Monthly Archives: March 2022

The meaning and scope of the Second Amendment has long been one of the most hotly contested constitutional issues in the United States. In 2008, the U.S. Supreme Court ruled that the amendment protects the rights of individuals to have and use guns for legal purposes. At the same time, however, the Court clearly said that the Second Amendment right isnt unlimited. Since that decision, other courts in the country have upheld mostbut not allfederal, state, and local gun control laws.

The long-running argument over the Second Amendment largely stems from its language, especially at the beginning: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. For decades, many scholars and courts interpreted the amendment as preserving states authority to keep militias, which would mean that the right to have firearms was linked to militia service. But in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court opted for a broader interpretation, finding that the Second Amendment gave individuals a right to have gunsunconnected to any militia serviceand to use them for traditionally legal purposes like self-defense.

The Supreme Court said that the law involved in Heller was unconstitutional because it essentially banned all handgunsthe most popular type of gun Americans choose for the core lawful purpose of self-defense. It also kept people from using their guns to defend their families and property by requiring them to keep all firearms trigger-locked or dissembled, even in the home.

Like most constitutional rights, the Second Amendment rights is not unlimited.

What about other kinds of guns and other reasons for having them? Like most constitutional rights, the Heller Court explained, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. In the years since that decision, theres been a flood of legal challenges to federal and state gun control laws. According to one study, in 94 percent of those cases, courts have found that reasonable gun regulations didnt violate the Second Amendment. Theyve mostly relied on the Heller Courts explanation that its ruling shouldnt cast doubt on several longstanding gun restrictions, including bans on gun ownership by certain individuals (like felons), prohibitions on some types of dangerous and unusual weapons, limits on carrying firearms in certain public places, and requirements for gun sales. Although federal law covers some of these restrictions, most gun control is a patchwork of state and local laws and regulations. That means it can be wildly different from place to place.

Federal law outlaws the possession of firearms or ammunition by several categories of people, including:

(18 U.S.C. 922(g).)

Many states prohibit or restrict gun possession by other groups of people, such as stalkers and people subject to other kinds of restraining orders, minors, juvenile offenders, and those convicted of alcohol- and/or drug-related crimes.

Several states also allow courts to order some people to give up their guns temporarily if they pose an immediate risk to themselves or others (under so-called "red flag laws").

Under federal law, its illegal for civilians to have fully automatic weapons (referred to as machine guns in 18 U.S.C. 922(l)). In a rule that became effective in March 2019, the federal government outlawed "bump stock" devices (which attach to semiautomatic weapons to produce automatic firing with one pull of the trigger) by defining them as machine guns for purposes of federal law (27 C.F.R. 447.11).

Another federal law that banned assault weapons (semiautomatic firearms with certain features) expired in 2004, and attempts to renew it have failed so far.

Still, a handful of states and local governmentsincluding California, New Jersey, and New Yorkhave their own prohibitions or restrictions on assault weapons that have withstood court challenges. And although the Heller Court ruled out blanket bans on handguns, many states regulate handguns by requiring permits to buy them.

As the Supreme Court recognized in Heller, guns have traditionally been prohibited or restricted in certain public places under federal, state, and local laws. These sensitive places include schools, government buildings and courtrooms, public transit facilities, airports, and polling stations.

A U.S. appellate court has held that the Second Amendment doesnt protect carrying a concealed weapon in public (Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013)). Most states require a concealed-carry permit, but the conditions vary a lot from state to state. The strictest laws allow authorities to deny a permit when the applicant doesnt have a good moral character or a good reason for carrying a gun in public. The most lenient require authorities to issue the permit to anyone who applies, with little or no discretion. Nearly all states restrict concealed weapons in some places, such as bars, hospitals, and public sporting events. But several states allow concealed weapons on public college campuses, under legislation or state court rulings that overturned longtime bans.

Finally, some states have open carry laws that ban or set conditions on openly carrying certain types of guns in public or in private cars.

Licensed gun dealers have to meet several requirements under federal law, including performing background checks, keeping records of sales, and reporting multiple sales of handguns to the same person (18 U.S.C. 923). But those requirements dont apply to private sellers, including those at gun shows. Some states have stronger laws, and a few require licensing for the sale of all guns.

If you believe that a local law or regulation infringes on your Second Amendment rights as a gun owner, you might want to speak with a civil rights attorney about your options for challenging the restriction. And if youve been charged with a crime related to owning, carrying, or using a gun, you should strongly consider consulting with a criminal defense lawyer. The circumstances in each case are unique, and the laws vary in different states and localities. An attorney whos experienced in this area can explain how the relevant laws apply in your situation and what defenses you might have.

