any standard of good government that we should be modeling.  Wanting to regulate guns, and to make it more difficult for potentially dangerous people to get them, is not the same thing as adopting a general policy to literally take guns from people who have a lawful right to possess them.  And I have never seen any Republican give one example – not one – of an Obama Administration policy that does so.  Barack Obama has been in office for seven years.  Seven years.  And yet, no confiscation, even with his extravagant understanding of presidential power and, at one point, solid Democratic majorities in both houses of Congress.  Millions of people, seven years later, continue to enjoy lawful gun ownership.  So please, stop it already.

How did people who call themselves “conservatives” end up here?  Is the desire to satisfy a political constituency that believes in virtually absolute gun rights so strong that it produces this kind of intemperate demagoguery?  What about a desire to satisfy a political constituency that believes in gun ownership for hunting and lawful self-defense but that also believes in sensible regulation of guns and gun ownership – do those folks matter?  I suspect there are more of the latter than the former.  But in Republican primaries, maybe they just don’t stand out.  After all, in a Party that has been slouching toward ideological purity rather than the prudence and sober judgment of conservatism, the loudest and angriest person in the room seems to prevail.