Does The 2nd Amendment Protect Carrying A Gun Outside The Home?

While my friends in the gun-control community continue to go ga-ga over something as silly and unimportant as plastic guns, a decision just came down from the 9th Circuit Federal Court which could have a much greater impact on the whole issue of gun violence and how America will and will not regulate guns.  I am referring to an appeal brought before the Court by a resident of Hawaii, George Young, who was denied an application both to openly a gun as well as to carry the same gun concealed.

glock1             Basically, what the Court said in a 2 – 1 opinion, was that the State of Hawaii couldn’t have it both ways. Either they had to let Young carry a weapon outside the home openly, or they had to let him carry his weapon concealed. But to deny him any ability to leave his home armed was to deny his 2nd-Amendment ‘rights.’ The Court found that Hawaii’s statute denying carrying of weapons except in cases of engaging in ‘protection of life and property’ was too vague and could not sustained under current 2nd-Amendment interpretations, up to and including the Heller decision rendered in 2008.

In fact, Scalia’s 2008 Heller opinion specifically avoided the issue of carrying a gun outside the home, because the D.C. law which Heller appealed only dealt with whether or not a resident of the District could keep a loaded, self-defense gun in the home. The relevant section in the 2nd Amendment is the phrase, ‘keep and bear arms,’ with decisions since 2008 coming down on both sides of this issue when deciding whether ‘keep’ and ‘bear’ refer to only inside the home or outside the home as well.

If you go back and read Scalia’s Heller opinion, what I find interesting is that virtually the entire 20,000-word text is devoted to historical and legal discussions about the words ‘keep’ and ‘bear.’  On the other hand, the word ‘arms’ is given very short shrift, Scalia dispensing with it altogether by noting that modern military weapons, like an M-16 rifle, could lie outside of 2nd-Amendment protection because such a gun isn’t commonly found in the home (page 54 et. seq.) In other words, for purposes of defining the types of weapons which fall under 2nd-Amendment ‘rights,’ Scalia is basically saying that a gun used by the military may, in fact, be what he calls a ‘dangerous and unusual’ weapon, which should not be owned by civilians at all.

If my friends in the gun-control community decide to appeal the 9th Circuit’s ruling, which I’m sure they will, and/or if the issue of 2nd Amendment protection for carrying a gun outside the home finally arrives at the doorstep of the Supreme Court, perhaps some consideration might be given to looking at the whole issue not from the point of view of prohibiting or regulating the behavior of people who own guns, but rather, in terms o the lethality of the guns themselves.

Because it just so happens that if we define a gun not in terms of whether it can be found in a gun-owner’s home, but rather in terms of whether the gun was designed for military use and is used by the military today, then all of a sudden, the whole question of what constitutes a gun whose existence in civilian hands is covered by the 2nd Amendment begins to change.

The fact is that the most popular handgun in America – Glock – was designed specifically as an army gun and is carried by troops in the field, including U.S. troops, all over the globe. Ditto the guns manufactured by Sig, whose M17 model just became the official sidearm of the Regular Army of the USA.  Ditto the Beretta M9, the list goes on and on.

The reason that other advanced countries don’t suffer our level of gun violence is because they recognize that arms designed for the military are too lethal to be in civilian hands. How come this issue never seems to be arise when my friends in the gun-control community decry the violence caused by guns?

 

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Does the 2nd Amendment Guarantee A Right To Self Defense? The Courts Disagree.

The NRA keeps referring to the 2nd Amendment as a “sacred” right, but I always thought that anything sacred was usually somehow given to us by God.  But in fact, the right of Americans to own guns without any connection to some kind of military unit didn’t come from God at all. It came down from a 2008 Supreme Court decision that was decided by one vote.  And in fact, the NRA was reluctant to push the Heller case to the Supreme Court because it looked probable, if not likely, that Justice Kennedy would swing over to the liberal side of the nation’s highest tribunal and that would be the end of that.

scalia                Immediately after Heller, various pro-gun groups began challenging state and local laws which allowed for private ownership of guns, but made the licensing process so onerous or arbitrary that owning a gun was difficult enough, using it for self-defense, particularly self-defense outside the home, was basically a non-existent right.  In Washington, D.C., the U.S. District Court ultimately found the city’s license requirements unduly restrictive, but in California, a fairly restrictive process in San Diego County for the issuance of concealed-carry licenses was upheld.

