"The Truth About Guns" Discussion of Today's Second Amendment Argument

The 40-minute long discussion included our own David Kopel, Joseph Greenlee (Firearms Policy Coalition), Cody Wisniewski (Mountain States Legal Foundation), Louis Bonham (The Truth About Guns), and me.

 

Comments

[Reasonator]

Why does everyone consider Barrett as a middle of the road on 2A? She dissented on non violent felons losing their 2A rights.

[Jere]

Toward the end of the argument by Barbara Underwood (SG for New York) Justice Barrett asked her whether Underwood agreed with the Heller decision. I expected that the Chief Justice would intervene and ask Barrett to withdraw the question. Shouldn’t he have done that? He didn’t and Underwood answered yes.

[tylertusta]

Why would he do that? The Justices often range far and wide during oral arguments. Asking whether the State agrees with a previous ruling is an odd- but not unheard of- question.

[Jere]

The state (New York) of course was not asking reconsideration of Heller. Justice Barrett asked Underwood whether she agreed with Heller. How is that material? It is improper I think because if Underwood didn't in fact agree with Heller and she answered that way it would perhaps cause members of the Court to think that she might unconsciously distorting somethings in her written or oral arguments. Justice Alito just a few minutes earlier criticized the S.G's brief for having distorted the characterization of an 19 century state decision (I believe it was a Tennessee case) and said the State was guilty of unfair advocacy. Underwood, rightly or wrongly, explained that Alito was wrong in
claiming that her brief had mischaracterized the case. Then it was shortly later that Barrett asked Underwood whether she (Underwood) agreed with Heller, not just whether she accepted Heller as controlling precedent, which of course it was and Underwood's argument accepted Heller was controlling. precedent

[Bob from Ohio]

Its not a trial, there are no rules of evidence binding a justice to "material" questions.

[Noscitur a sociis]

Aside from the fact that there's no "materiality" requirement for questions posed at argument, at that "General" Underwood was free to point out that she didn't think the question would help resolve the case if she felt that way, Justice Barrett's follow-up question made it pretty why she was asking it:

Do you think that we are bound by the way that we characterized history in that opinion? You know, Mr. Clement has pointed out that in some respects the way that we treated, say, the Statute of Northampton is different from the way that you argue that we should interpret that and the follow-on, you know, statutes, and the colonies, you argue that we should understand those and some other cases differently than we did in Heller. Are we free to do that?

[Kazinski]

I’ve never heard of a Chief Justice telling an associate justice to withdraw a question. He’s first among equals but not really her boss, I’d think it would be very irregular.

Do you have any cite for when it’s actually happened?

And as a matter of practice, the justices often ask counsel about what they think the law is, whether the counsel thinks Heller is good law would be enlightening.

[tylertusta]

Agreed!

Justices' oral arguments sometimes goes into territory that's outside of the question a hand. Citizens United was one such case- at oral arguments, the government admitted that the then current law on campaign finance allowed for them to ban books. The resulting judicial explosion took BCRA out.

The Justices would not have gotten there if they weren't allowed to sus out the parties positions.

[Sebastian Cremmington]

I think Scalia’s Heller opinion is absurd but I also believe it is a very responsible Supreme Court decision because of how limited it is. And outside the home the justices should find we have a right to “bear arms” but a city like NYC can essentially outlaw guns outside the home with school zones and prohibited areas.

Furthermore, I think Rittenhouse is innocent of murder but he is also being charged with “recklessly endangering safety” because apparently one of his shots ended up near a bystander. So a city like NYC could prosecute gun owners engaged in self defense on similar grounds and make life miserable for anyone discharging a gun even in self defense by prosecuting them for reckless endangerment if bystanders are nearby.

[wreckinball]

Well without the gun he would be dead so his safety was protected. Open carry doesn't mean attack the guy with a gun unless you a vying for a Darwin award

[Sebastian Cremmington]

No, the alteration would never have taken place if he wasn’t open carrying because it was instigated by a suicidal ped0.

[Brett Bellmore]

“Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him.”

Would this reasoning not also apply to a detatched evaluation of backstops?

