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Republicans Who Support Gun Confiscation Laws Imagine ‘Due Process’ That Does Not Exist on Paper or in Practice

When President Donald Trump endorsed “red flag laws” on Monday, he described them as providing “rapid due process” to people accused of posing a threat to themselves or others before suspending their Second Amendment rights. Sen. Lindsey Graham (R–S.C.), who plans to introduce a bill aimed at encouraging more states to enact such laws, says they should provide “robust due process.” But as I note in my column today, due process is neither rapid nor robust under most existing red flag laws, which 17 states and the District of Columbia have enacted. There is little reason to think the situation will improve as more states rush to do something about mass shootings.

Testifying before the Senate Judiciary Committee last March, David Kopel, a gun policy expert at the Independence Institute in Denver, emphasized the importance of procedural safeguards aimed at protecting the constitutional rights of respondents in gun confiscation cases. Kopel’s recommendations include requiring that petitions be submitted only by law enforcement agencies after an independent investigation, allowing ex parte orders (which are issued without an adversarial process) only for good cause, limiting them to one week, limiting subsequent orders to six months, requiring clear and convincing evidence, providing counsel to respondents, giving them a right to cross-examine witnesses, letting them sue people who file false and malicious petitions, and giving them advance notice of confiscation orders. Here are some of the ways existing laws fall short of those criteria.

Who can file a petition?

According to a handy summary prepared by the Giffords Law Center to Prevent Gun Violence, just five states (Connecticut, Florida, Indiana, Rhode Island, and Vermont) require that petitions come from police officers or prosecutors. In the other 12 states and D.C., lots of other potentially aggrieved (or well-meaning but mistaken) people, such as blood relatives, in-laws, current and former cohabitants, current and former intimates, physicians, and mental health specialists can also file petitions. A pending California bill would add employers, co-workers, and school personnel to that state’s already lengthy list of potential petitioners.

When are ex parte orders allowed?

Every state and D.C. allow judges to issue gun confiscation orders without giving the respondent a chance to rebut the claims against him. In some states, the standard for such ex parte orders is minimal. New York requires “probable cause” to believe the respondent is “likely to cause serious harm” to himself or others. Other states are stricter. Vermont requires showing by “a preponderance of the evidence” that the respondent poses “an immediate and extreme risk.”

How long do ex parte orders last?

The maximum length ranges from a week in Nevada to six months (for “good cause”) in Maryland. Fourteen days—twice as long as Kopel’s recommendation—is the most common limit.

What is the standard of proof for final orders?

Most states require clear and convincing evidence. But a preponderance of the evidence (any probability greater than 50 percent) is enough in Massachusetts, New Jersey, Washington state, and Washington, D.C.

How long do final orders last?

Orders issued after an adversarial hearing typically last up to a year (twice as long as Kopel thinks appropriate), and they can be renewed. Illinois and Vermont have six-month limits, while Indiana and New Jersey impose no time limit. Instead the respondent has to win back his Second Amendment rights by proving he is not dangerous.

Do respondents have a right to legal representation?

Colorado is the only state that provides counsel to respondents who cannot afford a lawyer or choose not to hire one.

Do respondents get a chance to cross-examine their accusers?

Not necessarily. In some states, Kopel says, “The accuser and witnesses supporting the accuser never need to testify in court, where they would be subject to cross-examination. Instead, persons can simply submit an affidavit.”

Do respondents have a civil cause of action against petitioners who lie?

No state lets petitioners sue their accusers for knowingly misrepresenting facts in their petitions. While dishonest petitioners could theoretically face criminal charges, Kopel says, such cases are hard to prove and are almost never brought. He argues that the threat of litigation is necessary as a deterrent to people who would otherwise abuse the system to hurt people they have a grudge against.

Do respondents have advance notice before gun confiscation orders are executed?

In some states, Kopel says, “a respondent never receives notice of anything until
the police show up to confiscate his or her firearms,” which “creates an inherently volatile and dangerous situation for law enforcement and the public.” He argues that “the safer approach is to authorize no-notice confiscation only when a court has made specific factual findings about why such an approach is needed.”

How do red flag laws work in practice?

The actual performance of red flag laws tends to be worse than the promises on paper. While Indiana notionally requires that a hearing be held within 14 days of a gun seizure, for instance, a 2015 study found that gun owners waited an average of more than nine months before a court decided whether police could keep their firearms. Although Maryland officially requires evidence of an “immediate and
present danger” for ex parte orders, judges issue them in virtually every case.

Even when clear and convincing evidence is required for a final order, the thing to be proven—usually a “significant” risk but in some states a mere “risk,” “danger,” or “risk of danger”—is vague and undefined. When standards are amorphous, judges are especially likely to err on the side of issuing orders, because they imagine that failing to do so could lead to terrible consequences. The possibility that a respondent will unfairly lose his Second Amendment rights is bound to pale in comparison to the possibility that he will use a gun to commit suicide or murder. That psychological dynamic helps explain why judges in Florida issue final orders 95 percent of the time.

