The Heller Gun Decision Week Three--Fun and Games Continue

Having said that, I for one would note that going from a banned market to a regulated market creates a number of issues that people need to be aware of. This situation creates all kinds of opportunities for mischief and as such I hope that in drafting the ordinance – including the amnesty or “get legal” portions the City Government coordinated with the United States Attorney’s office which prosecutes most crimes (whether based on local DC or federal law) within the District. The reason the USAO needs to be consulted is that irrespective of local DC law, a lot of guns probably were brought into DC in violation of the federal Gun Control Act of 1968 or were represent stolen property. Unless the amnesty provisions were done in conjunction with the USAO, there is likely to be a lot of self-incrimination and use immunity issues that DC stumbles into.

The real issue is - unless Congress gets into this before that time - the final ordinance because to find persons who have standing to sue on this takes some time. The only one with an enforceable order is Dick Heller and assuming that he in fact presents his gun that the Supreme Court stated that he was allowed to register for registration, he should be issued a registration ASAP.

The new ordinance has created new opportunities for persons to fulfill their agendas – starting with the NRA and editorial writers. Bob Levy while not attacking registration has attacked – properly – the emergency regulations but his client Mr. Heller was not exactly under “client control”. In terms of political mischief, last year, for whatever reason, from derailing the initial lawsuit to causing problems to then new House Speaker Nancy Pelosi, when legislation came up to give DC voting representation in the House, House Republicans made as part of a motion to recommit the bill a vote on the DC Personal Protection Act” as an amendment to the main bill.

The DC Personal Protection Act is a NRA sponsored/supported bill proposed by US Representative Mark Souder from Indiana’s 3rd Congressional District. Souder is a Republican. The Indiana Third is centered in Northeastern Indiana and includes all of DeKalb, Kosciusko, LaGrange, Noble, Steuben and Whitley counties as well as well as the majority of Allen (Fort Wayne) and Elkhart counties.

Representative Souder has been criticized back home (remember Paul Helmke of the Brady Campaign used to be Mayor of Fort Wayne which is in Souder’s district) for focusing more on DC and less on the issues of concern to Hoosiers. In fact, in the local media it is being stated that this is all about Mark Souder wanting to have a gun in DC. I should add that Souder’s district is far more marginal than people realize – he almost lost in 2006. If Senator Obama puts Senator Evan Bayh on the ticket as his VP, Souder could be gone.

Representative Souder – while he is Conservative Republican - is NOT your typical Republican cipher though this particular legislation is idiocy. The DCPPA would rewrite DC’s firearms laws which Congress can do as DC is a federal enclave - to repeal registration and do other things. The legislation has major-major drafting errors that will no doubt receive CLOSE scrutiny and issues and in many ways is a hit piece on the author. From both the pro and anti-gun side, it is a “target rich” piece of legislation.

Why House GOP Minority Leader John Boehner who has 25 moderate members in swing districts voting on this and thereby in the “Zeltner Masher Basher” is beyond me. I can see the hit pieces now against Mark Kirk, Chris Shays, Jim Gerlach, Pat Tiberi, several Republicans from Michigan, and others on this.

In any, event, in the face of the motion to recommit, the main bill was pulled from the floor. At that point Messrs. Levy and Gura called out the NRA and the NRA agreed to desist in pushing any DC legislation until Heller was decided. The DC representation legislation eventually did pas the House but died in the Senate under the threat of a Presidential veto.

One of the main results of this was that the House Democratic Leadership became very-very careful in taking legislation up for votes. In fact, House Majority Leader Steny Hoyer threatened a rules rewrite to neuter the Motion to Recommit – a right that the Minority has had since 1814 – to avoid the DCPPA antics in the future. While Hoyer did drop that, the House Rules Committee in writing rules for bills for consideration on the floor has reshaped bills and has set the terms of the Motion to Recommit such that Hoyer got in practice approximately 75% of what he wanted.