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The Second Amendment: What Are the Limits on the Right to ...

Scholars and activists began to argue for an individual right to bear arms, but it would be another 31 years until the Supreme Court laid pen to paper on the 2008 and 2010 decisions that allowed citizens to keep weapons in their homes.

It was controversial. In both cases, four justices thought the amendment is just about the militia, but thats not what prevailed, says Liebell, explaining that the courts chose to rule in favor of an individuals right to self-defense, grounded in common law.

Fast forward to 2021 and New York State Rifle & Pistol Association v. Corlett, a case involving two NYSRPA members, Robert Nash and Brandon Koch. Nash and Koch had individually applied for a concealed-carry firearm license for the purpose of self-defense, citing recent neighborhood robberies (Nash) and completion of a firearms safety course (Nash and Koch).

However, both parties were denied the specific license they requested under New Yorks proper cause standard for self-defense. The law requires that an individual have a special need for self-protection distinguishable from that of the general community.

What exactly qualifies as a special need under New York law?

If youre carrying money at night, if youre doing business with people at weird hours when others arent around: Those are the scenarios in which they regularly grant this, Liebell says, adding that domestic violence survivors may also fall into this category. Its far more common than you would think.

New Yorks proper cause standard qualifies it as one of nine states with a may-issue permit policy. This means that a permit is required to carry a concealed handgun and that the granting of said permit is subject to certain criteria laid out by the state. Even then, it is up to local authorities discretion whether or not to grant the permit by determining proper cause.

Before the 14th Amendment was passed and ratified in 1868, states like Indiana, Tennessee, Virginia, Alabama, Ohio, all banned concealed weapons. You had to actually hand over your guns and put them in a box to come into Dodge City or Tombstone, Arizona places we associate with guns in the Wild West, says Liebell. So, youve got to look at the many laws that have restricted concealed carry.

New Yorks may issue is just one interpretation of the Constitution; other regulationsrange from not requiring an individual to have a permit to carry a concealed weapon, to not allowing individuals to carry a concealed weapon at all.

In a federal system like ours with 50 states, the Constitution is there to set certain standards, and then the states and localities have to actualize those standards, explains Liebell.

And so, it is up to the Supreme Court to determine if New Yorks decision to deny a license falls under its local purview, or if it violates Koch and Nashs Second Amendment rights.

There are several directions the court could go in next month and, with a number of new justices and a conservative-majority bench, it will be hard to predict which way theyll lean.

We do not know exactly what they are willing to do in terms of textualism, which is exactly what the text says, or original understanding at the time, which is very fraught and establishing it, in my scholarly opinion, is really impossible, says Liebell.

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Supreme Court to Hear Landmark Second Amendment Case ...

Proposal filed by Representative Josh Bray

FRANKFORT, Ky. (WTVQ) On Thursday, members of the House voted to approve a proposal filed by Representative Josh Brays legislation that makes Kentucky a Second Amendment Sanctuary State. The bill, HB 29, would prohibit identified entities from enforcing federal firearm bans.

Representative Bray spoke on the House floor Thursday about the importance of his legislation for the gun owners of Kentucky, Over the past year, we have seen an increase in the rhetoric. It comes from as far away as the Oval Office as the President calls for additional federal firearm restrictions.

According to the Legislative Research Commission (LRC), HB 29 would prevent any federal firearm regulations enacted after January 1, 2022, from being enforced with Kentucky tax dollars or tax payer dollars. Across the United States, 15 states have enacted similar legislation, according to the LRC. Also 115 out of the 120 counties in the commonwealth have passed similar resolutions. The bill simply prohibits the enforcement of firearm bans. It does not prevent the federal government from enforcing any new law or regulation or prevent the General Assembly from enacting new laws or restrictions.

We are all too familiar with government overreach. As we speak, the administration is looking to ban pistol braces. A ban on these braces would make felons out of thousands of Kentuckians overnight. Let me be clear: this would be without a single legislative vote cast. Were talking about law-abiding Kentuckians criminalized by a regulatory change, Rep Bray added.

The bill passed with a vote of 75-20 and now awaits further action in the Senate.

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Bill aimed at protecting 2nd amendment rights passes on House floor - ABC 36 News - WTVQ

We live in contentious times. According to a 2020 study by the National Bureau of Economic Research, political polarization among Americans has grown rapidly during the last 40 years.

Theres evidence that within the U.S., the two major political parties have become more homogeneous in certain ways, including ideologically and socially, said Jesse Shapiro, a co-author of the study and a professor of political economy at Brown University. So when you identify with a certain party and youre looking across the aisle, the people youre looking at are more different from you than they were a few decades ago.