Donald Trump can talk about due process. Lindsey Graham can talk about due process. David French can talk about due process. But when push comes to shove, state legislators will give it short shrift, and so will judges, because they both have strong incentives to cast the net as widely as possible, to better catch potential mass shooters. Never mind that red flag laws are mainly used to protect people against their own suicidal impulses, or that so far there is no real evidence that they prevent homicides. The point is to do something about mass shootings, whether or not that thing works or produces benefits that outweigh its costs, which in this case consist mainly of constitutional rights unjustly lost.

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Republicans Who Support Gun Confiscation Laws Imagine ‘Due Process’ That Does Not Exist on Paper or in Practice

When President Donald Trump endorsed “red flag laws” on Monday, he described them as providing “rapid due process” to people accused of posing a threat to themselves or others before suspending their Second Amendment rights. Sen. Lindsey Graham (R–S.C.), who plans to introduce a bill aimed at encouraging more states to enact such laws, says they should provide “robust due process.” But as I note in my column today, due process is neither rapid nor robust under most existing red flag laws, which 17 states and the District of Columbia have enacted. There is little reason to think the situation will improve as more states rush to do something about mass shootings.

Testifying before the Senate Judiciary Committee last March, David Kopel, a gun policy expert at the Independence Institute in Denver, emphasized the importance of procedural safeguards aimed at protecting the constitutional rights of respondents in gun confiscation cases. Kopel’s recommendations include requiring that petitions be submitted only by law enforcement agencies after an independent investigation, allowing ex parte orders (which are issued without an adversarial process) only for good cause, limiting them to one week, limiting subsequent orders to six months, requiring clear and convincing evidence, providing counsel to respondents, giving them a right to cross-examine witnesses, letting them sue people who file false and malicious petitions, and giving them advance notice of confiscation orders. Here are some of the ways existing laws fall short of those criteria.

Who can file a petition?

According to a handy summary prepared by the Giffords Law Center to Prevent Gun Violence, just five states (Connecticut, Florida, Indiana, Rhode Island, and Vermont) require that petitions come from police officers or prosecutors. In the other 12 states and D.C., lots of other potentially aggrieved (or well-meaning but mistaken) people, such as blood relatives, in-laws, current and former cohabitants, current and former intimates, physicians, and mental health specialists can also file petitions. A pending California bill would add employers, co-workers, and school personnel to that state’s already lengthy list of potential petitioners.

When are ex parte orders allowed?

Every state and D.C. allow judges to issue gun confiscation orders without giving the respondent a chance to rebut the claims against him. In some states, the standard for such ex parte orders is minimal. New York requires “probable cause” to believe the respondent is “likely to cause serious harm” to himself or others. Other states are stricter. Vermont requires showing by “a preponderance of the evidence” that the respondent poses “an immediate and extreme risk.”

How long do ex parte orders last?

The maximum length ranges from a week in Nevada to six months (for “good cause”) in Maryland. Fourteen days—twice as long as Kopel’s recommendation—is the most common limit.

What is the standard of proof for final orders?

Most states require clear and convincing evidence. But a preponderance of the evidence (any probability greater than 50 percent) is enough in Massachusetts, New Jersey, Washington state, and Washington, D.C.

How long do final orders last?

Orders issued after an adversarial hearing typically last up to a year (twice as long as Kopel thinks appropriate), and they can be renewed. Illinois and Vermont have six-month limits, while Indiana and New Jersey impose no time limit. Instead the respondent has to win back his Second Amendment rights by proving he is not dangerous.

Do respondents have a right to legal representation?

Colorado is the only state that provides counsel to respondents who cannot afford a lawyer or choose not to hire one.

Do respondents get a chance to cross-examine their accusers?

Not necessarily. In some states, Kopel says, “The accuser and witnesses supporting the accuser never need to testify in court, where they would be subject to cross-examination. Instead, persons can simply submit an affidavit.”

Do respondents have a civil cause of action against petitioners who lie?

No state lets petitioners sue their accusers for knowingly misrepresenting facts in their petitions. While dishonest petitioners could theoretically face criminal charges, Kopel says, such cases are hard to prove and are almost never brought. He argues that the threat of litigation is necessary as a deterrent to people who would otherwise abuse the system to hurt people they have a grudge against.

Do respondents have advance notice before gun confiscation orders are executed?

In some states, Kopel says, “a respondent never receives notice of anything until
the police show up to confiscate his or her firearms,” which “creates an inherently volatile and dangerous situation for law enforcement and the public.” He argues that “the safer approach is to authorize no-notice confiscation only when a court has made specific factual findings about why such an approach is needed.”

How do red flag laws work in practice?

