Police

The First Amendment Right to Carry a Gun

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Iowa is one of the relatively few states where local police still have wide discretion to decide who is allowed to carry a concealed weapon in public. In a vivid demonstration that such policies can have First as well as Second Amendment implications, a federal judge this week ruled that Osceola County Sheriff Douglas Weber violated a man's right to freedom of speech by denying him a carry permit based on his political activism. Paul Dorr, well known locally for demonstrating at abortion clinics and agitating against government spending, applied for a permit because he carries large amounts of cash as part of a balloon-selling business. Weber decided Dorr was too "weird" to carry a gun, although he had held a permit without any problems from the late 1990s until 2006. The sheriff put this notation on Dorr's rejected application: "Concern from Public. Don't trust him."

U.S. District Judge Mark W. Bennett concluded that the "concern" was related to Dorr's political activities, especially his attacks on excessive county spending and his inquiries about the sheriff department's budget:

The court finds a tsunami, a maelstrom, an avalanche, of direct, uncontroverted evidence in Sheriff Weber's own testimony to conclude beyond all doubt that he unquestionably violated the First Amendment rights of…Paul Dorr….This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views.

Bennett ordered Weber to issue Dorr a carry permit and to complete a court-approved course on the U.S. Constitution. The case has had broader consequences as well, spurring the state legislature to limit police discretion regarding carry permits. A new law that takes effect in January lists specific reasons for denying a permit application. Weirdness is not one of them.

[Thanks to Mark Lambert for the tip.]

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  1. “and to complete a court-approved course on the U.S. Constitution.”

    Where is this course being held? Any Iowa Reasonoids around who want to bone up on their constitutional knowledge (while making fun of the idiot Sheriff)?

    1. Too bad they don’t hold it at the police acadamy.

      1. Too bad they don’t hold it at Congressional swearing in ceremonies.

    2. I am assuming at Drake University in Des Moines: http://www.law.drake.edu/centers/conLaw/

      as Osecola county is in north central Iowa and ISU does not have a law program.

    3. He will find an online diploma mill where he will receive an A as soon as the check clears. Extra bonus: fees will probably be paid by the taxpayers under some tuition reimbursement benefit.

  2. Wow. Is all I can say.

    1. A good “Wow,” right?

      1. Yeah, wow as in “wow, I can’t believe the judge called out the cop like that” and “wow, I can’t believe the judge ruled on the side of individual liberty.”

    2. +1. I’m not aware of any other rulings this judge has made but based on that case, we need a lot more like him on the federal bench. He slapped that sheriff down big-time!

  3. Where does U.S. District Judge Mark W. Bennett get off??!!

    “…with the same force of protection as folks with more majoritarian and popular views.”

    I’M WETTING MY PANTS RIGHT NOWW!!!

  4. …and all across the country, right-wing activist balloon salesmen breathe a collective sigh of relief.

    1. There’s your Friday funny right there.

    2. The judge did the right thing, as could have easily popped Dorr’s balloon.

  5. I like this judge.

  6. Wow. Excellent ruling! This guy needs to be on the SCOTUS not empty-headed establishment hacks like Elena Kagan *barf*

    1. +1, except he probably didn’t get an overpriced education at Harvard or Yale, thereby disqualifying him from the Supreme Court.

  7. Why aren’t there more judges like this?

  8. I guess sheriffs can no longer deny CCW permits to people because they are homosexual.

  9. I’m trying to imagine the crateloads of money this guy carries around as a result of his balloon selling business. I’m picturing one of the money-porn scenes from Scarface, Blow or Lethal Weapon II.

    1. “Say hello to my little wacky inflatable arm flailing tube man!”

    2. Balloons provide a distraction from having to live in Iowa, the market’s huge.

      1. Bourbon worked better for me when I was there one summer.

    3. “Paul Dorr, well known locally for demonstrating at abortion clinics and agitating against government spending, applied for a permit because he carries large amounts of cash as part of a balloon-selling business”

      How much do these balloons cost?
      Are these really balloons, or did Reason self censor and it actually read “inflatable women?”

    4. Everyone here is assuming toy (ie, “Happy Birthday”) balloons. Could be the larger ones (weather-balloon sized) used for advertising, or even man-carrying balloons. Not that it matters.

      And as much as I despise clinic-stalking fundie nutjobs, I fully support his right to carry unless he has prior convictions for violent crimes.

    5. Well, I’d rather they say “Death from Above,” …

  10. This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views.

    Any word on Eric Holder’s reaction?

    1. He’s wetting his pants as I type this.

  11. I’m guessing the county sheriff’s department isn’t in charge of federal courtroom security.

    1. No. Sheriffs departments generally provide security for local courts. The feds handle their own courtroom security.

  12. I fully agree with Contemplationist.

    This is the evil of “may issue” vs. “shall issue”. The next round of lawsuits needs to be filed in the State courts regarding those States, like New York, with a “may issue” philosophy regarding carry permits. If a Citizen has no significant criminal record (violations and certain misdemeanors excepted) and not adjudged to be a sociopathic physical threat to the community, then they have the RIGHT to posess arms.