[Sebastian Cremmington]

Not with open carry in a charged atmosphere. The prosecutor is unethical and he should be disbarred for bringing murder charges…but if you discharge a gun you are responsible for the bullets even in a justified self defense situation.

[Nisiiko]

Actually, in many states, you're not.

[Sebastian Cremmington]

In Wisconsin you are.

[MatthewSlyfield]

Cite required.

[Sebastian Cremmington]

One of the charges against Rittenhouse is reckless endangerment because a bullet ended up near a bystander—check it out.

[Brett Bellmore]

That doesn't actually establish anything legally; Prosecutors often over-charge, or charge people with things that aren't actually crimes.

[MatthewSlyfield]

That the prosecutor charred reckless endangerment says absolutely nothing about whether or not a successful justification defense will or will not defeat that charge.

[MatthewSlyfield]

Charred->charged

[MatthewSlyfield]

There is one charge against Rittenhouse that can't be defeated by a justification defense, but it doesn't support your argument about someone engaging in self defense still being responsible for anything they hit, because that charge doesn't depend on the discharge of the weapon.

In Wisconsin it is illegal for a minor to be in possession of any firearm except under the direct supervision of a parent, guardian or other designated person (such as a licensed hunter safety instructor).

The charges against him include illegal possession of a dangerous weapon by a person under the age of 18.

If nothing else, he will almost certainly be found guilty on that charge.

[Nisiiko]

Only thing absurd here is your comment.

[Sebastian Cremmington]

Did I trigger you?? Next time I will put a trigger warning on my comment so I don’t upset the precious lil’ snowflakes—you are unique. 😉

[Rev. Arthur L. Kirkland]

Old, right-wing, mostly bearded White guys seem to agree on this one.

Whether clingers can persuade the modern American mainstream to accept a shoot-'em-up society may be a different matter.

[Reasonator]

Nice condescending ad hominem, but considering the vast majority of states (41) have adopted either shall issue or constitutional carry, I'd ask you if the modern American mainstream will accept your anti-liberty position? Source:

https://constitutionalcarrying.com/which-states-shall-issue-and-may-issue-concealed-carry-permits/

[Rev. Arthur L. Kirkland]

I am content to enable time to sift this.

Of course, that's easy for any member of modern America's liberal-libertarian mainstream -- victors in the culture war -- to say.

[LKB]

As one of the “old bearded white guys,” I’m more than content to let time sift this. Consider the solid, indisputable trend over the past 35 years:

http://www.gun-nuttery.com/rtc.php

Since 1986, we’ve gone from a nation of almost entirely no-issue or may-issue states (with only Vermont having constitutional carry) to 21 constitutional carry states (no license required) + 21 shall-issue states, and zero no-issue states (OK, Hawaii is de facto no issue but on paper it is may-issue). And after the likely red wave next year, you’ll likely see the number of constitutional carry states hit 25 — regardless of what SCOTUS holds in this case.

And guess what? Despite Breyer/Sotomajor’s “intuitive” belief that loosening licensing to permit freer lawful carrying somehow results in more improper shootings/crime, as Clement pointed out the data just does not support that. Look at the rate of violent crime in the same period — it trends DOWN while the % of people lawfully carrying has gone UP.

[Charles Nichols - CRTC]

LKB, Unless SCOTUS invents a Constitutional right to concealed carry, a right that never existed, Constitutional Carry is Open Carry without being conditioned on a government-issued permission slip.

And if SCOTUS does invent a concealed carry "right," then that right would be no more legitimate than the SCOTUS contrived rights to same-sex marriage, and abortion.

[LKB]

I'm using "Constitutional carry" in the current idiomatic meaning: no license required to carry.

I think SCOTUS will recognize what 2A provides: a right to *bear* arms, which means to carry them outside the home for self defense purposes.

Consistent with neutrally-applied time/place/manner restrictions on public speech, I think a state could say "open carry only." I think a state could say "concealed carry only." (Of course, a state could say "both concealed and open carry allowed.") But I do not think a state can say "no public carry of any kind" without running afoul of 2A.