The actual performance of red flag laws tends to be worse than the promises on paper. While Indiana notionally requires that a hearing be held within 14 days of a gun seizure, for instance, a 2015 study found that gun owners waited an average of more than nine months before a court decided whether police could keep their firearms. Although Maryland officially requires evidence of an “immediate and
present danger” for ex parte orders, judges issue them in virtually every case.

Even when clear and convincing evidence is required for a final order, the thing to be proven—usually a “significant” risk but in some states a mere “risk,” “danger,” or “risk of danger”—is vague and undefined. When standards are amorphous, judges are especially likely to err on the side of issuing orders, because they imagine that failing to do so could lead to terrible consequences. The possibility that a respondent will unfairly lose his Second Amendment rights is bound to pale in comparison to the possibility that he will use a gun to commit suicide or murder. That psychological dynamic helps explain why judges in Florida issue final orders 95 percent of the time.

Donald Trump can talk about due process. Lindsey Graham can talk about due process. David French can talk about due process. But when push comes to shove, state legislators will give it short shrift, and so will judges, because they both have strong incentives to cast the net as widely as possible, to better catch potential mass shooters. Never mind that red flag laws are mainly used to protect people against their own suicidal impulses, or that so far there is no real evidence that they prevent homicides. The point is to do something about mass shootings, whether or not that thing works or produces benefits that outweigh its costs, which in this case consist mainly of constitutional rights unjustly lost.

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Vox Misses the Mark on Video Games and Gun Deaths

Following the weekend’s mass shootings, Reason has been a vocal critic of fact-free attempts to blame real-world violence on video games.

Meanwhile, others have turned to data manipulation as they try to pivot the argument back toward gun control measures that would violate Americans’ Second Amendment rights as surely as video game censorship would violate the First. On Monday, Vox published this graph calling the United States an “outlier” in gun deaths among countries with lots of gamers, which quickly made the rounds on social media:

This data doesn’t appear to be inaccurate, but there are a couple of things worth noting here. First, they deliberately chose to compare game revenue not with total homicide rates but specifically with all gun deaths—including suicides. In actuality, less than half of the gun deaths showing up on that chart for the United States are homicides; America’s recent increase in gun-related deaths is being driven by suicides, not homicides.

This is not to say we shouldn’t care about suicides, but it’s a very different public health issue than mass murders and should not be lumped into the same data when we’re trying to explore solutions for these killings. And we certainly should not be forcing Americans to give up their constitutionally-protected gun rights out of fear of what they might do to themselves.

Second, this chart leaves out one major video game market: Brazil. Brazil is the largest game market in Latin America and currently ranks 13th worldwide in game industry revenue. It would most certainly be a top-10 country if its taxes and tariffs didn’t make importing games down there so hard. (In fact, it has a huge game piracy issue because of the taxes.) It probably didn’t make Vox‘s cutoff for revenue, but it’s definitely one of the top countries for video game players, even if the industry as a whole doesn’t earn quite so much there, and it’s a fast-growing market. Smart game companies (especially those who make online competitive games) deliberately put characters or elements in their games designed to appeal to Brazilian players.

America’s gun violence rate absolutely pales in comparison to Brazil’s. If Vox had included Brazil on the chart it would have to change the scale entirely. Brazil had three times as many gun homicides as the United States in 2017—about 43,000 compared to 15,500 in the United States.

None of this is evidence that video games actually do contribute to violence in Brazil (or in the United States). Rather, the way Vox approached this gun violence data was designed to make the United States appear to be an outlier among all countries. In reality, Brazil is a country with a similar love of video games and a much worse gun violence problem. There, just as in America, people blame the problem on too much gun access, even though the country has strict gun controls that criminals just bypass.

These two flaws in the chart also relate to each other. Some gun control advocates are strong supporters of studies that claim easy access to these weapons contributes to America’s high suicide rate. But when you look at Brazil, which is also awash with guns, the suicide rate is much lower:

So perhaps using guns to commit suicide is a very American problem, but all of that is completely disconnected to what is causing mass shootings in the United States. We’d be better off if media outlets were careful to extract that information.

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Vox Misses the Mark on Video Games and Gun Deaths

Following the weekend’s mass shootings, Reason has been a vocal critic of fact-free attempts to blame real-world violence on video games.

Meanwhile, others have turned to data manipulation as they try to pivot the argument back toward gun control measures that would violate Americans’ Second Amendment rights as surely as video game censorship would violate the First. On Monday, Vox published this graph calling the United States an “outlier” in gun deaths among countries with lots of gamers, which quickly made the rounds on social media:

This data doesn’t appear to be inaccurate, but there are a couple of things worth noting here. First, they deliberately chose to compare game revenue not with total homicide rates but specifically with all gun deaths—including suicides. In actuality, less than half of the gun deaths showing up on that chart for the United States are homicides; America’s recent increase in gun-related deaths is being driven by suicides, not homicides.

This is not to say we shouldn’t care about suicides, but it’s a very different public health issue than mass murders and should not be lumped into the same data when we’re trying to explore solutions for these killings. And we certainly should not be forcing Americans to give up their constitutionally-protected gun rights out of fear of what they might do to themselves.