    Expressing opinions within the confines of settled First Amendment law is NOT a crime. An embarassment to poiliticans, yes, but not a crime.

    1. The 2nd amendment does not contain any qualifiers. Thus, I see no reason why convicted felons should be deprived of their right to keep and bear arms. If the framers had wanted to qualify the right, they would have so done.

      1. The First Amendment doesn’t contain any qualifiers on the right to free speech, either. But “the right” in question always has been understood to not be completely and absolutely without any limits whatsoever – and neither has “the right” to keep and bear arms. I’m sure the framers did not intend that a mass rapist or murderer would have exactly the same right to be armed as law-abiding citizens.

        With great rights comes great responsibilities.

        The problem these days is that the definition of “felony” has been so greatly expanded to include so many non-violent offenses. But I don’t see a problem with keeping firearms out of the hands of someone who has shown a propensity for not being able to handle the responsibility. But the decision should be made on a case-by-case basis.

        1. If a Citizen has no significant criminal record (violations and certain misdemeanors excepted) and not adjudged to be a sociopathic physical threat to the community

          My problem with this, and with WTF’s argument, is that if a person’s crime is so heinous that they are a perpetual threat to the community and must lose their 2nd amendment rights for the rest of their lives – why doesn’t the crime carry a life sentence? If they’re that dangerous, why are they allowed any liberty at all? Similarly, if someone is so insane that they have to be denied a gun permit, why aren’t they involuntarily committed to a mental institution?

          1. In the second case, someone can be completely insane without being a danger to themselves or others. There are some kinds of schizophrenia where the person essentially has almost no connection with reality, yet does not engage in violent behavior. Instead, they withdraw into their own mental world. There is no reason to involuntarily commit these people .

            1. especially with the intertubes available. Although my chronic wacky-wacky results in chronic carpal tunnel syndrome which undoubtedly strains the healthcare system.

          2. WTF’s argument is an invitation to tyranny. The framers took away the “case by case” option from government goons.

            1. The framers took away the “case by case” option from government goons.

              Uh? How so? That is the core of due process. Each case gets judged on the facts and circumstances. The government certainly can deprive you of life, liberty or property, provided it does so through due process.

              A course of punishment for a crime can include imprisonment for a set period, as well as taking away other rights and privileges usually associated with being a free person. But just because your prison sentence expires does not mean the other facets of your punishment expire at the same time.

              Losing certain rights, such as the right to carry a gun, is hardly the same as spending the rest of your life in state prison. I’m sure there are plenty of felons who would gladly agree to give up their right to legally own a gun in exchange for being allowed to get out of prison.

              Don’t get me wrong – I’m not advocating generally that anyone convicted of a felony should be stripped of all rights for the rest of their lives. But I can see a possibility of fashioning a punishment that involves depriving a person of certain liberties by imprisoning them for a set term and then also denying them the right to own deadly weapons. Maybe there should be a set term on the loss of the right, just as there is a set term on the period of imprisonment.

              But this is why most states have laws enabling felons to get their rights restored. You can petition to get back your right to vote and your right to own or carry a gun.

              I know some here will discount me saying this, but I am a huge supporter of gun rights. I don’t feel I need to trot out my 2A bona fides. But I also firmly believe that if you demonstrate by your actions a serious disregard for the rights of others, then you have chosen to put your own at jeopardy as well.

          3. Right. After release and completion of parole a citizen should retain all rights afforded to other citizens.

            They’ve paid for their crime. Making them second class citizens doesn’t seem conducive to the goal of re-integrating these people into society.

      2. The problem with this line of thinking is how you define “arms”. If there are no qualifiers at all, and the definition of “arms” is extremely wide, personal ownership of a tank, or a fighter jet, or a nuclear weapon, should be protected. It’s clear that the Supreme Court is not allowing that, so expect a whole heck of a lot of more court cases where the Supreme Court decides, in minute detail, what can and can not be banned.

        1. The ‘militia phrase’ sets a context tha provides a MINIMUM set of arms to be protecteded:

          At a MINIMUM, the weapons, and those similar, commonly issued to the individual infantryman or to the paramilitary police forces are protected by that portion.

          And yes, the indisputably includes automatic rifles and light machine guns, as well as knives or even swords.

          This says nothing about maximums, and at the time of the Constitution is was not unheard of for ordinary citizens to own cannon and armed war ships.

          If the maximum proves to be an issue, the Constitution can always be AMENDED.

          It is never the job of the government to ‘just change’ the meaning of the Constitution other than through the process of amendment.