This past week another California gun case made it all the way to the Supreme Court, but by a 7-2 margin, Kennedy, Alito and Roberts all moving to the other side, the Court refused to hear a case from San Francisco whose law states that “no person shall keep a handgun within a residence owned or controlled by that person unless the handgun is stored in a locked container or disabled with a trigger lock.” The law was challenged by, among others, an “elderly lady” who believes that she could never defend herself against an intruder if she had to “find her glasses, turn on the light, find the key to the lock box, open the lockbox….”  If this isn’t a civilian version of the Keystone Cops, I don’t know what is.

The Ninth Circuit admitted in its ruling upholding the law that it was creating a “burden” on the core right of the 2nd Amendment, but it found this burden to be outweighed by the evidence presented by the City of San Francisco that “guns kept in the home are most often used in suicides and against family and friends rather than in self-defense and that children are particularly at risk of injury and death.”  Uh-oh, here comes all that public health research by Kellerman, Hemenway and others about the risks of unlocked guns rearing its ugly head in a federal court.  The pro-gun folks have lavished no end of expense and energy trying to discredit such research, and what they got for their efforts was the research was used to justify a limitation on their most sacred right.

The plaintiffs in this case, of course, produced some research of their own, which consisted of data from the Department of Justice showing that 60% of all home robberies take place between 6 P.M. and 6 A.M., precisely the period when people might be sleeping and their need for self-defense is “most acute.” But there’s only one little problem with this data because it also shows that only 1-2% of all forcible home robberies resulted in serious injury to someone present in the home, which means in terms of real numbers that only 10,000 individuals nationwide might have needed to defend themselves against a criminal assault.

The next case which might be reviewed by the SCOTUS involves a challenge to the San Diego law which makes it difficult for anyone to carry a concealed gun for self-defense.  Let me give the plaintiffs in that case a little free advice:  I wouldn’t push the self-defense argument too far even if Scalia used it as the basis for Heller in 2008. What the SCOTUS recognized in that decision was the fact that 300 million guns are floating around in civilian hands.  But that’s not the same thing as saying that every pair of those hands can walk around with a gun.

 

 

They Finally Get A Chance To Carry A Concealed Weapon In California. Or Do They?

Back in February, the 9th Circuit in California ruled that the state’s concealed-carry law was unconstitutional, a ruling which was hailed by the NRA and other pro-gun groups as a “major victory” in the campaign to extend the 2nd-Amendment ownership rights defined in the 2008 Heller vs. DC decision to carrying a gun outside the home. But while the judicial panel’s initial decision was stayed pending appeal to the full 9th Circuit (whose action may then result in the SCOTUS finally deciding whether the 2nd Amendment extends to CCW,) the court let stand the part of the law which allows the sheriff in each California county to set concealed-carry rules. Most of California’s counties, including San Diego, which challenged the current law, have decided to wait and see how the whole legal issue plays itself out.  But Orange County began accepting CCW applications immediately after the 9th Circuit ruling and has been, according to County Sheriff Sandra Hutchens, “overwhelmed” with the demand.

Sheriff Sandra Hutchens

Sheriff Sandra Hutchens

Notwithstanding the fact that crime in Orange County has declined by 20% over the last ten years, it appears that most of the demand for concealed-carry permits is being driven by the conviction that walking around with a gun will make people feel more safe.  At least this is what the Orange County Sheriff says, and she should know since she has hired 15 part-time workers to handle the administrative load and the waiting time for the required interview that must precede issuance of the permit is now out to 30 months.

Wait a minute!  A “required” interview before the license is issued?  I thought that the 9th Circuit’s panel found California’s CCW law unconstitutional because it was only granted if an applicant could convince the police that carrying a concealed weapon was a necessity for business reasons or documented proof of the need for personal defense.  And when Orange County started accepting CCW applications, the Orange County Register stated that a permit would now be issued if a county resident simply stated that they needed to carry a gun for “personal safety,” without requiring any documentation of this claim at all.