Second, this chart leaves out one major video game market: Brazil. Brazil is the largest game market in Latin America and currently ranks 13th worldwide in game industry revenue. It would most certainly be a top-10 country if its taxes and tariffs didn’t make importing games down there so hard. (In fact, it has a huge game piracy issue because of the taxes.) It probably didn’t make Vox‘s cutoff for revenue, but it’s definitely one of the top countries for video game players, even if the industry as a whole doesn’t earn quite so much there, and it’s a fast-growing market. Smart game companies (especially those who make online competitive games) deliberately put characters or elements in their games designed to appeal to Brazilian players.

America’s gun violence rate absolutely pales in comparison to Brazil’s. If Vox had included Brazil on the chart it would have to change the scale entirely. Brazil had three times as many gun homicides as the United States in 2017—about 43,000 compared to 15,500 in the United States.

None of this is evidence that video games actually do contribute to violence in Brazil (or in the United States). Rather, the way Vox approached this gun violence data was designed to make the United States appear to be an outlier among all countries. In reality, Brazil is a country with a similar love of video games and a much worse gun violence problem. There, just as in America, people blame the problem on too much gun access, even though the country has strict gun controls that criminals just bypass.

These two flaws in the chart also relate to each other. Some gun control advocates are strong supporters of studies that claim easy access to these weapons contributes to America’s high suicide rate. But when you look at Brazil, which is also awash with guns, the suicide rate is much lower:

So perhaps using guns to commit suicide is a very American problem, but all of that is completely disconnected to what is causing mass shootings in the United States. We’d be better off if media outlets were careful to extract that information.

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Rage Rules American Politics

In the wake of two high-profile mass shootings over the weekend, the conversation got a little vitriolic in America. Again.

Screaming at each other over policy disputes, the loudest segments of the population set out to prove that they are unworthy to ever be trusted with the power to rule over people with whom they disagree. They made their case well, and it would be advisable to refuse deference to any government that any of them control.

To my taste, gun control advocates are hard to beat for pure nastiness, cranking the rhetoric volume to 11 even as they insist that they’re advocates for peace. It’s par for the course for them to call people who defend the self-defense rights of innocent people “terrorists” with “blood on their hands.” Outside the home of Senate Majority Leader Mitch McConnell (R-Ky), they wished for somebody to “stab the motherfucker in the heart.”

“Americans have a lot of work to do, and that work starts with calling those you disagree with politically murderers,” joked the satire site The Babylon Bee in response to the heated verbiage.

McConnell’s party is up to the challenge of amping up the language in turn. Just weeks ago, Republicans sent chills down the spines of their opponents with calls to deport a group of left-wing members of Congress, most of whom were born and raised in the United States. They should “go back and help fix the totally broken and crime infested places from which they came,” president Trump said. “Send her back,” his supporters chanted at a rally.

Leading up to the recent vileness competition, Americans had already stoked their mutual dislike to a roaring blaze. While the 2016 presidential race was still being waged, Pew Research reported that “partisans’ views of the opposing party are now more negative than at any point in nearly a quarter of a century.”

Just “negative” views of each other? Oh, those were innocent and carefree days!

By fall of 2018, an Axios poll found that roughly half of the surveyed Democrats and Republicans alike considered each other “ignorant” and “spiteful.” More strongly, 21 percent of Democrats said Republicans were “evil,” and 23 percent of Republicans said the same about Democrats.

Considering your political opponents “ignorant,” “spiteful,” and “evil” is a bigger deal than just having negative views about them because it raises the stakes in the fight over the vast power of the modern state. Government controls law enforcement, the regulatory apparatus, and the intelligence community and the ability to target those powers wisely or malevolently. How do you casually walk away from a lost election if you think the people who won the ability to manipulate that apparatus are malicious and will wield their power stupidly and spitefully?

Chances are, the thought of being ruled by evil people fills you with dread. And you ramp up the insults and apocalyptic language accordingly, with all that entails.

By last month, 78 percent of Americans told pollsters that “heated or aggressive” language in political debate makes violence more likely. Americans should know. Beyond politically motivated shootings and street fighting involving a tiny minority, too many people in this country really are ready to start swinging.

Reporting that over 40 percent Americans now say the political opposition is “downright evil” and many think the country would be better off if opponents “just died,” a paper published this year shows a shift toward acceptance of political violence.

“Violence would be justified” if the opposing party wins the 2020 presidential election say 18 percent of Democrats and 13 percent of Republicans, according to the report by Nathan P. Kalmoe and Lilliana Mason, political scientists at Louisiana State University and the University of Maryland.

But coming out on top doesn’t make things better. Anticipating an election win increased support for violence in the study.

That’s disturbing. It also may be inevitable. “I told you so,” the ghost of Alexis de Tocqueville gets to say, if he’s the gloating sort.

