Although the Second Amendment “right to possess and carry weapons in case of confrontation” is supposed to belong to all Americans, right now Adult Americans age 18-20 are excluded from the commercial market for handguns. They may vote, enter contracts, and marry. They are eligible to serve in the military and die for their country. And they have, obviously. But they are prohibited by the federal Government from purchasing handguns and handgun ammunition commercially. They can buy rifles or shotguns commercially, but not handguns, which according to the SCOTUS is “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.” See McDonald v. City of Chicago (2010) (quoting Heller).
This week we filed a memorandum in support of our motion for summary judgment in the Second Amendment Foundation’s federal lawsuit against the ATF challenging the ban on sales of handguns to 18-21 year olds. Here’s the filing:
Following New York State Rifle & Pistol Ass’n, Inc. v. Bruen, if a law restricts conduct falling within the scope of the Second Amendment’s text, as the federal Government’s Handgun Ban does, that law is presumed invalid and can only be saved if the government demonstrates the existence of a “distinctly similar historical regulation” that burdened the right to bear arms in the same way and for the same reasons.
Of course, that doesn’t exist. At the time the Second Amendment was ratified, not only were there no laws in any state that purported to limit the rights of 18 to 20 year olds to purchase handguns for self defense, there were several laws enacted, including the Militia Acts of 1792, that required 18 year olds to buy and maintain firearms.
The correct historical period in examining the public’s understanding of the Right to Keep and Bear Arms is 1791. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” See Heller. The Second Amendment was adopted in 1791.The Government directs the Court to look at laws adopted in the late 19th century and beyond to justify their Handgun Ban. The Supreme Court has already made clear that 1791 is the appropriate period.
Even at the time that the Fourteenth Amendment was ratified, in 1868, only two states had a ban like the Handgun Bun and it would be another five years before another state adopted such a law. The ATF cannot point to any historical tradition that could justify the federal government’s attempt to deviate from the plain text of the Second Amendment. Therefore, we are asking the federal court to declare the federal Handgun Ban unconstitutional.
On February 21, 2018, Putnam County Sheriff’s Office Deputy B.E. Donahoe responded to a complaint relayed from the emergency dispatch center that someone had reported that there was an individual walking down the side of a public road while in possession of a firearm. The individual was the plaintiff, Michael Walker, who being a victim of epileptic seizures, does not have a driver’s license. He was headed coyote hunting, and had a rifle strapped over his back, along with a backpack. Deputy Donahoe brutally insulted Mr. Walker, who was being polite, but insisting that he had committed no crime, and therefore should not be stopped and forced to hand over his ID. Donahoe repeatedly called him a “c_cksucker” while forcibly detaining him and running a criminal background check on him and questioning him as to why he would need an AR-15. The incident was fully captured on video by Mr. Walker.
At the time Deputy Donahoe responded to the scene, he possessed no prior knowledge of Mr. Walker. All he knew about Mr. Walker is what he observed when he arrived at the scene, which was observing him walking down the side of the road. He didn’t recall who had called 911, or specifically what the complainant had stated, other than that there was a guy walking down the side of the road with a firearm. Upon arriving at the scene, he observed Mr. Walker walking down the side of the road with a rifle “strapped across his back,” with the muzzle of the gun pointed towards the sky.
Upon arriving at the scene, Mr. Donahoe did not observe Walker committing any criminal activity. Nor was he informed by any other source that any crime had been committed by any individual. Walker was just walking. Donahoe had no indication that Mr. Walker was a person prohibited from possessing a firearm. Donahoe testified that he did not observe Mr. Walker doing anything unsafe with the rifle strapped on his back; nor did he observe the rifle in Mr. Walker’s hands; nor did he observe Mr. Walker acting threatening in any way. His only reason for stopping Mr. Walker was to find out if he was a prohibited person.
As portrayed by video footage taken by Mr. Walker with his phone, the interaction was not consensual. Donahoe gave Mr. Walker “no choice” in the matter. He told him during the stop that he was not free to leave until he was done with his investigation. Donahoe explained that the only investigation he was undertaking at the time, to which Mr. Walker was forced to submit, was to run Mr. Walker’s criminal history report, in order to determine whether he “was a person that could possess a firearm.” Admittedly, he had no information indicating that Mr. Walker may have been a prohibited person.
The case is over. We lost. Compare the video footage of the encounter with the legal aftermath, from the trial court level, through appeal to the Fourth Circuit, oral arguments, and ending with a deeply flawed published Fourth Circuit opinion. This case demonstrates what I refer to as a Bermuda Triangle of civil rights law….