[Rev. Arthur L. Kirkland]

Anti-liberty? I believe the Constitution -- not necessarily the Second Amendment, consequent to the linguistic gymnastics necessary to derive a right there -- safeguards a right to possess a reasonable firearm for self-defense in the home. I also fear that tone-deaf, old-timey, counterproductive gun nuts imperil that right by pushing gun absolutism that most Americans -- an increasing number -- reject.

[Noscitur a sociis]

Do you have some support for your claim that "most Americans" think the outcome being sought by the petitioners in this case would be bad? I couldn't find any polling on the question directly, but the polling on broader questions - such as support for "stricter" gun laws or the desirability of more people carrying concealed weapons, as well as the apparently-politically popular and pretty much entirely one-sided trend towards liberalizing carry rules far more than anyone here is asking makes it seem implausible to me.

[Bob from Ohio]

" I couldn't find any polling on the question directly"

Wouldn't matter, issue polls are trash, without exception.

[David Nieporent]

I understand. If they revealed things I didn't like, I might go around claiming they were worthless, too.

[Toranth]

Unfortunately, his answer is not completely wrong.
Hot-button "issue polls" are often push polls, which are inherently untrustworthy.
Similarly, some issues have responses biased by concerns over perception by the pollster or other nearby persons - for example, the so-called "Bradley" or "Fishtown" effects.

Polls on these sorts of topics need to be carefully done, and most don't bother to do that - take a look at the CNN or Fox polls on abortion sometime, and see their methodology and questions. It's pretty bad, and it gets worse when pollsters start manipulating data to account for "likely voters" or other filters.

Properly designed and executed polls are generally reliable... when you can find them.

[Reasonator]

So you believe the Second Amendment - which says both "keep" and "bear" arms - only applies to the home? Why would the Framers both with 2 words if it only applied to the home?

This obviously makes no sense, as the militia didn't just shoot out of their living room windows.

[SimonP]

I live in NYC. Not a fan of Heller, think "guns rights" advocates are basically insane.

Still, I've looked into acquiring a gun. Found it was next to impossible, put the thought aside.

Not because it's unsafe here in NYC. Not because I'm afraid of a home invasion. I was looking into acquiring a gun (and getting training on gun use) because I've read the violent fantasies of Trump supporters online, including right here on Reason. Lots of people can't wait to start shooting up "liberals." Figure I need to get ready for them.

It's not a happy situation to be in, but you gun nutters can't be content to live in a peaceful, prosperous country, can you?

[David Lawson]

I lived in Chicago, and was one of the individual plaintiffs in McDonald). I have to say, the ban on handgun carry and ownership there did not result in a peaceful, prosperous city!

Moore v Madigan gave us a shall-issue carry permit and did not result in the "blood in the streets" scenario that lefties such as yourself fantasized about.

[Nisiiko]

No, we are very content to live in a peaceful, prosperous country if you leftists would leave us alone.

But your tyrannical nature makes that impossible.

[Reasonator]

Dude you are silly AF. I don't believe you actually mean any of what you wrote. It's just a jab at people you disagree with.

And there is nothing peaceful and prosperous about any city that is dominated by your types.

[Ed Grinberg]

you gun nutters can't be content to live in a peaceful, prosperous country, can you?

I live in a suburb of Minneapolis. It was really "peaceful" here a year ago...
(And who much "prosperity" will be left after half your city is burned down?)

[Harvey Mosley]

Wow. After all this time you’re still trying to use the ol’ “blood on the streets” and “Wild West” bs arguments? I remember when Florida was considering going “shall issue” back in the 80’s iirc and we heard the same arguments. Each time another state went shall issue we heard them again. The predictions by hoplophobes of shootouts on every corner and blood in the streets by CCWers never came true. In fact, the studies on the issue show that those with a CCW are less likely to commit a crime than police officers. But here you are still making the same tired old argument that has been proven wrong for decades. I really expected better. Even from you.

[Brett Bellmore]

Quite interesting, and well worth listening to.

I was a bit disappointed, disturbed, maybe concerned, that when the next frontiers in litigation were being discussed, "red flag" laws didn't come up.

Sure, you can argue they're more of a 14th amendment issue, but, really? No, they're a 2nd amendment issue, because no other right gets treated so shabbily.