“Several particular circumstances in America also tend to make the power of the majority not only predominant, but irresistible,” de Tocqueville wrote in his often prescient 19th-century study of the United States. He warned that majoritarian dominance would breed conflict.

“If liberty is ever lost in America, it will be necessary to lay the blame on the omnipotence of the majority that will have brought minorities to despair and will have forced them to appeal to physical force. Then you will see anarchy, but it will arrive as a consequence of despotism.”

At the prospect of being at the mercy of a temporary majority of their political enemies, Americans clearly are brought to despair. Anarchy sounds like a fair alternative to being governed by either Republicans or Democrats empowered to turn their mutual loathing into official policy.

Those of us who reject both hateful factions are likely in for as rough a ride as the supporters of whichever legacy party gets the short end of the stick. We’re not with the in-group, so we’re bound to be regarded as enemies by whoever wins.

Dialing down the power of the state is always a good idea, and doing so long ago might have avoided the current situation by reducing the stakes of our political contests. But we’re stuck with the government we have and it’s being fought over by squabbling bands of lunatics who hate each other.

Refusing to submit to whoever comes out on top in the national screaming contest is just good sense.

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Rage Rules American Politics

In the wake of two high-profile mass shootings over the weekend, the conversation got a little vitriolic in America. Again.

Screaming at each other over policy disputes, the loudest segments of the population set out to prove that they are unworthy to ever be trusted with the power to rule over people with whom they disagree. They made their case well, and it would be advisable to refuse deference to any government that any of them control.

To my taste, gun control advocates are hard to beat for pure nastiness, cranking the rhetoric volume to 11 even as they insist that they’re advocates for peace. It’s par for the course for them to call people who defend the self-defense rights of innocent people “terrorists” with “blood on their hands.” Outside the home of Senate Majority Leader Mitch McConnell (R-Ky), they wished for somebody to “stab the motherfucker in the heart.”

“Americans have a lot of work to do, and that work starts with calling those you disagree with politically murderers,” joked the satire site The Babylon Bee in response to the heated verbiage.

McConnell’s party is up to the challenge of amping up the language in turn. Just weeks ago, Republicans sent chills down the spines of their opponents with calls to deport a group of left-wing members of Congress, most of whom were born and raised in the United States. They should “go back and help fix the totally broken and crime infested places from which they came,” president Trump said. “Send her back,” his supporters chanted at a rally.

Leading up to the recent vileness competition, Americans had already stoked their mutual dislike to a roaring blaze. While the 2016 presidential race was still being waged, Pew Research reported that “partisans’ views of the opposing party are now more negative than at any point in nearly a quarter of a century.”

Just “negative” views of each other? Oh, those were innocent and carefree days!

By fall of 2018, an Axios poll found that roughly half of the surveyed Democrats and Republicans alike considered each other “ignorant” and “spiteful.” More strongly, 21 percent of Democrats said Republicans were “evil,” and 23 percent of Republicans said the same about Democrats.

Considering your political opponents “ignorant,” “spiteful,” and “evil” is a bigger deal than just having negative views about them because it raises the stakes in the fight over the vast power of the modern state. Government controls law enforcement, the regulatory apparatus, and the intelligence community and the ability to target those powers wisely or malevolently. How do you casually walk away from a lost election if you think the people who won the ability to manipulate that apparatus are malicious and will wield their power stupidly and spitefully?

Chances are, the thought of being ruled by evil people fills you with dread. And you ramp up the insults and apocalyptic language accordingly, with all that entails.

By last month, 78 percent of Americans told pollsters that “heated or aggressive” language in political debate makes violence more likely. Americans should know. Beyond politically motivated shootings and street fighting involving a tiny minority, too many people in this country really are ready to start swinging.

Reporting that over 40 percent Americans now say the political opposition is “downright evil” and many think the country would be better off if opponents “just died,” a paper published this year shows a shift toward acceptance of political violence.

“Violence would be justified” if the opposing party wins the 2020 presidential election say 18 percent of Democrats and 13 percent of Republicans, according to the report by Nathan P. Kalmoe and Lilliana Mason, political scientists at Louisiana State University and the University of Maryland.

But coming out on top doesn’t make things better. Anticipating an election win increased support for violence in the study.

That’s disturbing. It also may be inevitable. “I told you so,” the ghost of Alexis de Tocqueville gets to say, if he’s the gloating sort.

“Several particular circumstances in America also tend to make the power of the majority not only predominant, but irresistible,” de Tocqueville wrote in his often prescient 19th-century study of the United States. He warned that majoritarian dominance would breed conflict.

“If liberty is ever lost in America, it will be necessary to lay the blame on the omnipotence of the majority that will have brought minorities to despair and will have forced them to appeal to physical force. Then you will see anarchy, but it will arrive as a consequence of despotism.”

At the prospect of being at the mercy of a temporary majority of their political enemies, Americans clearly are brought to despair. Anarchy sounds like a fair alternative to being governed by either Republicans or Democrats empowered to turn their mutual loathing into official policy.

