Ruling in Palmer v. D.C handed down, Gura wins again

[browncoat]

Felons are just as arbitrary when you look at what are defined as felonies. Hell, adultery in MA is a felony. So you cheat on your wife, that makes you a PP?

Oh I certainly agree with you. As far as I'm concerned, drugs shouldn't result in felonies either. What I meant is that in order to be a felon you must have committed a felony, so in that sense I don't think a judge would consider that grouping to be arbitrary, since to acknowledge that would mean to acknowledge that laws themselves are arbitrary, which they are not supposed to be.

 

[Knuckle Dragger]

Not really, because felons are not an arbitrary group. The rate of recidivism alone makes felons a much better target for oppression, and courts have upheld "stop and frisk" where the facts were much less in favor of the policy.

To me this really goes to the question of whether the ability to exercise a right should be based upon one's 'need' to exercise that right or upon one's 'qualification' to exercise that right. The DC's policy is based upon need, which if you think about it, is completely antithetical to the idea of protecting a right. A right is pretty meaningless if the government can decide whether or not you 'need' to exercise it.

On the other hand, one can easily argue (t-former's observation not withstanding) that felons, or person's with a history of committing violent felonies, are no longer 'qualified' to exercise this particular right, providing appropriate due process protections are in place.

Felons are just as arbitrary when you look at what are defined as felonies. Hell, adultery in MA is a felony. So you cheat on your wife, that makes you a PP?

 

[browncoat]

To me this really goes to the question of whether the ability to exercise a right should be based upon one's 'need' to exercise that right or upon one's 'qualification' to exercise that right. The DC's policy is based upon need, which if you think about it, is completely antithetical to the idea of protecting a right. A right is pretty meaningless if the government can decide whether or not you 'need' to exercise it.

On the other hand, one can easily argue (t-former's observation not withstanding) that felons, or person's with a history of committing violent felonies, are no longer 'qualified' to exercise this particular right, providing appropriate due process protections are in place.

Just to be clear, I don't agree with any limitations on rights, based on qualifications or need. I think that it is pretty clear that the courts do, and thinking that SCOTUS is going to strike down GCA 68 PP ban is dreaming.

 

[terraformer]

On the other hand, one can easily argue (t-former's observation not withstanding) that felons, or person's with a history of committing violent felonies, are no longer 'qualified' to exercise this particular right, providing appropriate due process protections are in place.

Felons != person's with a history of committing violent felonies. One is arbitrary. The other is rather specific and not arbitrary.

 

[DispositionMatrix]

So who has applied for a D.C. carry license?
http://mpdc.dc.gov/page/applying-concealed-carry-pistol-license
http://mpdc.dc.gov/sites/default/fi...icenseApplicationInstructions102214_FINAL.pdf
http://mpdc.dc.gov/sites/default/fi...cense_GoodReason Application_fillableform.pdf

You have to apply in person and somehow receive the D.C. laws training offered by the approved instructors local to D.C.

In theory you would now leave the following unchecked and see how that works out. I am sure Lanier would not arbitrarily deny based on some other convenient criterion.

_ Good reason to fear injury to person or property
_ Other proper reason to carry a concealed pistol

 

[browncoat]

So who has applied for a D.C. carry license?
http://mpdc.dc.gov/page/applying-concealed-carry-pistol-license
http://mpdc.dc.gov/sites/default/fi...icenseApplicationInstructions102214_FINAL.pdf
http://mpdc.dc.gov/sites/default/fi...cense_GoodReason Application_fillableform.pdf

You have to apply in person and somehow receive the D.C. laws training offered by the approved instructors local to D.C.

In theory you would now leave the following unchecked and see how that works out. I am sure Lanier would not arbitrarily deny based on some other convenient criterion.

So here is a question that hasn't come up yet - DC isn't a state. That means (I think) that the GFZA exemption doesn't apply to a DC carry license holder. If that is true, how many places can you carry there anyway?

 

[NewGuyRay]

Felons != person's with a history of committing violent felonies. One is arbitrary. The other is rather specific and not arbitrary.

