Friday, April 26, 2019

NRAAM Firearms Law Seminar Part 1

To start the 22nd Annual Firearms law seminar, Professor George Mocsary gave a presentation on Perceiving and Measuring Judicial Defiance of Heller

In short, Heller is being underenforced if not ignored by the lower courts.

Notes that revocation of CPLs nationwide is around 1 in 10,000 so CPL holders are extremely law abiding.

Massachusetts is particularly bad with a one year mandatory minimum for carrying an unlicensed firearm for an otherwise law abiding citizen while at the same time the courts there regularly give rapists probation and suspended sentences.

Assault weapons term created by Josh Sugarman when Americans were not interested in banning handguns and take advantage of the general publics ignorance.

Notes that there are tens of millions of AR15s in existence not being involved in crime.

A Duke Law Journal study looked at 997 opinions on 2nd Amendment challenges and found that intermediate scrutiny challenges were somewhat working, and the typical 2-part test was adopted in a minority of challenges. 2nd, 4th, and 9th Circuits saw higher success rates for challengers of gun regulations which may indicate gun laws in these areas are often so indefensible, such as in the 2nd Circuit the defining of a pump-action shotgun as a semi-automatic weapon - really. Otherwise more substantive challenges on less facially insane laws tended not to succeed.

His study statistically shows Heller is being under-enforced by the courts.

Lower court decisions in Drake and Caetano cases were outright defiance of Heller.

He noted to expect judges to start masking their defiance and dislike of the Second Amendment in their analysis with lots of pretextual arguments. Lots of cases claim to apply heightened scrutiny but then applies a rational basis test against the requirements of Heller. Courts are also improperly reversing the burden onto the Plaitniffs rather than the government which is required under heightened scrutiny.

In short, the courts are still not taking Heller and the 2nd Amendment seriously.

David Thompson went next with a presentation titled A Survey of Current Second Amendment Litigation - including the new U.S. Supreme Court Case, NYSRPA v. City of New York

He noted far too many courts have rubber-stamped bans on carry and semi-automatic firearms, taxes, bans on 18-21 year olds purchasing.

He stated Carriage is a critical issue. There are 250,000 Americans attacked every year by 4 or more individuals and carrying is the only effective defense.

Gave an example of a 71 year old female Mary Sheppard who had moved from Pennsylvania and was armed and trained there but moved to Illinois and was there attacked by a 230lb criminal in a church when she was unarmed. Illinois then lost in court and the absolute ban was finally lifted but other states still effectively completely ban carry under may-issue regimes such as California.

No other right is so predicated on having a good reason, but courts do uphold the bans by ignoring the 2ndAmendment and Heller by arguing there is a public safety exception.

Guns went from 140 million to 300 million while the homicide rate dropped 80%. So the antis claim of more guns more crime is not valid at all. 2.5 times greater risk of injury to women who are unarmed compared to those who are armed per Kleck's study.

There is no study at all that shows allowing law abiding citizens to carry increases crime and no causal link between carry laws and crime rates. There are no public safety consequences from shall issue laws per the CDC of all places.

Unfortunately most 2nd, 4th, 9th circuits have upheld may issue under intermediate scrutiny. But they're not even faithfully applying intermediate scrutiny such as should have been done such as in the VMI case, instead we get public safety is important and the courts will defer to the legislature which does not meet an actual intermediate scrutiny test. Fails as there are plenty of less restrictive requirements.

Rogers case Supreme Court will decide if they will take it up as there is a Circuit Split on carriage so it might be taen up and we'll finally get a decent answer.

On assault weapons , the courts have been unable to explain how a thumbhole stock or adjustable stock has done anything to increase an actual crime, meanwhile if they applied Heller the result would be they're in popular use with over 8 million plus in circulation, also their claim its a small percentage of 3% of all guns in circulation and thus not in common use doesn't matter - after all Honda Accords are 3% of the car stock but certainly not unusual.

He also noted that magazine bans have not reduced crime at all and as such are ineffective, does not reduce them in the hands of criminals, nor of the substitution effect where criminals obtain them anyways and are not effective. Meanwhile it harms public safety.

Antis are switching focus to mass shootings, even Everytown has stated that in 89% of all mass shootings have no evidence of any high capacity being used. They don't even believe it themselves as continue to allow manufacture of the magazines in their jurisdictions.

Courts have upheld the bans on strange reasoning, ban even if it won't doing any good it will reduce the perceived risk of crime as the public will feel safer per the 7th Circuit - without any actual evidence of such. Simply would not fly for any other right. the magazine and assault weapons bans are screaming for Supreme Court review and application of Heller or at least real intermediate scrutiny.

Ban on 18-21 year olds from having firearms is an attack on the gun culture and leads to absurd results. After all 18 year olds have always been of military age and should be able to purchase firearms. 18-21 year olds are not children under the history of the 2nd Amendment and under the Militia act they were supposed to bring their own firearms.

He stated the Supreme Court will need to deal with this sooner rather than later.

NYSRPA case: Only was a typical New Yorker can get a handgun is via a premise license to keep it in their home with exception to go hunting or to maintain proficiency to a licensed shooting range in city limits - there's only one such range in all of NYC. For example you cannot transport that same handgun to a second residence outside of NYC. Hoping is Court will apply Heller to it and strike it down and city is now trying to moot the case via a proposed regulation to avoid Supreme Court review.

In short, we need Supreme Court review to articulate the propoer standard and get the Circuit Courts to properly apply Heller.


MrGarabaldi said...

Hey Aaron;

I hope you are having fun at NRAAM, wish I was there...Well anyway, I knew from some of the cases that I have heard of that the lower courts especially the 9th have been "blowing off" Heller because it is an inconvenient impediment to disarming the general public. Remember only the state and their minions can have guns....Well I didn't know that the problem was soo bad, You are right, the supreme court will have to smack down some lower court ruling down so hard that it will leave marks, then and only then will the other courts pay attention.

Aaron said...

MrGarabaldi: Yep, the 1st, 4th and 9th Circuits need a not-so-gentle reminder that Heller is established law and the SCOTUS needs to step up and correct this lack of enforcement on the lower courts. It was a great seminar and very much worth it. Had a great time and met a lot of good attorneys and neat people.