Those of us who reject both hateful factions are likely in for as rough a ride as the supporters of whichever legacy party gets the short end of the stick. We’re not with the in-group, so we’re bound to be regarded as enemies by whoever wins.

Dialing down the power of the state is always a good idea, and doing so long ago might have avoided the current situation by reducing the stakes of our political contests. But we’re stuck with the government we have and it’s being fought over by squabbling bands of lunatics who hate each other.

Refusing to submit to whoever comes out on top in the national screaming contest is just good sense.

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via IFTTT

Gun Control Cases to Watch at the Supreme Court

The U.S. Supreme Court has not heard a major gun control case since 2010’s McDonald v. Chicago, in which that city’s handgun ban was struck down for violating the constitutional right to armed self-defense, a right that was itself first recognized by the Court in 2008’s District of Columbia v. Heller. In the years since, the Court has had multiple opportunities to weigh the constitutional merits of other gun control laws, but it has declined to hear any of those cases.

Until now. When the Supreme Court reconvenes for its new term in October, a major gun control case awaits the justices. At issue in New York State Rifle and Pistol Association v. City of New York is a New York City law that forbids licensed handgun owners from possessing, carrying, or transporting their weapons outside of their homes. The only exception is for the transportation of such weapons, unloaded and locked in a container, to and from an authorized gun range within the city.

The New York State Rifle and Pistol Association argues that this restriction violates the right to keep and bear arms. The city “bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition,” the association notes in its brief, “and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.”

The city argues that its restriction is fully consistent with both the Constitution and Supreme Court precedent. “The core right protected by the Second Amendment is the right to possess a handgun in the home for purposes of self-defense,” the city maintains. Therefore, “the City’s premises handgun license rule does not substantially burden petitioners’ Second Amendment rights.”

Does the Second Amendment right to keep and bear arms apply outside of the home? That is the fundamental question facing the Court in New York State Rifle and Pistol Association v. City of New York. How the Court answers that question will have ramifications for the future of gun control laws throughout the nation.

There is another significant case touching on gun rights to watch at the Supreme Court in the days ahead. Last week, the gun manufacturer Remington filed a petition asking the Court to review a March 2019 ruling by the Connecticut Supreme Court that allowed families of the victims of the 2012 Sandy Hook Elementary School shooting to move forward with a civil lawsuit against the gun maker whose weapon, the Bushmaster XM15-E2S rifle, was used by the killer.

Here’s how the Connecticut Supreme Court described the lawsuit at issue in Soto v. Bushmaster Firearms International:

They allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S rifle for civilians to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior.

Such lawsuits against gun makers are generally prohibited by the federal Protection of Lawful Commerce in Arms Act of 2005 (PLCAA), which shields “manufacturers, distributors, dealers, or importers of firearms or ammunition” from being sued over “the misuse of their products by others.” But the Connecticut Supreme Court allowed this particular lawsuit to proceed on the grounds that the PLCAA did not disrupt the state’s traditional police power to regulate “advertising that threatens the public’s health, safety and morals.” The Sandy Hook victims’ families, the state high court held, “are entitled to have the opportunity to prove their wrongful marketing allegations” under the Connecticut Unfair Trade Practices Act.

Remington wants the Supreme Court to give that ruling a second look. “Because all states have analogous unfair trade practices laws,” Remington argues in its petition, “the decision below threatens to unleash a flood of lawsuits nationwide that would subject lawful business practices to crippling litigation burdens.” The Supreme Court “must intervene now,” Remington maintains, to “correct the Connecticut Supreme Court’s misreading of the PLCAA, and prevent a renewed wave of lawsuits of precisely the kind Congress sought to preempt.”

If the Supreme Court agrees to hear the case, now known as Remington Arms Co. v. Soto, and then overturns the state court’s ruling, similar state lawsuits against gun makers will be effectively barred nationwide. But if the Court declines to hear the case, and thus leaves the state court’s ruling in place, a great many such lawsuits will undoubtedly be filed, thereby opening a major new front in the national debate over guns.

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Gun Control Cases to Watch at the Supreme Court

The U.S. Supreme Court has not heard a major gun control case since 2010’s McDonald v. Chicago, in which that city’s handgun ban was struck down for violating the constitutional right to armed self-defense, a right that was itself first recognized by the Court in 2008’s District of Columbia v. Heller. In the years since, the Court has had multiple opportunities to weigh the constitutional merits of other gun control laws, but it has declined to hear any of those cases.

Until now. When the Supreme Court reconvenes for its new term in October, a major gun control case awaits the justices. At issue in New York State Rifle and Pistol Association v. City of New York is a New York City law that forbids licensed handgun owners from possessing, carrying, or transporting their weapons outside of their homes. The only exception is for the transportation of such weapons, unloaded and locked in a container, to and from an authorized gun range within the city.