So I decided to do what nobody ever seems to take the trouble to do whenever a law is passed regarding guns, namely, I actually read the text that defines the Orange County application process itself.  And the process is as follows.  In addition to the usual background check, fingerprints and let’s not forget the $200 fee, the applicant must also provide “documentation” that “good cause” exists for the license based on the following criteria: (1). “Specific evidence that there has been or is likely to be an attempt on the part of a second party to do great bodily harm to the applicant;” (2). “The nature of the business or occupation of the applicant is such that it is subject to high personal risk and/or criminal attack;” (3). “The occupation or business of the applicant is such that no means of protection, security of risk avoidance can mitigate the risk other than the carrying of a concealed firearm.”

There are a couple of more issuance criteria listed on the sheriff’s website but I think you get the point.  Sheriff Hutchens may say that she’s going to issue a license to everyone who says they want one, but Orange County is not about to deprive their law enforcement authorities from having the last word on who shall and who shall not walk around with a gun.  Which is hardly the same thing as saying that anyone who wants CCW will get it just by showing up at the police department with a clean background and a $200 check.

If the argument over whether the 2nd Amendment covers CCW ever gets to SCOTUS and if gun-nut Scalia writes another decision which cites the new California law as a valid protection of gun-ownership rights, the Brady Campaign and Shannon Watts will be able to arouse their followers over this NRA threat to safety, but the truth is that the law doesn’t really change things at all.  But what laws actually say never seems to concern either side in the gun debate. It’s a lot more fun to yell and scream than to sit down and figure out what, if anything, should really be done.

They Keep Standing Their Ground In Florida And People Keep Getting Shot

Last week Michael Dunn, a dapper, 47-year old software engineer was hoping that his trial would end up the same way as George Zimmerman’s trial ended up but no such luck. Even if he’s never convicted of killing Jordan Davis, he could end up being sentenced to 60 years in jail because the jury decided that the fact that he kept shooting at the truck as it pulled away from him meant that he was trying to kill the other passengers who, it turned out, were armed with nothing more than big mouths.

What probably cooked Dunn’s goose, in addition to the forensic evidence which indicated that Davis was shot while sitting in his vehicle, not, as Dunn claimed, after he got out of the truck and came towards him in a menacing way, was the fact that he drove away from the scene, spent the night in a motel and then drove back home before contacting anyone to talk about the incident.   Not much different, when you stop and think about it, from the way that Curtis Reeves, the 71-year old ex-cop from Tampa pulled out a gun, shot and killed Chad Oulson in a movie theater and then calmly sat back down and waited for the cops to walk in, surround him and take away his gun.

10734Even the National Rifle Association, which champions the ‘stand your ground’ law that has been cited by lawyers both for Dunn and Reeves, draws the line when it comes to how someone should behave if they defend themselves with a gun.  Their course books on self-defense both in and outside the home specifically advise that anyone who is involved in a shooting incident should remain on the scene, contact law enforcement, separate themselves from any weapon, and make sure that they clearly state their name and their reasons for calling 911.  

In both the shootings in Florida, Dunn and Reeves didn’t follow any one of those rules.  Neither contacted law enforcement directly after the incident, neither separated themselves from their guns, neither did anything that would have indicted even their awareness that something like an emergency existed based on what they had done.  Dunn not only waited more than 24 hours to contact anyone, but that gave him enough time to concoct a phony story that even his fiancee, who was on the scene, couldn’t support when she took the stand.

I’m beginning to wonder whether we have any idea about what’s at stake when we give civilians the right to walk around with a gun. Just this week the 9th Circuit in California ruled that the state’s concealed carry law violated the 2nd Amendment because it denied  residents the ability to carry a gun outside the home.   And while it will ultimately be up to the Supreme Court to decide whether the 2nd Amendment really does apply beyond the limits of one’s residence (in fact the Heller decision speaks only to possession of firearms within the home) the bigger issue is how we behave once the Constitutional right to self-protection is actually invoked.

Because we can talk and argue all we want about whether Americans are safer if everyone walks around with a gun.  But once the gun appears and the trigger is pulled, then what happens has nothing to do with the Founding Fathers.  It’s all about something called common sense and nobody should be protected by the Constitution if they fail to understand what that’s all about.