[Brett Bellmore]

Treatment of the bump stock ban seemed a little shallow, too: Even assuming that Congress had the power to simply up and ban things, (Not interstate commerce in them, mind: Mere possession within a state!) and that the Court wouldn't see the point in striking down a regulation Congress could swiftly enact, there remains the takings issue the Court ducked until it arguably became moot.

[wreckinball]

The whole Rittenhouse case is as weird as shit. Its like folks don't realize that in most places including Kenosha WI you can open carry. You are not asking for anything by open carrying.

You know who always open carries? The police.

So using the twisted logic of some they are asking to get attacked? Besides being about the dumbest thing on earth to do

[Brett Bellmore]

The left tend to get rather emotional at the thought that their own goon squads might be subject to being shot while on the job. You can't expect them to think clearly in the face of that prospect.

[Rev. Arthur L. Kirkland]

Does taking cranky, silly potshots at your betters help to ease your pain?

(That is the "official promo video," but it isn't the album version.

Neither is this, but I like it. This reportedly features David Bowie on acoustic guitar and assorted vocals; it also makes the Jagger-Richards writing claim, with Ron Wood not mentioned, quite sketchy.)

[Kazinski]

I heard on NPR that Rittenhouse only shot the people attacking him because they were supporting BLM, which is ridiculous.

Now I have to admit I have a long standing antipathy towards BLM, Congress should abolish them and devolve all their lands back to the states.

[Jimmy the Dane]

Calling NY "may issue" is being at least fast an loose with the reality that your chances of getting an unrestricted permit is about nil absent special connections. Same thing with most other "may issue" states (except for DE from what I understand where if you bother to jump through the long process you can actually get one - but it is considered a "may issue" jurisdiction.

In NJ, there are something like only 3000 active handgun permits for the few million citizens there. That is not "may issue". That is de facto "no issue". This is not a matter of state officials having discretion to regulate what may be considered by some people a dangerous tool or object. It is the outright abuse of power and denial of the right to effective self defense.

[Nisiiko]

That very much depends on the county. A lot of counties are shall issue. But they're good in every other county outside NYC, including those that are not shall issue, which illustrates how stupid the rules are. And nobody brought it up.

[zvwmzvwmzvwm]

What if NYS passes a law awarding these specific two plaintiffs a 184 day 14 inch license plate valid for carrying under 4 rounds whenever and wherever there are less than 1 LEO and 10,000 people per cubic mile on May 30th midnight enforceable by private suit? Could this case be mooted and booted?

[Brett Bellmore]

If it were 5-4 right now, it could be mooted on the least excuse.

As it is, there seem to be at least 5 votes for upholding the 2nd amendment to at least some degree, and if Roberts doesn't join the majority, Thomas ends up assigning the decision, and probably writing it himself.

I think Roberts joins the majority just to stop that, and make sure the decision is as watered down as possible without the 5 Justices getting pissed off enough to do whatever it takes to deprive him of that opportunity.

[Reasonator]

Roberts seemed pretty pro-2A in arguments, but of course that is a bad predictor of the ultimate outcome of the court.

[Flight-ER-Doc]

All y'all (except the young kid - Cody?) need to get your cameras up off your desks or laptops and up at eye level or above...Especially you. Professor Volokh...

[Commenter_XY]

And Professor Volokh needs to clean his desk! Look next to his laptop. 🙂

[Flight-ER-Doc]

A clean desk is a sign of psychopathy

[Commenter_XY]

The mess was distracting to me. Guess that makes me a nut. 🙂

[Flight-ER-Doc]

I can't diagnose you without a physical exam, but if the camera is at eye level the odds are that it won't pick up the desk.

[David Lawson]

I didn't listen live, but it seems no one compared NY to IL. Posner is usually well-respected so I wonder why his decision in Moore v Madigan wouldn't be referred to in this instance.

In Moore, Chicago and Cook County wanted a special carve-out a la NYC. They ended with one state administered permit that was good from one end of the state to another yet with some fairly onerous "sensitive spaces" carve-outs (public trans, cook county forest preserve, etc)

[David Nieporent]

I didn't listen live, but it seems no one compared NY to IL.

Clement repeatedly compared NYC to Chicago.