Here we are following the hearing at the U.S. District Court in Huntington, West Virginia.
The U.S. District Court granted summary judgment for the officer, dismissing the lawsuit filed by Michael Walker. The order essentially created a carve-out for AR-15 style rifles from the usual reasonable suspicion analysis:
Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.
Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.
The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm. See Embody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).
The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. See Deffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).
Together, these facts would form a particularized and objective basis for an investigatory stop.
Ben was in Las Vegas for DEFCON, the world’s largest annual hacker convention. Ben’s day job is in the field of cybersecurity. He was staying at the Paris Las Vegas Hotel. Around 11pm on Sunday, August 14, he’s startled out of a sleep, in his dark hotel room. There’s pounding on the door. He walks to the peep hole in his underwear, peers through and sees what appears to be armed law enforcement in tactical gear.
He’s ordered out of the room, in his underwear. They then search his room for firearms. They’re not law enforcement, but rather the hotel’s “Special Response Team.” They refuse to explain the basis for their belief that Ben has firearms in his room. In addition to working in cybersecurity, Ben is also involved in the firearms community, and operates the Open Source Ordinance Youtube channel, where he posted the originals of these videos. Here’s the main video:
Here’s the second one:
Many people know the basic rule that constitutional rights can only be violated by government officials, and that therefore they don’t protect us from private actors. At first blush, this seems to be the case here. Despite their appearance, these were private security guards. There may be Nevada state law protections at play, but it’s difficult to implicate federal civil rights protections. That would require a bit of legal gymnastics. But the more I research this, after having watched this footage, I think there are some possibilities.
There are actually quite a few cases out there discussing private hotel security and constitutional rights. Many of these arise out of criminal cases. There are actually cases where federal courts have attributed state action, and Fourth Amendment violations, to private hotel security. However, these cases involve the question of suppressing evidence in criminal cases. Basically, if private security searches a hotel room, then police arrive, there may be a sufficient connection to establish state action by the private security. There was actually a Las Vegas casino found liable for Section 1983 violations in a Ninth Circuit opinion, where they had a system of working with the police in issuing citations, performing certain law enforcement functions. That was Tsao v. Desert Palace, Inc., from 2012.
In the last few years, with concern over active shooters, certain hotels in Las Vegas have apparently formed their own SWAT teams, so as to provide what is essentially a faster law enforcement response. There may be facts there, depending on the level of interaction between the hotels and local law enforcement, to show a similar system of privatization of law enforcement. Where that’s the case, government shouldn’t be allowed to avoid Section 1983 liability by merely delegating their law enforcement functions to private corporations. So there may be a theory of liability there.
Another possibility, the thought of which is fueled by the speculation here regarding the source of the hotel’s belief that Ben had firearms in his room, is that perhaps the federal government is indeed compiling, maintaining, and sharing information about the firearms community with private corporations responsible for site security. We don’t know if that was the case here, but can we really take anything off the table at this point? If that were true, that could be another potential basis for federal civil rights liability.
I suspect we will be seeing more of this type of activity in the future, just as we’ve been seeing troubling behavior out of the ATF, as well as the FBI. Instead of a social credit score, perhaps they have a firearms community score. Do you have access to machine guns? Well, you may have a great credit rating.
Today, the Supreme Court of the United States held that the Second and Fourteenth Amendments protect the right to carry firearms in public. Ultimately, the Court held that: “New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” The ruling specifically challenged the law in New York, but will also apply to the eight other states that still maintain “may-issue” gun permitting laws, including California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island.
The Bruen litigation challenged concealed-carry restrictions under N.Y. Penal Law § 400.00(2)(f) that requires a showing of “proper cause” for the issuance of a carry permit. Lower courts upheld the New York law, but there were ample constitutional concerns over its vague standard, such as showing that you are “of good moral character.” New York wanted to exercise discretion in deciding who needs to carry guns in public, while gun owners rightfully argued that the law flips the constitutional presumption onto gun owners, rather than the government.
The 6-3 majority opinion, authored by Justice Clarence Thomas and joined by Justices Alito, Gorsuch, Kavanaugh, Barrett, and Chief Justice Roberts, rejected the “two-step” approach often employed by lower courts since the McDonald v. Chicago in 2010, saying that the Constitution “demands a test rooted in the Second Amendment’s text, as informed by history.”