The New York State Rifle and Pistol Association argues that this restriction violates the right to keep and bear arms. The city “bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition,” the association notes in its brief, “and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.”

The city argues that its restriction is fully consistent with both the Constitution and Supreme Court precedent. “The core right protected by the Second Amendment is the right to possess a handgun in the home for purposes of self-defense,” the city maintains. Therefore, “the City’s premises handgun license rule does not substantially burden petitioners’ Second Amendment rights.”

Does the Second Amendment right to keep and bear arms apply outside of the home? That is the fundamental question facing the Court in New York State Rifle and Pistol Association v. City of New York. How the Court answers that question will have ramifications for the future of gun control laws throughout the nation.

There is another significant case touching on gun rights to watch at the Supreme Court in the days ahead. Last week, the gun manufacturer Remington filed a petition asking the Court to review a March 2019 ruling by the Connecticut Supreme Court that allowed families of the victims of the 2012 Sandy Hook Elementary School shooting to move forward with a civil lawsuit against the gun maker whose weapon, the Bushmaster XM15-E2S rifle, was used by the killer.

Here’s how the Connecticut Supreme Court described the lawsuit at issue in Soto v. Bushmaster Firearms International:

They allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S rifle for civilians to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior.

Such lawsuits against gun makers are generally prohibited by the federal Protection of Lawful Commerce in Arms Act of 2005 (PLCAA), which shields “manufacturers, distributors, dealers, or importers of firearms or ammunition” from being sued over “the misuse of their products by others.” But the Connecticut Supreme Court allowed this particular lawsuit to proceed on the grounds that the PLCAA did not disrupt the state’s traditional police power to regulate “advertising that threatens the public’s health, safety and morals.” The Sandy Hook victims’ families, the state high court held, “are entitled to have the opportunity to prove their wrongful marketing allegations” under the Connecticut Unfair Trade Practices Act.

Remington wants the Supreme Court to give that ruling a second look. “Because all states have analogous unfair trade practices laws,” Remington argues in its petition, “the decision below threatens to unleash a flood of lawsuits nationwide that would subject lawful business practices to crippling litigation burdens.” The Supreme Court “must intervene now,” Remington maintains, to “correct the Connecticut Supreme Court’s misreading of the PLCAA, and prevent a renewed wave of lawsuits of precisely the kind Congress sought to preempt.”

If the Supreme Court agrees to hear the case, now known as Remington Arms Co. v. Soto, and then overturns the state court’s ruling, similar state lawsuits against gun makers will be effectively barred nationwide. But if the Court declines to hear the case, and thus leaves the state court’s ruling in place, a great many such lawsuits will undoubtedly be filed, thereby opening a major new front in the national debate over guns.

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Free Speech on the Internet Continues to Confuse Everyone

There’s a lot of weird and bad information these days about the federal law known as Section 230. The New York Times even put out an op-ed trying to fight the common myth that social media companies are “platforms” that lose legal protections provided by Section 230 if they start making editorial decisions like “publishers.” (In reality, the law makes no distinction and requires no such neutrality.) Nonetheless, the Times has started spreading its own extremely misguided analysis of the law. So misguided that the paper was forced to issue a correction, after running a headline on the front page of Tuesday’s business section claiming that Section 230 legalized hate speech and was why “hate speech on the internet is a never-ending problem.”

On Tuesday afternoon, Times writer Daisuke Wakabayashi tweeted “Disclosure: We are correcting this story and headline because it incorrectly suggests that Section 230 protects hate speech. The first amendment already does that.” 

Tech lawyers and others have been deservedly dragging the paper:

But correcting blatantly wrong (and suspiciously bad faith) tech analysis is like playing whack-a-mole these days. Today, The Wall Street Journal lets Dennis Prager do his own misrepresentations of Section 230:

Meanwhile, 8chan is the latest tech company to have its creator summoned to testify before Congress.

FREE MINDS

A “data privacy” bill before Congress is being held up over different priorities between Republicans and Democrats. Sen. Maria Cantwell (D–Wash.) was circulating “a privacy framework that would allow consumers to sue companies for mishandling their data. That ‘private right of action’ is a non-starter for industry and Republicans,” reports The Hill. More:

Other prominent sticking points in the negotiations have included the Republican push to include preemption, which would allow the federal law to override state laws. Preemption has been a top priority for the tech industry, which has warned against a “patchwork” of state laws, but Democrats insist they won’t approve any law that is weaker than the California one. 

“We believe that having one standard is important,” Sen. John Thune (R–S.D.), a member of the Senate privacy working group and GOP majority whip, told The Hill. “And of course, the Democrats have their priorities in this as well.

FREE MARKETS

The makers of Arizona Iced Tea are getting into weed. From The Wall Street Journal:

Arizona Beverage Co. has reached a licensing deal with Dixie Brands Inc., a Denver-based cannabis company that makes and sells weed vaporizers, candies, drinks, tinctures and topical creams in five U.S. states. Under the agreement, Dixie will manufacture the products and sell them through licensed dispensaries. The deal, which is subject to approval by Dixie’s board, also gives Arizona the right to buy a stake of up to $10 million in the cannabis company.