Great point. The number and types of crimes classified as felonies today is quite different than what was envisioned when the GCA of '68 was enacted. When violations of administrative law and of the endangered species act can result in felony convictions, I don't see how, in the context of SCOTUS and the application of at least intermediate scrutiny, the use of the 'felon' classification can be found a 'close fit' with the government's interest in promoting public safety. The number and types of offenses is just too broad.

Someone more knowledgeable than I can explain whether it is constitutional to use revocation of a fundamental right as a punitive measure once someone has completed the terms of their sentence. In this case we're talking about the denial of 2A rights to someone who has not been proven to be a threat to public safety.

 

[Rob Boudrie]

Felons != person's with a history of committing violent felonies. One is arbitrary. The other is rather specific and not arbitrary.

The felon prohibition is an example of how once a concept is ingrained in the collective culture, it becomes a "given". "Felon possession" and "Machine gun ownership not 2A protected" have been so well established that even people on our side often consider these points "givens" not worth arguing. Even Scotus, in Heller/DC went out of its way to note acceptance of these points.

It has gone further in Canada and Australia, where the concept of "self defense is no reason to own a gun" is so well accepted that anyone arguing to the contrary is regarded as lacking in any credibility.

 

[rivet_42]

Great point. The number and types of crimes classified as felonies today is quite different than what was envisioned when the GCA of '68 was enacted. When violations of administrative law and of the endangered species act can result in felony convictions, I don't see how, in the context of SCOTUS and the application of at least intermediate scrutiny, the use of the 'felon' classification can be found a 'close fit' with the government's interest in promoting public safety. The number and types of offenses is just too broad.

Someone more knowledgeable than I can explain whether it is constitutional to use revocation of a fundamental right as a punitive measure once someone has completed the terms of their sentence. In this case we're talking about the denial of 2A rights to someone who has not been proven to be a threat to public safety.

In many states, you also lose your right to vote permanently after a felony conviction. Many liberals have rightfully pointed out that this systematically and unfairly disenfranchises African-American voters, especially male ones. (They're rather less vocal about pointing out that it also disarms them.)

The original idea of a "felony" was that you had done a wrong to society that was so heinous that you deserved to become a kind of "un-person" for the rest of your life. However, as you point out, nowadays, "felony" penalties apply to all sorts of malum prohibitum things that are neither violent nor have a direct victim. It's probably time to ditch that legal principle, much as, in 1787, the Constitution ditched the legal principle that some felony convictions, notably treason, could affect your descendants. ("corruption of blood")

 

[NHAtHeart]

Did the original ruling create de-facto constitutional carry in DC if they didn't pass a new carry permit that was within the ruling?

 

[jujutsuka]

Whispers of the ruling spreading to NY, and other municipalities
http://nypost.com/2015/05/20/dc-loss-for-gun-control-puts-new-york-citys-laws-at-risk/

 

[NewGuyRay]

The felon prohibition is an example of how once a concept is ingrained in the collective culture, it becomes a "given". "Felon possession" and "Machine gun ownership not 2A protected" have been so well established that even people on our side often consider these points "givens" not worth arguing. Even Scotus, in Heller/DC went out of its way to note acceptance of these points.

It has gone further in Canada and Australia, where the concept of "self defense is no reason to own a gun" is so well accepted that anyone arguing to the contrary is regarded as lacking in any credibility.

Rob, just for clarification; this is or is not the position of Comm 2A with regard to the issue?

 

[Rob Boudrie]

Rob, just for clarification; this is or is not the position of Comm 2A with regard to the issue?

Comm2A does not take a political position on issues; we take legal positions.

We are realists and bring cases where we (a) believe the law is on our side, and (b) believe we have a reasonable chances of prevailing in court. We also sometimes get sucked into cases we never would have brought. For example, we would have never used the case of a 14 year old urban minority youth carrying an illegal handgun as the basis for a case contesting the unsealing of juvenile records, but we none the less participated in Chardin since someone else initiated the case. Note that we lost Chardin - something that our case analysis would have predicted as a serious risk given the nature of the offense and, as such, if it was our call, we would have waited for a more sympathetic plaintiff.

