Nel's New Day

June 10, 2016

9th Circuit Court Upholds Gun Safety Law, Opposes NRA

Gun safety advocates won a big victory yesterday when the entire 9th Circuit Court of Appeals suspended a three-judge panel of the same court in a decision that the 2nd Amendment does not guarantee the right to carry concealed weapons in public places. This 7-4 decision covering nine states upholds a California law  requiring concealed carry applicants to demonstrate “good cause” for carrying a weapon. The ruling was narrow: it does not state that concealed weapons are unconstitutional and makes no ruling about openly carrying weapons in public. California also bans open carry in public. Gun owners who brought the lawsuit after being denied permits in Yolo and San Diego counties have not said whether they would appeal to the Supreme Court.

The opinion stated:

“The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of ‘good cause,’ however defined — is necessarily allowed by the Amendment. There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.”

The court ruled that the states are to decide on any restrictions regarding concealed weapons.  The complete ruling is here. Kamala Harris, state attorney general and candidate for U.S. Senate, said the ruling “ensures that local law enforcement leaders have the tools they need to protect public safety by determining who can carry loaded, concealed weapons in our communities.”

The high court ruled in 2008 (District of Columbia v. Heller) that people can have guns in their homes but noted in the opinion that gun ownership is not absolute. Justice Antonin Scalia, who authored Heller and voted in the majority, cited restrictions on concealed weapons as an example.

The 9th Circuit Court decision joined other federal appeals courts that rule for state and local governments to put restrictions on granting concealed-carry licenses. Three other federal appeals courts upheld California-like restrictions in New York, Maryland, and New Jersey, and another one struck down Illinois’ complete ban on carrying concealed weapons. The decision in Peruta v. San Diego is the last word on the subject unless the Supreme Court takes the case. It does not normally take cases unless lower courts are split on the issue. The court could take it anyway but probably not without a ninth justice.

No matter how hard some people wish, the 2nd Amendment right to “bear arms,” like almost all other rights, is not unlimited. Throughout the first two centuries of the U.S. Constitution, courts determined that keeping and carry guns was not an unobstructed right. Before the Revolution, the 1689 English Bill of Rights, “protected the rights of Protestants to have arms”—but “flatly prohibited” concealed carry. The majority of 19th-century courts determined that prohibitions on concealed carry were lawful, and the number of states banning open carry increased after the Civil War. In 1897, the Supreme Court of the United States even asserted that “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.” Even the most recent Supreme Court cases don’t guarantee a right to carry a gun for self-defense outside the home.

Not until 1977, when extremists took over the NRA, did the so-called “right to bear arms” become more and more unregulated. As the NRA focus shifted from hunting to unlimited gun ownership and carrying, law review articles were written supporting the current radical perspective—over 27 between 1970 and 1989. More than half these articles were written by a few lawyers employed by the NRA and other pro-gun groups. At the same time, the number of conservative justices in federal courts burgeoned.

When Republicans took control of the U.S. Senate in 1981 for the first time in 24 years, Sen. Orrin Hatch (R-UT) claimed to have found proof that the 2nd Amendment is unlimited. The NRA showed more power to elect presidents, and John Ashcroft, George W. Bush’s attorney general, finished the revisionist history about limited gun rights by reversing the Justice Department’s stance. But in time, the NRA’s power to elect presidents began to shift executive branch policies, too. In 2000, gun activists strongly backed Governor George W. Bush of Texas. After the election, Bush’s new attorney general, John Ashcroft, reversed the Justice Department’s stance.

Although the 9th Circuit covers nine western states, only California and Hawaii are affected by the ruling. The other seven, including Oregon, do not require permit applicants to cite a “good cause.” Anyone in those states with a clean record and no history of mental illness can get a permit.

Scalia, a justice pushing unrestricted gun ownership and carrying, departed from his professed belief in “originalism,” a position that the words of the constitution are sacred, to following the new political and social movement.

At the same time that the NRA demands no restrictions on purchasing, owning, and carrying guns, the organization is incensed about the possibility of felons voting in Virginia. Wayne LaPierre, NRA’s executive VP, commented:

“Tentacles of the Clinton machine are out registering those felons right now. They’re releasing them, and then they’re registering them. Heck, when they sign their release papers, they might as well at the prison door … give ‘em a Hillary Clinton bumper sticker.”

While bitterly complaining about giving the vote to ex-felons, the NRA has put great effort into giving these same “violent rapists and murderers,” as they call them, the “constitutional right” to own and possess guns. Much of the support for the Firearm Owners Protection Act of 1986 came from the NRA and undid many provisions in the 1968 Gun Control Act, passed shortly after Robert Kennedy and Martin Luther King were shot dead.

One provision in the law allowed felons convicted of gun crimes and other violent offenses to petition to have their gun rights restored. Many of these ex-felons permitted to own firearms were again arrested for committing other violent crimes. The only successful part of the law, defunded in 1992, was an amendment forbidding the sale of machine guns to civilians.

In arguing for the “Protection Act,” NRA representative Richard Gardiner said:

“There’s no reason why a person who has demonstrated they are now a good citizen should be deprived of their right to own a firearm. We ought to recognize that some people can change.”

What the NRA didn’t address in its complaint about Virginia is that 80 percent of the states already give voting rights to ex-felons after they have completed their sentence and other responsibilities connected to the crimes for which they were convicted. Two of the states even allow felons to vote while they are in prison.

As the NRA complains about California gun safety laws, it doesn’t oppose gun bans at the upcoming GOP convention in Cleveland. Ohio is an open carry state, but the arena doesn’t allow firearms inside. An open carry group wanted Ohio Gov. John Kasich to override the gun-free loophole in state law; Cleveland is known as one of the most dangerous cities in the world. There was no uproar when he didn’t. No guns were allowed at the 2012 GOP convention either, despite Florida law that prevents cities “from acting to limit guns.”

Donald Trump claims that he’s a strong 2nd Amendment supporter, but many of his hotels and golf courses ban guns. A Trump Organization official denied any restrictions on Trump facilities, but security and staff disagree. Florida’s Jupiter, Mar-a-Lago, Trump International Golf Club, and Trump National Doral all prevent guns on the property. Trump International Hotel Las Vegas refused to comment, and Trump Winery said it allowed people to carry guns on the premises—if they weren’t drinking. Both Trump International Hotel Waikiki Beach Walk in Honolulu and Trump International Hotel & Tower Chicago have “gun-free zone” policies.

Maybe it’s time for far more places to follow Donald Trump’s lead. The 9th Circuit Court ruling is a starting place.

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