Plans for the Arizona line are in the early stages. It is likely to start with vape pens and gummies, followed by a variety of beverages that could include tea, lemonade, soda, coffee or seltzer, officials said. Dixie intends to launch the line in the U.S., then expand it to Canada and Latin America.

ELECTION 2020

Mike Gravel has dropped out of the 2020 race:

Meanwhile, Trump is at war with Democratic candidate Beto O’Rourke:

And some reassessments of the 2020 Democrats after their last debate:

QUICK HITS

  • An 18-week abortion ban in Arkansas has been temporarily blocked. The judge “specifically addressed the 18-week ban, implying that she would ultimately rule in favor of the abortion rights advocates on the grounds that it is unconstitutional,” reports CNN.
  • The governor of Florida ordered an investigation into the state’s previous handling of Jeffrey Epstein.
  • After 15 years in prison, Cyntoia Brown has been freed on parole. Brown has been incarcerated since she was 16 and killed a man trying to pay her for sex. She was granted clemency after activists, including celebrities Kim Kardashian West and Rihanna, lobbied for her release.
  • Uh oh:

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Free Speech on the Internet Continues to Confuse Everyone

There’s a lot of weird and bad information these days about the federal law known as Section 230. The New York Times even put out an op-ed trying to fight the common myth that social media companies are “platforms” that lose legal protections provided by Section 230 if they start making editorial decisions like “publishers.” (In reality, the law makes no distinction and requires no such neutrality.) Nonetheless, the Times has started spreading its own extremely misguided analysis of the law. So misguided that the paper was forced to issue a correction, after running a headline on the front page of Tuesday’s business section claiming that Section 230 legalized hate speech and was why “hate speech on the internet is a never-ending problem.”

On Tuesday afternoon, Times writer Daisuke Wakabayashi tweeted “Disclosure: We are correcting this story and headline because it incorrectly suggests that Section 230 protects hate speech. The first amendment already does that.” 

Tech lawyers and others have been deservedly dragging the paper:

But correcting blatantly wrong (and suspiciously bad faith) tech analysis is like playing whack-a-mole these days. Today, The Wall Street Journal lets Dennis Prager do his own misrepresentations of Section 230:

Meanwhile, 8chan is the latest tech company to have its creator summoned to testify before Congress.

FREE MINDS

A “data privacy” bill before Congress is being held up over different priorities between Republicans and Democrats. Sen. Maria Cantwell (D–Wash.) was circulating “a privacy framework that would allow consumers to sue companies for mishandling their data. That ‘private right of action’ is a non-starter for industry and Republicans,” reports The Hill. More:

Other prominent sticking points in the negotiations have included the Republican push to include preemption, which would allow the federal law to override state laws. Preemption has been a top priority for the tech industry, which has warned against a “patchwork” of state laws, but Democrats insist they won’t approve any law that is weaker than the California one. 

“We believe that having one standard is important,” Sen. John Thune (R–S.D.), a member of the Senate privacy working group and GOP majority whip, told The Hill. “And of course, the Democrats have their priorities in this as well.

FREE MARKETS

The makers of Arizona Iced Tea are getting into weed. From The Wall Street Journal:

Arizona Beverage Co. has reached a licensing deal with Dixie Brands Inc., a Denver-based cannabis company that makes and sells weed vaporizers, candies, drinks, tinctures and topical creams in five U.S. states. Under the agreement, Dixie will manufacture the products and sell them through licensed dispensaries. The deal, which is subject to approval by Dixie’s board, also gives Arizona the right to buy a stake of up to $10 million in the cannabis company.

Plans for the Arizona line are in the early stages. It is likely to start with vape pens and gummies, followed by a variety of beverages that could include tea, lemonade, soda, coffee or seltzer, officials said. Dixie intends to launch the line in the U.S., then expand it to Canada and Latin America.

ELECTION 2020

Mike Gravel has dropped out of the 2020 race:

Meanwhile, Trump is at war with Democratic candidate Beto O’Rourke:

And some reassessments of the 2020 Democrats after their last debate:

QUICK HITS

  • An 18-week abortion ban in Arkansas has been temporarily blocked. The judge “specifically addressed the 18-week ban, implying that she would ultimately rule in favor of the abortion rights advocates on the grounds that it is unconstitutional,” reports CNN.
  • The governor of Florida ordered an investigation into the state’s previous handling of Jeffrey Epstein.
  • After 15 years in prison, Cyntoia Brown has been freed on parole. Brown has been incarcerated since she was 16 and killed a man trying to pay her for sex. She was granted clemency after activists, including celebrities Kim Kardashian West and Rihanna, lobbied for her release.
  • Uh oh:

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