As to felons - it is possible we could encounter a case of a non-violent felon that is worth bringing, however, the comment about felons in Heller could make that difficult. Also, there are felonies that are not felonies for the purposes of 18USC922g. If you know of anyone who was denied a LTC due to a conviction under the Sherman-Clayton anti-trust act, let Comm2A know.

MA has misdafelonies (misdemeanors punishible by 2.5 years which exceeds the 2 year threshold to be a felony according to 18USC922g, including first offense OUI. We definitely do not concur with the conclusion that this should bring a state and federal lifetime prohibition, and it's on our radar screen.

The machine gun prohibition is even more problematic. We don't see any chance a MA court would over-rule the denial of a MG license on the basis of "because they are too dangerous" (the Framingham PD policy), so we probably won't be bringing a licensing appeal. Likewise, the chances of winning a federal case, given the limitations specifically called forth in Heller, as slim to none, so don't expect one of those from us.

So, it is not so much the "position" of Comm2A, but the result of "potential success/failure analysis" that drives the decisions on the cases we bring.

 

[rivet_42]

Presumably this ruling also kills the practice where some issuing authorities in MA require applicants to write a letter to the LO, justifying issuance of an unrestricted LTC? Usually such a letter requires stating why you are at greater risk of injury or death from violent crime than the average person (e.g. documented threats, routinely carrying cash or other valuable items in the course of employment).

 

[M1911]

Presumably this ruling also kills the practice where some issuing authorities in MA require applicants to write a letter to the LO, justifying issuance of an unrestricted LTC? Usually such a letter requires stating why you are at greater risk of injury or death from violent crime than the average person (e.g. documented threats, routinely carrying cash or other valuable items in the course of employment).

This ruling has no immediate affect on any MA practices. This is a district court ruling in the Washington DC district. It is not binding on Massachusetts.

 

[cekim]

The felon prohibition is an example of how once a concept is ingrained in the collective culture, it becomes a "given". "Felon possession" and "Machine gun ownership not 2A protected" have been so well established that even people on our side often consider these points "givens" not worth arguing. Even Scotus, in Heller/DC went out of its way to note acceptance of these points.

It has gone further in Canada and Australia, where the concept of "self defense is no reason to own a gun" is so well accepted that anyone arguing to the contrary is regarded as lacking in any credibility.

The archetypal example of how "stare decisis" works with with the "slippery slope" to doom us all without periodic and systemic resets of the legal code.

A Felony was traditionally a VERY serious crime (as in someone died, was maimed or lost a lot of money because of your malicious or grossly negligent act - malum in se). We've become incarceration happy because it buys votes and our prison and our imprisonment system is no longer quite as devastating as spending a year in prison once was.

Without a welfare state and endless printed money to pamper prisoners, a year in prison was a devastating punishment at one point in history. The "penitentiary" is a theological concept that has ingrained itself into our consciousness as well and needs to be re-thought. A year in prison would mean hard labor, poor access to healthcare, your family potentially going hungry and losing their lively-hood/farm/house if you were the provider.

The idea there (penitentiary) was to hold people in isolation for long periods so that they might "find Jesus". The reality, we know now, is that this is fast-track to driving even healthy people (or killer-whales) to insanity.

"Felony" has now been extended to everything and prison times have stretched into absurdity with sentencing guidelines. All we are really accomplishing is hardening criminals in training camps and providing them no reason to re-join civilized society if/when they get out.

 

[Coyote33]

Whispers of the ruling spreading to NY, and other municipalities
http://nypost.com/2015/05/20/dc-loss-for-gun-control-puts-new-york-citys-laws-at-risk/

What seems to have set Judge Scullin off is a local law that says that the police chief may issue a permit to carry a gun if “the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol.”

Washington, DC, requires the showing of actual death threats and complaints to the police. Living in a “high-crime” area isn’t enough, the law says. Permit applicants have to “allege, in writing, serious threats of death or bodily harm.”

I would think this is enough:
Statistics and Data


If not, how about this?

