Monthly Archives: October 2014

Yesterday the Supreme Court heard oral arguments in Bonidy v. United States, which is an as-applied challenge to the U.S. Postal Service regulation which completely prohibits firearms on all postal property, including parking lots. Mr. Bonidy lives in Avon, Colorado, and has a concealed carry permit issued pursuant to Colorado law, following a fingerprint-based background check, safety training, and the County Sheriffs determination that he does not pose any threat to himself or others.

The post office does not provide home delivery in Avon, so residents must go to the post office to pick up their mail from a box. The local post office is open 24 hours a day, has counter staff 6 hours a day, and provides no security for patrons.

In the District Court, Judge Richard Matsch upheld the postal ban for the post office lobby (where patrons access their mail boxes), ruling it to be among Hellers sensitive places. He ruled the gun ban unconstitutional as applied to Mr. Bonidy and the parking lot at the Avon Post Office. The case thus came to the 10th Circuit on cross-appeals by the parties. Mr. Bonidy is represented by the Mountain States Legal Foundation. Some of the documents in the case (but not the appellate briefs) are available on the website of Michel and Associates, a southern California firm with a specialty in firearms cases. Like me, Michel and Associates has no role in the case.

Heres my take on some of the issues that the three-judge panel raised at oral argument:

Heller says that nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. A footnote adds: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

First question: What should lower courts do with presumptively lawful? Does this mean that any law in the three listed categories (felons/mentally ill, sensitive places, conditions on commercial sale of firearms) must automatically be upheld? After all, as Judge David Ebel pointed out at oral argument, Heller must be construed so as not to cast doubt on the listed laws. Doesnt this mean that all such laws are undoubtedly constitutional?

Lets try applying that interpretation, to see if it makes sense. Say that a regulation requires that when the owner of a retail gun store goes home for the night, the store must have security devices to prevent/deter theft, including that guns must be locked up. This is an easy fit with the Heller dicta, and can speedily be held as lawful.

But suppose that the anti-theft rule is that every gun in the store must be disassembled before the store closes at night. Or that the gun store may only be open for business five hours per week. Or that only persons with a college degree may work in a gun store. All of these would be conditions and qualifications on the commercial sale of arms. These laws are manifestly oppressive, extreme, and unreasonable. They should be subject to heightened scrutiny, and with heightened scrutiny applied, should be ruled unconstitutional.

So one way to answer the question about presumptively lawful would be to say that the presumption can be overcome. The more unreasonable, oppressive, or excessive the regulation, the better the argument that the presumption has been overcome. In this argument, it also matters whether the regulation is longstanding. The Postal Service gun ban only dates back to the early 1970s, just a few years before the District of Columbia enacted its 1975 handgun ban and ban on use of firearms for self-defense in the home. The D.C. ordinances were obviously not longstanding by Hellers standards, and s neither is the postal ban.

Now that we know that the presumption of lawfulness can sometimes be rebutted, the next question is what is the scope of sensitive places such as schools or government buildings? We have to take into account that in the single sentence about permissible gun controls, the Supreme Court was providing general guidance, and was not attempting to provide a detailed rule to cover all situations.

See the original post here:
Volokh Conspiracy: Bonidy v. United States: The Second Amendment at the post office

LOS ANGELES Two years ago Chris Cheng came out of nowhere to beat seasoned marksmen, police officers and veterans to win History Channels reality shooting competition show Top Shot.

When I auditioned, I was openly gay. But I was surprised as nobody cared. They only cared how well I could shoot and represent our season, said Cheng, who quit his job at Google after the show and is now an NRA news commentator and is releasing his first book Shoot to Win. There is this stereotypical view of the gun community as anti-gay rednecks, but nothing could be further from the truth. It was interesting as the History Channel never outed me on the show even though they had hours of footage. I asked why and they said simply that it just wasnt relevant.

Indeed gay rights and gun rights often go hand in hand says Gwen Patton, the rep for gay gun rights organizationPink Pistols National.

We dont want people to hurt us, we want people to run away from us, and the best way we have found to do that is to be armed, Patton said. Now if someone tries to attack us, we can defend ourselves. Ideally we dont want any altercation at all, but if there is a perception that the gay person on the street could have a concealed gun, it might make the perpetrator think twice.

According to FBI Hate Crime Statistics, sexual orientation is the second largest motivator for bias crimes in the United States, second to racial bias, and far exceeding the number of religious or ethnically-spurred hate crimes.

Patton said while she has never had to use her firearm in defense, another gay member of a local Philadelphia chapter recently did.

All he had to do was display it, no bullets were fired, she said. Guns can be a very useful tool, but society has turned them into something they are not. They arent the boogeyman.

There are now more than 45 Pink Pistols chapters nationwide. With its slogan pick on someone your own caliber, members get together at least once a month at local ranges to practice their shooting skills, share self-defense tips and talk about gun safety. According to Cheng, bringing gays and guns together serves as an important conversation starter.

Many in the LGBT community simply have never seriously entertained the notion of owning a firearm, or thought whether they want to be a victim or if they want to survive an attack, he said, while Patton says it's false that the right is all about keeping firearms, while the left pushes gay rights.

So some think of us as traitors, she explained. But at the end of the day, its about recognizing that the government shouldnt be taking our rights away our rights to be armed, and our rights to be happy and with the person we love.

Read the rest here:
Gay gun activists: Growing LGBT push to support the Second Amendment