In any event, Souder (with NRA support) is back pushing the DCPPA because while he stated several of the provisions in the emergency regulations were defensible, a lot of this was garbage. While as I noted above he was criticized in the local Indiana press on this, the DCPPA is out there. In the US Senate, there are not the same types of tight controls that exist in terms of offering amendments and these DC antics may trigger such an action.
As such, it is unclear if DC bought some time to get its act together. While Congress is winding down to a close these interim regulations are a major-major problem.

What is clear is that unless there is a firm commitment that the final regulations are much more streamlined and less onerous DC should watch out – it may have to anyway given the way that the US Senate operates. Nancy Pelosi and Harry Reid are not putting their members at risk on this issue. As such, immediate action may be required to revise the emergency regulations.

Also, Council and Mayor Fenty are also taking local political risks unless the final – or even the interim ordinance is rewritten - ordinance is much more streamlined. Besides DC losing major chunks of Home Rule by immediate Congressional action, they may face major local threats – to their jobs. As I have noted before, DC is not only losing population, but the makeup of the electorate has radically changed. The voting majority is now upper income – primarily whites – but also with a large upper and middle class African Americans voting pool. Polling suggests that while these voters want: (i) a strictly regulated market in guns; but (ii) they want to participate in that market.

The final – or revised interim regulations - need to do the following at a minimum: (i) the semiautomatic ban needs to be rewritten to reflect 1932 Congressional intent; (ii) “must serve” by Mr. Sykes and others is required; (iii) the trigger lock revise is a “non starter and must go; (iv) registration streamlined; and (iv) safe transport without a permit is required. Other changes are probably required. The VOTERS in want to bar the troublemakers from having guns while they can get them. DC officials have to find that balance or they will be out of jobs. Mr. Heller’s supporters may be aware of these same trends which is why he is apparently running for DC Delegate – though the antics today were counterproductive to his cause.

In terms of other fronts, here are several items of interest on the academic media discussion and in the States.

First, because of the wording of Heller and the new emphasis on the “privileges and immunities clause”, a number of commentators are now arguing at www.volokh.com and other venues what privileges and immunities mean in general, whether there is a US Constitutional Right of Self Defense as a privilege and immunity specifically as Justice Scalia implied in Heller, and related issues. There is also a back and forth commentary at www.cato-unbound.org on the meaning of Heller with essays by Bob Levy, Dennis Henigan of the Brady Campaign, Dave Kopel of the Independence Institute, and Professor Erwin Chemerinsky.

It is very clear - at least to me - that what Justice Bushrod Washington wrote in Corfield v. Coryell as to what are "privileges and immunities” was incorporated into the 1846 Iowa Constitution. The language from Iowa is as (Iowa Const., Art 1, § 1) is: All men and women are, by nature, free and equal, and have certain inalienable rights--among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness and is found in the Constitutions (give or take a little) in the constitutions of at least 26 other States – with many also having an individual right to keep and bear arms clause. That language – with more – is found in the California Constitution in Article 1, § 1. (Those states that have Iowa Art. I, § 1 style language that do not have an individual rights clause to keep and bear arms of some kind are California Iowa, and New Jersey.)

In California, the California Supreme Court relied on the self-defense language California Constitution Article 1, § 1 repeatedly in various contexts. In Kasler v. Lockyer (2000) 23 Cal.4th 472 in her concurrence Justice Janice Rogers Brown noted this issue and I think she generally got it right. She is now on the DC Circuit Court of Appeals. Incidentally, the "add on" procedure upheld in Kasler was repealed as of 1/1/2007. As such, this right of self defense has a good “privileges and immunities” pedigree and it is apart from the Second Amendment or state versions thereof.

In addition – as noted at Professor Volokh’s website – since Heller has been decided there have been numerous and failed attempts by felons, persons who wish to bring weapons into government buildings, and those who wish to acquire and possess machine guns, short barreled rifles, etc. to invoke their “Second Amendment Rights”. They have been rebuffed by references specifically to comments by Justice Scalia in Heller itself.