Given the degradation of political discourse in our country and the growing list of hot-button issues pitting us against friends and neighbors, its easy to see the divide. But as Sunshine Week begins this year, lets remember that no matter where we stand on a particular topic, we all need accurate information to shape our opinions and best advocate for ourselves.

The mission of Sunshine Week March 13-19 this year with related events occurring throughout the month is to promote a dialogue about the importance of open government and freedom of information. The sunshine reference is attributed to U.S. Supreme Court Justice Louis D. Brandeis who famously wrote that sunlight is said to be the best of disinfectants. In other words, an informed citizenry is the best check against government corruption.

This is the idea behind state public record and open meeting laws, as well as our federal Freedom of Information Act. Government transparency is a non-partisan principle that transcends whos in office or which political party is in control. Freedom of information or sunshine laws open up government and empower people through information.

The University of Southern California Annenberg School for Communication and Journalism published a report last fall analyzing the polarization in our country. The report identified the most contentious issues which included gun legislation, policing, and vaccines. As Americans, we may have starkly different opinions about these issues. But consider the common ground we can find when looking at them relative to government transparency.

To have an informed debate about gun legislation, for example, it may be helpful to know basic data points like how many firearms are being manufactured in the country or the number of gun-related deaths each year. We may need to determine where its most difficult to obtain a firearms license or to read emails among government officials looking to curtail Second Amendment rights.

Before we discuss whether a police department should be defunded, we should first determine how much funding that agency receives. How is money spent within local, state, and county law enforcement agencies? For us to have a conversation about police officers using force against citizens, we need to know the policies within each department and under what circumstances lethal or non-lethal force can be used.

More than two years into the COVID-19 pandemic, debate still rages about vaccine efficacy and government mandates. Fueling that debate is a steady flow of misinformation that can be counteracted by federal data on vaccine trials, statistics on state resident vaccinations, local school district vaccine requirements for teachers and students, and other vaccine-related records.

While sunshine laws vary from state to state, all this information should be available to us through public record statutes and federal Freedom of Information Act. Wherever we ultimately land on the issues, these laws exist to provide us a way to learn about government and better support our positions.

But despite the mandated sunshine, shadows persist. Public record request deadlines are often ignored. Inadequate staffing and request backlogs result in delays. Documents are excessively redacted. Citizens are shut out of public meetings. The flow of information can be slowed to a glacial pace.

This is a reality that should concern us all. Every American should be waving the banner for government transparency. The consequences of secrecy affect not just our ability to have good-faith debates about the issues that matter most, but they also limit our ability to oversee government and the work it does on our behalf. When it comes to transparency, were all stakeholders.

So, here are a few things we can do to honor Sunshine Week:

Thoughtful debate about serious issues is central to our democracy, wrote the authors of the Annenberg study. But solving real problems is impossible when every issue is viewed through a distorted lens that is often informed by sources who create their own facts to further their own power.

Sunshine laws are integral to thoughtful debate. They can provide us the knowledge needed to form opinions about whats best for this country and how well our government is leading the way. But those laws need to be protected and strengthened. Thats something we can all agree on.

Justin Silverman is executive director of the New England First Amendment Coalition. Learn more about the coalitions work at nefac.org.

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Sunshine Week 2022: We should all agree on government transparency (Viewpoint) - MassLive.com

In any negotiation to stop Vladimir Putin's unprovoked terror war against the Ukrainian people,maywe add one small demand that he open his borders to anti-Americans here at home?

I think he would be good with that.

I know I would.

I'm talking about the gun-toting, flagpole-wielding insurrectionists, those faux-truckers with their faux demands for faux freedom from wearing masks they weren't wearing anyway at least not over their noses and all those folks who want to push their religious beliefs or unbelievably idiotic conspiracy theories on the rest of us, the reasonably educated "elite."

RELATED:The "People's Convoy," like Trump's social media platform, is a right-wing grift gone bust

Anyone who (at least until very recently) has openly praised Putin as being a stronger leader than their own president.

Ajury just reached the first conviction of a Jan. 6 insurrectionist, and he will be sentenced in June. Given that there are something like 750 cases coming up for the Justice Department to deal with, some have suggested that the judge in that case will hand out a severe sentence to encourage others to make a plea deal.

What if these defendants were given the freedom to make a different choice one that would save the country the expense of a trial and likely incarceration? They could emigrate to Mother Russia. (It might be more appealing if Putin rebrands that as "Daddy Russia," given the general misogyny and repressed erotic longing found on the American right.)