1) 'We are in your cities': Alleged ISIS terrorists threaten U.S. via Twitter; FBI orders police to be on high alert An eerie Aug. 9 tweet included photos of the ISIS flag in Chicago and in front of the White House and warned the country that "You are our goals anywhere." The FBI and the Department of Homeland Security have urged local police to be on high alert for possible homegrown terrorism.

2) ISIS Threatens America Again: ‘We Will Drown All Of You In Blood’

3) Dempsey: ISIS An ‘Immediate Threat’ From ‘Open Borders And Immigration Issues’

4) ISIS Threatens America: ‘We Will Raise The Flag Of Allah In The White House’

5) Chicago A Top Terror Target; Ominous Tweet Connects ISIS Threat In City

 

[cekim]

I would think this is enough:
Statistics and Data


If not, how about this?

Facts? Figures? ISIS? Oh just stop, none of that is conducive to the either emotional bleating of the faithful or the desire for power of the leaders getting their way via temper-tantrum.

Besides, they've already spoken on ISIS. Since they are unwilling to defend themselves and their family from violence and instead plan on "inking" (with urine) to stop crime and terrorism, they think we should all be forced to be as cowardly, inept and powerless as they are.

 

[NewGuyRay]

Comm2A does not take a political position on issues; we take legal positions.

We are realists and bring cases where we (a) believe the law is on our side, and (b) believe we have a reasonable chances of prevailing in court. We also sometimes get sucked into cases we never would have brought. For example, we would have never used the case of a 14 year old urban minority youth carrying an illegal handgun as the basis for a case contesting the unsealing of juvenile records, but we none the less participated in Chardin since someone else initiated the case. Note that we lost Chardin - something that our case analysis would have predicted as a serious risk given the nature of the offense and, as such, if it was our call, we would have waited for a more sympathetic plaintiff.

As to felons - it is possible we could encounter a case of a non-violent felon that is worth bringing, however, the comment about felons in Heller could make that difficult. Also, there are felonies that are not felonies for the purposes of 18USC922g. If you know of anyone who was denied a LTC due to a conviction under the Sherman-Clayton anti-trust act, let Comm2A know.

MA has misdafelonies (misdemeanors punishible by 2.5 years which exceeds the 2 year threshold to be a felony according to 18USC922g, including first offense OUI. We definitely do not concur with the conclusion that this should bring a state and federal lifetime prohibition, and it's on our radar screen.

The machine gun prohibition is even more problematic. We don't see any chance a MA court would over-rule the denial of a MG license on the basis of "because they are too dangerous" (the Framingham PD policy), so we probably won't be bringing a licensing appeal. Likewise, the chances of winning a federal case, given the limitations specifically called forth in Heller, as slim to none, so don't expect one of those from us.

So, it is not so much the "position" of Comm2A, but the result of "potential success/failure analysis" that drives the decisions on the cases we bring.

Sorry for not being more clear, Rob. I was referring to the legal position and not the political one. Not trying to be argumentative, just hoping to get a better understanding of the judicial reasoning that prevents issues that seem logically sound from being sidetracked the way they are.

If I understand you correctly, when the Heller decision talks about restrictions that are presumptively lawful; lower courts will treat that like precedent in practice when denying challenges to these restrictions -- while in theory presumptively lawful does carry the caveat of "subject to being proven otherwise"?

 

[Rob Boudrie]

If I understand you correctly, when the Heller decision talks about restrictions that are presumptively lawful; lower courts will treat that like precedent in practice when denying challenges to these restrictions -- while in theory presumptively lawful does carry the caveat of "subject to being proven otherwise"?

The jury is out on lawful carry by "ordinaries" - we've seen decisions go both ways, though the trend is against us. One win for our side (Maryland) was overturned on appeal, and the win in the 9th (CA, HI) was granted an en banc hearing. En banc is latin for "several of the judges on the circuit want to see a different decision".

As to machine guns - clearly not covered by Heller, and not something Comm2a is working on.

Felons in possession - there may be some room for a carefully crafted case.