  13. Talk about burying the lede. Who knew how lucrative the balloon racket is?

  14. Interestingly enough, yesterday, Marsha Coakley, Massachusetts Attorney General (yes that Marsha Coakley, who lost to Scott Brown) while appearing as a guest on the Jim Braude and Majorie Egan show on 96.9 FM in Boston, unambiguously disagreed with Governor Deval Patrick’s support of a bill recently filed in the Massachusetts legislature which would limit to one the number of guns an individual could lawfully purchase per month.

    1. That can never excuse her Curt Schilling gaffe.
      We have our priorities in order here, mister.

      1. Do you think that someone like me would ever endorse, much less vote for someone like Marsha?

      2. I have it on good authority that the Red Sox wont even make it to the playoff any time in the next two decades, and wont make it to the World Series again in the remaining history of the franchise.

        Just sayin’. Turn down a sweet deal, and you pay, bro.

    2. I am personally against “purchase per month” laws. I can’t afford to buy a gun a month. Unless, of course, the state subsidizes me.

    3. We have that law. Apparently it keeps yankees from killing each other, but it’s bad for our gun businesses so we’re trying to repeal it.

      1. It doesn’t even keep Yankees from killing each other.

      2. Hey, Virginia – the OGAM limit doesn’t apply to those of us with CCW permits. And it also has done precisely diddly-bo in preventing anyone from killing anyone else.

    4. Martha Coakley is Mass Atty Gen, despite what you may have heard from RI Congresscritter Patrick Kennedy.

  15. The court finds a tsunami, a maelstrom, an avalanche, of direct, uncontroverted evidence in Sheriff Weber’s own testimony to conclude beyond all doubt that he unquestionably a fascist dickhead

  16. commenter hmm posted this yesterday.

    but thanks for catching up

  17. the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook

    Nooooooo!

    1. But not Spock.

      He’s out of his Vulcan mind!

  18. I’ve gotten to know Paul Dorr a little bit in the last few years. He’s a great activist for liberty (maybe not the cosmotarian Reason kind, but the paleolibertarian Ron Paul kind). Dorr’s day job is killing public school ballot initiatives around the Midwest as a political consultant. He was originally the founder of the Iowa chapter of the Constitution Party and worked on Dr. Paul’s campaign in Iowa and several other states.

    Republicans partisans in our state always like to tell us “elections have consequences” as in, “vote for us or else.” The consequence of electing a Republican sheriff was denying constitutional rights. Now that Dorr can have a firearm, the Constitution and/or Libertarian Parties ought to get him elected sheriff.

    1. What’s a “public school ballot initiative”? Are these initiatives to fund public schools or what?

  19. I don’t agree that this is a First Amendment violation. The Sheriff was not abridging the man’s freedom of speech or association. He was preventing his right to bear arms, which shall not be infringed. I’ll take it because the result was correct and because I’m glad the Sheriff was embarrassed for his tyrannical view, but the logic to get there was poor.

    1. It was both, Nick. The sheriff was punishing him for exercising his First Amendment rights, by denying his Second Amendment rights.

      Rather than issue a ruling based on still-uncertain 2A grounds, the good Judge elected to kick the crap out of the Sheriff on pretty uncontrovertible 1A grounds. Can’t fault him for that.

    2. The sheriff sanctioned him for exercising his First Amendment rights. The particular sanction was denial of a carry permit.

      1. Can’t feel too bad getting scooped by RC Dean

  20. When does “shall not be infringed” mean anything at all?

    Never because it isn’t what our government/s want to be the standard.

    So they ignore OUR RIGHTS, under OUR CONSTITUTION, which limits, THEIR POWERS…

    All of this seems very clear to me, and none of this will ever end, until “they” are never infringed upon (add few more judges here) when telling us what we are to do, at all times. They know better than we how we should live and what we should do, and they intend to both tell us, and mind our business for us.

    This is unacceptable to a free, people…..

    The question is, will it be tolerated?

  21. When will we begin to understand that they no longer care what “OUR” Constitution says.

    They only care about what THEY want, and THEY don’t like freedom or rights or things and people that THEY, don’t control.

    The Constitution wasn’t written for THEY, it belongs to us, not THEM or THEY. But THEY sure do make a big show telling us what rights it DOESN’T cover and just what THEIR powers are to rule, over us. And somehow we always loose that contest. Somehow we always come up short.

    Somehow THEY are always able to diminish liberty and freedoms, enhance themselves, THEIR powers and THEIR pocketbooks while we get less and less.

    And then THEIR MEDIA, tell us how lucky we are and what a great job THEY are doing and how horrible it would be without THEY. I’m willing to try it without THEY again but THEY won’t go away willingly….

    On a lighter note, I found this and it brought a smile to my face, hope it does the same for you.

    http://www.youtube.com/watch?v=0heL2Czeraw&feature=related

  22. Don’t you just love this judge..

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