Notwithstanding that fact, Don Kates sent out a blast email today on why convicted felons have no right to arms. Those reasons per Don are: “1) the right to arms has always been limited to the virtuous citizenry; 2) under the common law known to the Founding Fathers felons were ‘civilly dead’i.e. they had no rights at all.”

Finally, I wanted to make reference to mechanics issues as I believe that they are the new area of interest. First, the NRA on its website posted a column by Chicago Sun Times Columnist Mark Brown about Chicago’s gun registration ordinance and supporting the rewrite of Chicago’s gun laws brought by Team Gura – there is a discreet one brought by Team NRA. It concludes with the comment “Gun control laws shouldn't discourage gun registration.” That is a valid and direct point.

Two, on July 14, Governor Granholm of Michigan signed into law – and the NRA to its credit supported this - a modernization and streamlining of its process whereby “pistols” (per Mich.Comp.Law.Ann. § 28.421(e) any firearm with an overall length of less than 30 inches) were subject to licensure and registration in Michigan. Prior to the 3 bill package (and there are 5 more bills which have to be rewritten to reflect these changes including a very important “get legal” bill by Representative Rick Jones), a license was required to acquire or carry (which the means possession per Banks v. Police Department, 454 N.W.2d 198, 199 (Mich. App. 1990) – a fact reiterated in People v. Marrow, 534 N,.W.2d 153, 155 fn. 4 (Mich. App. 1995) –, and Lyons v. United States, 794 F.Supp. 238, 239 (E.D.Mich. 1992), affirmed 940 F.2d 663 (6th.Cir. 1992)– and the issuance of the license required passage of a background check and a written test which was and is fair and neutral.

The license was good for I believe 10 days. Once the gun was acquired on the license, the gun itself then had to be transported to a police facility to be “inspected” aka registered.

Without getting overly detailed, the law was changed in the 3 bill package to allow people to bring the licensed “pistol” in but removed the mandate and used modern computer technology to register the gun. However, the burden remained on the licensee to turn in the paperwork. At the same time, the legislation explicitly and presumptively prohibits a person from possessing a pistol in Michigan without first having obtained a license for it. This last point was implicit in the word "carry" but made explicit in code and codifies Banks, Marrow and Lyons.

A substantial amount of credit for this reform goes not just to the NRA, but also Governor Granholm who was directly involved in this process, Sergeant Matt Bolger of the Michigan State Police, and the Great Lakes Shooting Sports Association.

Last, but not least, also earlier this week Evanston, Illinois aldermen unanimously voted to amend the city's 27-year-old handgun ban to comply with Heller. City officials acknowledged that in light of Heller and a NRA financed lawsuit that rather than engaging in a losing and expensive proposition, it would be the intelligent move to come up with a registration ordinance though the details have yet to be determined.

The City of Evanston apparently will seek to have the NRA lawsuit dismissed, based on its plan to bring the law into compliance with the court ruling. I will simply note that Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001) requires a formal court judgment for a party to gain 42 USC 1988 fees. Making sure that this is done right is a matter of fiduciary responsibility that rests on the NRA Board.

And, I will note that the NRA is (and has been since its founding in 1871) a New York Not For Profit Corporation, which is relevant because on June 25, 2008, the New York Court of Appeals handed down a major ruling in The People & v. Grasso which discussed the fiduciary duties of officers and directors of New York Not For Profit Corporations regulated by the Not-For-Profit Corporation Law.

Grasso arose out of litigation questioning the compensation paid by the New York Stock Exchange to Richard A. Grasso, Chairman and Chief Executive Officer from 1995 until his resignation in September 2003. The New York Stock Exchange was (until it became a New York For Profit Corporation in 2006) a New York not-for-profit corporation regulated by the Not-For-Profit Corporation Law.

While many of the cause of action were thrown out, the Court of Appeals did reaffirm that the New York Attorney General had automatic standing to enforce the Not-For-Profit Corporation Law. I sincerely doubt that the NRA wants New York AG Andrew Cuomo looking tightly over their shoulders.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.