It's nice to see Republican support for Ukraine's struggle against Russia's war after a fair amount of initial hedging and polls show a vast majority of Americanssay theyare willing to deal with increased gas prices to support the overall effort. But there is no doubt that Republican leadership will start blaming President Biden for rising gas prices the moment they think they can get away with it oh wait,they never stoppedas if he, or any president, has any control over the price at the pump.

But to all true-red Putin fanboys, like Fox News "personality" Tucker Carlson, and those who, like him, see in Russia or Hungary a model for our future, I say: Go. Democracy makes you feel veryuncomfortable, like reading some generally beloved literature. And lots of science. And a good deal of history. And, now,gender studies.

The problem with you is that your oft-stated desire to "be free" is mostly about imposing your religious beliefs on others and curtailing your fellow citizens' freedom to life, liberty and the pursuit of their own happiness including the liberty and happiness one feels as a citizen in casting a ballot, exercising democratic responsibility and feeling that fundamental sense of agency in the world.

Your idea of freedom is that everyone is free to think like you do. (How Putin-esque!)Are your antidemocratic impulses a good fit for living in the increasingly diverse United States of America in the 21st century? Let me put it in a wayyou'll comprehend: Nyet.

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Perhaps the AARP magazine should include Russian Federation statesand allied countriesin upcoming features on the best places to retire. You know, the AARP staff could provide additional categories for aging Americans with pro-Putin leanings to consider. Along with the standard categories of taxes, recreation and health care, they could include how adeptly officials in the region suppress protesters, women and journalists, or how helpful they are to folks who want to launder money in the West. Some wealthy Americans might choose to retire to, say, Belarus or Kyrgyzstan instead of Florida (and not go through the current endless hassle of turning FloridaintoBelarus or Kyrgyzstan). For less affluent Russia lovers, "Borscht-ing on a Budget" and "Surviving andThriving in a Siberian Winter!" are a couple of feature story ideas that immediately come to mind.

Here at home, we would also love to be free of your endless trolling which is an impulse, come to think of it, that could stand you in good stead in the Russian Federation or its allied states. As would that strong desire you seem to have lately to suppress the vote, rat on your neighbors andturn them in to the authorities(which, OK, can sometimesbackfire).

You would have the freedom to live in a land where books don't need to be banned or burned, because theysimply aren't published in the first place; where LGBTQ rights are unknown, partly because such acronyms, as well as human rights in general, remain unworkable in Russian; and where women and people of color know better than to raise their voices as full human beings.

You know, those good old "real American" values!

We can save the nation, and the union, while not breaking it up by states or counties or ceding our reddest counties to the protectorate ofPutin's lame alt-NATO, the CSTO. You and your fellow Putin admirers, along with evangelicals (who don't comprehend the First Amendment), gun fetishists (who don't comprehend the Second Amendment) and white supremacists (who don't understand the 14th, the 15th and well, any number of amendments, as well as the life and message of Jesus) can live in a country much better suited to your zealotry and fervent beliefs.

As Christian historian Jemar Tisby, author of the bestselling "The Color of Compromise" and "How to Fight Racism," has extensively discussed, American white Christians being hellbent on white nationalism is nothing new.Writer, farmer and philosopher Wendell Berry called our deep reluctance to acknowledge our racist historyAmerica's hidden wound, and the right is very busy now further covering it up.

But fear not, Republicans Putin has your back. His form of Christianityis said to bemore about power and ideology than theology. And many Americans on the right, who have been encouraged to fear an "elite" left and to hate their political opponents for advocating diversity and inclusion in our pluralistic, multicultural democracy,greatly admire any "strongman"who might make it all go away, with a big assist from alike-minded Supreme Court.

The horrific human scenes of devastation we are witnessing from cellphone and amateur video coming out of Ukraine may be momentarily silencing mostPutin aficionados and apologists in the United States, but don't think for a moment that they don't still love him.

Watching courageous Ukrainians pushing back against the little Russian tyrant, with their lives and homeland on the line, and an empathic and competent American president methodically working with the leaders of a strengthened NATO against him, should make us appreciate the strength inherent in the American promise which is painfully slow, yes, but still a promise, a worthy aspiration of greater justice for all, as well as the creative energy that comes from our blessed diversity of thought and cultures.

I want to feel as proud of my homeland as the Ukrainians obviously do theirs.

That trucker convoy was an AstroTurf bogus protest, but a "freedom convoy" of insurrectionists and QAnoners and authoritarian-loving Putin-stooges in Congress and the media packing up and heading straight out of this country would bethe real thing.

Let's forge a moment of rare bipartisan consensus and make your freedom convoy and ours a reality.

Read more on the Ukraine conflict and how we got here:

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A "Freedom Convoy" we can all support: Send the truckers to Russia! - Salon