The Court expressly held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Quoting the McDonald plurality opinion, the Court held that: “The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”
The Court said that: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”
Prior to today, the SCOTUS had only established a right to have a handgun in one’s home under the Second Amendment. Now, as was hoped for, and widely expected, the Court has now recognized that the right to “bear” arms includes the right to do so outside the home. States such as New York obviously still have numerous gun laws in place which restrict and affect this right. Going forward, Justice Thomas’s opinion means that courts should uphold gun restrictions only if there is a tradition of such regulation in U.S. history.
Thomas correctly notes that in 1791, there was no broad prohibition on the public carry of firearms, with their exclusion only being limited to certain “sensitive places.” Some of the more low-information politicians and commentators out there today argue that only muskets were available in 1791, and that therefore we should now be limited to muskets. Setting aside the obvious flaws in their logic, which would likewise render the First Amendment inapplicable to modern forms of communication and technology, the story of America is interwoven with the invention, use, and perfection of, the American Longrifle. Which by its very definition is not a musket, and which was used respectively in war, acts of self defense, as well as for other uses such as recreation and hunting. One could also point out that cannons were indeed available in 1791, including ships full of them, lawfully available for private ownership and operation.
In response to the opinion, New York Governor Kathy Hochul expressed that she believed the opinion to be “absolutely shocking that they have taken away our right to have reasonable restrictions.” We can see where this is headed in blue states such as New York. What happens when state and local governments refuse to enforce federal constitutional law, such as the Bruen decision? The remedy available to citizens is to sue under 42 U.S.C. Section 1983 (i.e., a federal civil rights lawsuit).
But no so fast, since this is where qualified immunity comes in. There’s usually a lag period in between a change in the law and the time in which the federal courts will hold governmental officials (police officers) liable under Section 1983 for civil rights violations. The excuse is generally that police officers can’t be expected to know of every change in the law as it occurs and should be given what is essentially a grace period. Will that happen here if lawsuits are necessary (which I guarantee they will be), and if so, how long will that grace period last? We shall see…. It doesn’t help that federal law enforcement is already announcing their “respectful” disagreement with the opinion.
The U.S. Department of Justice issued a press release today:
“We respectfully disagree with the Court’s conclusion that the Second Amendment forbids New York’s reasonable requirement that individuals seeking to carry a concealed handgun must show that they need to do so for self-defense. The Department of Justice remains committed to saving innocent lives by enforcing and defending federal firearms laws, partnering with state, local and tribal authorities and using all legally available tools to tackle the epidemic of gun violence plaguing our communities.”
Wait, how does separation of powers work? Also, which Article or Amendment to the Constitution creates and governs the DOJ? I suppose the Framers should have provided an option for an agency of the executive branch to “respectfully disagree” with a “conclusion” of the Supreme Court.
Qualified immunity will not be a defense to cities and county governments who adopt policies and practices that violate federal constitutional rights, now including the Second Amendment as defined by Bruen. This is because political subdivisions cannot assert qualified immunity, as per the U.S. Supreme Court, who created qualified immunity out of thin air in the first place. State governments, on the other hand, have no need to assert federal qualified immunity, because they cannot be sued for money damages in federal courts.
Closing arguments today in the Kyle Rittenhouse trial. Post-trial legal analysis, Live at 7pm ET. Also, the firearms possession count – count 6 – was dismissed by the judge prior to closing arguments beginning. The evidence is closed and attorneys for each side gets to make their arguments to the jury. Here’s my take…. Join me Live at 7:00 p.m. ET. Freedom is Scary – Ep. 83.
Here’s the Petition for Rehearing and Petition for Rehearing En Banc we filed yesterday in the Walker AR-15 open carry case, which will give effectively stay the case while the other judges on the Fourth Circuit have an opportunity to review our petition and consider whether to get involved.
If the Panel Opinion remains, Black is meaningless, because there will always be “more” available to any police officer. Even if an individual has violated no law, they will be subject to detainment based on any speculative crime which generally could be committed by any anonymous person. A man walking in the direction of any woman might be a rapist, given that he would appear to have the physical ability to carry out a rape. Any driver of a car heading in the direction of any other human being might be a potential murderer, because they appear to have the physical ability to run-over people, should they so choose. The analogies could go on and on because, like the Michael Walker case, these scenarios are all generalized, rather than based on individualized reasonable suspicion.
