Friday, April 28, 2017

20th Annual Firearms Law Seminar - Stephen Holbrook

The NRA's excellent Annual Firearms Law seminar has been held for 20 years now, helping to educate attorneys (and its open to the public) about firearms law matters.

Stephen Holbrook spoke on Second Amendment Litigation: Ongoing Challenges.

Holbrook is a brilliant lawyer and prolific writer on Second Amendment matters. He gave a quick summary of how we've gone from a judiciary taking a collective rights view to the individual right affirmed in Heller in 2008. That it was 5-4 decision shows how close it was. He noted that Justice Ginsburg and the now retired Justice Stephens still want Heller to be overturned.

Then he summarized Macdonald case applying the 2nd Amendment to the states through the due process clause of the 14th Amendment and it is not second class right.

Opponents claim its a dangerous right but so is the First and Fourth Amendments.

He stated the lower courts have been engaged in active resistance against the Supreme Court's decisions and not use normal jurisprudence review and application when dealing with firearms rights but instead have sought any rationale to maintain anti-gun laws.

He noted the cases now are coming from gun unfriendly states such as New York and elsewhere where the judges in those circuits are used to restrictions and the banning of firearms and against a firearms culture.

He noted that DC is still very much against individual ownership and have been placing as many hurdles in place as possible such as registration that must be renewed every three years and no more than one a month may be registered - ostensibly to stop illegal gun traffickers from registering too many firearms they illegally traffic in - yes that doesn't make any sense but that is the rationale they gave.

On the assault weapons ban decision the court ignored sworn testimony and instead went with the Brady Campaign's unsworn testimony that assault weapons are designed to be fired from the hip based on the pistol grip even though all the sworn testimony was contrary to that and then other courts are following along with that ridiculous testimony as established fact. Gun-unfriendly courts have since been dodging the Supreme Court's lawful and common usage test. Intermediate scrutiny have been used to weaken the Supreme Court's ruling.

In Colby case in Maryland the Appellate court ordered them to apply strict scrutiny but then noted that civilian rifles not used by any military in the world can be banned because they're for military use. He noted there's no real basis for the characteristic test, but the Judges are still applying the tests that don't make any rational sense.

Mr. Holbrook noted the death of Scalia caused a serious imbalance on the court that has slowed down pro-firearms cases as it has been too risky to bring them to the Court.

Maryland Supreme Court and 4th Circuit in their decisions have basically stated that there's no right to bear arms outside the home unless the government says you may and they won't change their decision unless the Supreme Court directly instructs them otherwise all upheld on the basis of intermediate scrutiny.

He noted there's some positive areas coming forward on Federal disabilities such as the lifetimes ban on owning firearms if you've even been committed to a mental institution ever in their lives. Noted a person committed for a few days thirty years ago in the midst of an ugly divorce was banned from owning guns forever and 6th Circuit noted you cannot be banned for life unless you're an actual danger to yourself or others.

He noted multiple firearms cases have had cert denied since Heller and Macdonald. San Francisco law held could only have a loaded firearm in the home if it was on your person, 9th circuit upheld and the Supreme Court denied cert and Thomas and Scalia dissented from the denial.

Then the 7th Circuit upheld Highland Park's ban based on it made people feel better than the ban was in place but cert was again denied Thomas and Scalia again dissented from the denial. Then after Scalia died in the case of Catano v. Massachusetts the Supreme Court then remanded it to reconsider but Thomas and Alito both said should have reversed as the law was unconstitutional on its face and while charges were dropped the prohibition law is still on the books.

He noted Garland likely would not have been good for firearms rights based on past performance.

He noted that Gorsuch's past decisions including his criticism of Chevron deference and his opinions on other Second Amendment decisions are very good signs for firearms rights.

As always he gave an excellent and informative presentation.

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