 

[Knuckle Dragger]

The jury is out on lawful carry by "ordinaries" - we've seen decisions go both ways, though the trend is against us. One win for our side (Maryland) was overturned on appeal, and the win in the 9th (CA, HI) was granted an en banc hearing. En banc is latin for "several of the judges on the circuit want to see a different decision".

As to machine guns - clearly not covered by Heller, and not something Comm2a is working on.

Felons in possession - there may be some room for a carefully crafted case.

I guess I don't entirely agree with the highlighted statement. True, quantitatively, decisions have gone against us, but I think the quality of the decision in our favor has been much, much better. The decisions that have gone against kind of come down to:

• gun are dangerous and the government has an interest in controlling them.
• The right isn't infringed because a few people can carry.
• SCOTUS hasn't gone this far, so we won't either
• Blah, blah, blah.

On the other hand decision that have gone our way from MD, the 7th and 9th circuits contain very detailed reasoning based upon text, tradition, etc. This is a subjective evaluation, I know. But we've seen these decisions from judges that are not big 2A fans, but feel the facts and the Constitution lead them to our side. I am very confident that the current is flowing in our direction.

 

[Rob Boudrie]

This ruling has no immediate affect on any MA practices. This is a district court ruling in the Washington DC district. It is not binding on Massachusetts.

It will be appealed and our side will probably lose.

That's what happened in the Maryland case, and the 9th circuit has granted standing to the state (I think the AG's office) in Peruta, even though doing so is not standard procedure, and also granted en-banc (which as I mentioned earlier is latin for "we don't like the decision and will have a fair hearing before we change it").

judges that are not big 2A fans, but feel the facts and the Constitution lead them to our side.

I think it was Justice Scalia who said that a judge who likes all of is decisions isn't a very good judge.

The facts are on our side. The problem has been finding judges who will look past their ideological biases and rule based on these facts. The initial rulings in Draper v. Coakley and Jarvis vs. VV would likely not have gone the way they did if the underlying issue was something other than guns.

Back to K. Draggger's comment about the current flowing in our direction - The victories that we have had (both Comm2a and others) in the past few years would have been all but unthinkable a decade ago. We're getting to the point where a "gun case" is now taken seriously and not dismissed out of hand as the work of extremist sovereign citizen nut jobs.

 

[jar]

It will be appealed and our side will probably lose.

It'll depend on the panel draw. Heller won in the DC circuit.

 

[matt9112]

if anything i think these cases may force SCOTUS to visit the issue they have avoided it for a very long time but the mud slinging in the lower courts is piling up.

 

[Rob Boudrie]

It'll depend on the panel draw. Heller won in the DC circuit.

I hope I am wrong but fear that I am right in my prediction.

 

[DispositionMatrix]

Allegedly the first "permit" issued without "good reason" requirement under the injunction:
http://i.imgur.com/HFINtGf.jpg

If Whidby is indeed from Leesburg, that is a non-resident issuance as well.

 

[jefftk]

Allegedly the first "permit" issued without "good reason" requirement under the injunction:
http://i.imgur.com/HFINtGf.jpg

If Whidby is indeed from Leesburg, that is a non-resident issuance as well.

If so I'm kind of surprised.

The DC Chief was quoted as saying something like "we have not denied any more licenses". I assumed that meant "but we're not going to approve them either and will just try to sit on them for as long as possible".

 

[cekim]

If so I'm kind of surprised.

The DC Chief was quoted as saying something like "we have not denied any more licenses". I assumed that meant "but we're not going to approve them either and will just try to sit on them for as long as possible".

I think the judge has made it clear they won't be allowed to do that, but we'll see. I hope they try so she can be held (as in incarcerated) in contempt. That would be awesome and should have happened already.

 

[DispositionMatrix]

The case continues. They can revoke any licenses issued as soon as they either get a ruling in their favor or don't and come up with another prohibitive scheme.

 

[Knuckle Dragger]

Full order here:

https://www.firearmspolicy.org/wp-content/uploads/2015/05/Wrenn-v-Lanier-decision-order-MPI.pdf

The DC Circuit Court stayed this ruling on Friday.

D.C. can require gun applicants to provide a ‘good reason’ for now