Deputy Donahoe did, and claims to have done numerous other times, exactly that which Black forbade: to assume that being a felon in possession of a firearm was the default status; that, without more, he could detain and ID anyone he saw with a firearm. He admitted that he had no information that Walker may have been a prohibited person. (J.A. 162:5-8). Donahoe admitted under oath that had no indications that Mr. Walker was a threat to anyone, nor appeared to have any ill intentions (J.A. 167:1-4). Donahoe told Mr. Walker at the beginning of the stop, “At this point, I have the absolute right to see whether you’re legal to carry that gun or not.” (See J.A. 209 – Video of Incident).
The District Court acknowledged that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Black, 707 F.3d at 540 (J.A. 326). There was no “more.” Walker had committed no crime. He wasn’t observed committing a crime. Not a single person alleged that a crime was committed by Michael Walker. To allow a police officer’s subjective fear of AR-15s, or of theoretical copycat crimes, to be utilized as “more,” effectively swallows the rule. This opens the door to racial profiling, and so on. To allow the Panel Opinion to stand is to unravel Black, and important civil rights protections.
On the heels of the Fourth Circuit’s awful anti-gun opinion in the Walker case, comes an opinion today which holds that 18-20 year olds have a constitutional right to keep and bear arms under the Second Amendment. Federal law prohibits the sale of handguns and handgun ammunition to 18-20 year olds by licensed dealers. In an opinion written by Judge Richardson (appointed by Trump), the Court held that “Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged laws impermissibly burden those rights.”
There are many things that minors and even those under 21 cannot do. See Ent. Merchs. Ass’n, 564 U.S. at 836–37 (Thomas, J., dissenting) (explaining that minors cannot drive for hire or drive a school bus, buy tobacco, play bingo for money, or execute a will). But none of those restrictions implicate constitutional rights, so states have great leeway to regulate those activities under their general police powers. And while the Court has “recognized that the State has somewhat broader authority to regulate the activities of children than of adults,” that does not mean that children necessarily have different rights than adults. Danforth, 428 U.S. at 74. Often they have the same rights as adults, but the states’ interests are stronger with regard to minors so restrictions may more easily pass constitutional scrutiny. Ent. Merchs. Ass’n, 564 U.S. at 794–95. So it is hard to conclude that 18- to 20-year-olds have no Second Amendment rights when almost every other constitutional right affords them protection. This conclusion becomes inescapable when we consider the history.
Congratulations to West Virginia’s first Second Amendment “Sanctuary,” Putnam County, in obtaining a new anti-gun diatribe of a published opinion from the Fourth Circuit. This morning, the Fourth Circuit issued a published opinion in the Walker case. Basically, the Second Amendment doesn’t apply to the AR-15, and it matters not that the WV legislature allows its citizens to possess and use AR-15s, because the judiciary decides what peasants may possess – not the state legislature.
I knew it was going to be bad, since at the oral arguments one of the judges likened the AR-15 to the M-16. And he ended up authoring the opinion. You can listen to the oral arguments here, if you missed them.
Join me live at 7pm for a discussion on the ruling:
Just today the WV Governor signed a bill making WV a Second Amendment sanctuary of sorts from the federal government. There’s a lot of things going on in the world of federal gun control efforts at the moment. The GOA – Gun Owners of America is neck deep in fighting back against it. With me tonight is Luis Valdes, the Florida Director of the GOA, a well known Second Amendment advocate to discuss what’s going on.
The U.S. Supreme Court recently held oral arguments in the Caniglia v. Strom case, where law enforcement has been seeking the official establishment of a “community caretaking” exception to the warrant requirement which protects a person’s home. You can listen to the arguments here.
You can hear that the justices are concerned/obsessed with the hypothetical scenario of an elderly person having fallen, or been injured, in her home. Some neighbor of family member calls for the police. They show up at the door; there’s no answer; can they go in without a warrant? If they don’t, maybe the woman has “fallen and can’t get up.” And maybe she doesn’t have Life Alert…..
That’s the hold up here. The questions from the Court didn’t sound promising at all. This is a case where both the ACLU and the Gun Owners of America submitted amicus briefs. This is a we-the-people vs. the government issue. Unfortunately, the Court seems overly concerned about the potential liability of police officers who engage in wellness checks.
But it’s really a non-issue. The proper answer to Judge Roberts’ hypothetical is the reality that there never would be civil liability for an officer who technically violates the Fourth Amendment just by checking on grandma during a wellness check. Why? Because of qualified immunity. Any lawsuit stemming from such a scenario would be granted qualified immunity. And even if he/she weren’t, the measure of our constitutional rights is not a policy analysis about the costs or efficacy of law enforcement agencies, who have insurance for these reasons, defending against civil lawsuits.