The Civil Right to Bear Arms

Yes, you have the natural right to bear arms for self-defense and other lawful purposes, and in the United States of America, that right has finally been confirmed as a civil right.

It has taken a long, strange journey to get to this point. Never mind that the first battles of the American Revolutionary War were sparked by an attempt to seize American arms. Never mind that the U.S. Constitution was explicitly amended to protect the right to keep and bear arms. Never mind that the U.S. Supreme Court ruled in Dred Scott v. Sandford that if black slaves were recognized as free citizens, they would have the right “to keep and carry arms wherever they went.” Never mind that the racist, slaving traitors who provoked the worst war in American history didn’t hang—but that’s a battle for another day.

In less ancient history, it’s been 14 years since the U.S. Supreme Court finally, reluctantly confirmed that the Second Amendment really did recognize an individual right to keep and bear arms—to own and carry weapons for self-defense and other lawful purposes in other words. Unfortunately, due to a quirk of American jurisprudential history, that fact still had to be incorporated among the several states. Never mind that the U.S. Constitution is still “the supreme Law of the Land.”

Nordyke v. King, an unlikely case about gun shows out of California, suddenly took center stage. For a moment it looked like the litigation would quickly establish incorporation for the Second Amendment right. Hopeful, naïve civil libertarians predicted that the citizens of California and similarly benighted states would win their rights within 18 months—but instead we got an education in en banc review. Instead we saw the lower courts in prohibitionist jurisdictions—where the unrepentant traitors’ bigoted poison had so long festered among otherwise liberal minds—revolt against the plain language of the Supreme Court.

What was supposed to be a quick victory for individual liberties became a long, exhausting and divisive slog through the courts—and even through the White House. Once we did eventually win incorporation in McDonald v. Chicago, constitutionalists, right-to-arms advocates, and civil libertarians lost again and again when we tried to make something meaningful out of the Second Amendment. Coalitions rose and fell, friendships were made and destroyed, and the Supreme Court seemed content to allow the lower courts to ignore its guidance and continue to treat the right to bear arms as “a second-class right.” That is … until today.

In the majority opinion for New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas wrote, “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.… 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.” Moreover, the ruling insists upon textual and historical analysis alone when determining the constitutionality of any laws regulating the right to arms, negating the “intermediate” approach used by the lower courts so often during the last 14 years.

You have the right to carry firearms for lawful purposes … but under Justice Thomas’s reasoning, licensing regimes and other categorical prohibitions should all fall. Of course, time will tell, and the price to get this far has been steep.

However, for those of you in the six states most affected by today’s ruling, if you worry about “blood in the streets” when law-abiding gun owners are allowed to carry their weapons, you shouldn’t. That fear has always been based on propaganda. After the ruling has been implemented, you won’t notice any difference. In fact, after a few months, you will probably forget all about this … or maybe you will decide to exercise the right yourself.

Terror and Tragedy

I had planned to report on the Ninth Circuit’s en banc decision in Peruta v. San Diego … but then came the horrific events in Orlando. The appellate court denied the right of law-abiding citizens to bear arms in public … while a Muslim terrorist simply ignored such prohibitions in order to murder dozens of people whose homosexuality offended his religion. If you don’t understand why both of these things were constitutionally and morally wrong, then you are a self-deluding fool … or an Islamic terrorist.

Even in shall-issue Florida, the killing still took place in a gun-free zone. Firearms are prohibited in bars and other drinking establishments. Now, given the clientele involved, the victims in this incident were reasonably unlikely to be armed even if weapons weren’t prohibited, but the prohibition certainly did nothing to stop the murderer. Moreover, as he was apparently a licensed security guard, the killer knew full well that his intended victims would be “legally” disarmed.

The outcome might have been different … but probably not.

This isn’t about tactics, political or otherwise. It’s about fundamental principles and natural rights. What we saw both in California and Florida were violations of principles and attempts to suppress rights. Both events should be seen as abhorrent to their own degrees in what was supposed to be an enlightened, egalitarian culture—but I know they won’t.

The American experience came so close to that egalitarian dream, but now that light will fade. Our divisions will widen, our misguided envy and misplaced jealousy will fester, and we will slowly but surely tear ourselves apart. The only real question at this point is the magnitude of our fall.

Rehearing for Peruta and Richards

As suspected from the outset, the U.S. Court of Appeals for the Ninth Circuit has voted to rehear both Peruta v. San Diego and Richards v. Prieto, which had established that California’s handgun-licensing regime was unconstitutional as applied. The earlier victory in these lawsuits came as something of a surprise but was really just the result of a lucky draw for the original three-judge panel. The full court is heavily populated by Democratic appointees, so in all likelihood, the initial ruling will be reversed by this “rare” en banc review.

Civil-rights proponents on the court may have delayed this moment for as long as possible. Many thousands of licenses have been issued for the good cause of self-defense since the original decision, including within the jurisdiction of my former home, Orange County. The jurisprudence from Peruta has also been incorporated into other important right-to-arms cases, most notably Palmer v. D.C., which overturned the capital district’s no-issue law. Nevertheless, the end result was predictable.

When Peruta is reversed and transformed into a copy of the Kachalsky (USCA2), Woollard (USCA4), and Drake (USCA3) rulings, one question will remain. Will the U.S. Supreme Court take up the case and settle the matter constructively? Thus far, the high court has declined to review all of the right-to-carry cases that have come before it, so there is little reason to believe that the same dereliction won’t be visited here.

The boundary of the present inflection point may be growing near, and I can almost see the threads of historical probability coiling just beyond its veil. I’ve said before that we can’t return to that polite middle ground where the disparate factions pretend to ignore each other’s intentions. Outside the inflection point, linear progression becomes hyperbolic change. What that will do to the American nation remains unclear.

A Right-to-Carry Victory in the District of Columbia

Nearly five years ago, the case of Palmer v. D.C. was filed in the U.S. District Court for the District of Columbia. Following the landmark victory in D.C. v. Heller, which overturned D.C.’s ban on handguns in the home, this matter challenged the District’s total prohibition on carrying firearms for self-defense outside the home. Various motions were submitted over the course of the next year, but then the case languished, waiting for a decision on summary judgment. Meanwhile, a variety of other right-to-carry challenges made their way through the courts to their ultimate, conflicting resolutions.

Peruta v. San Diego and its brethren in the Ninth Circuit were the only other major right-to-carry cases that hadn’t been fully resolved, but even they were simply waiting for the final judicial shenanigans to be completed at the appellate level. Palmer was still pending at district court, seemingly consigned to eternal judicial delay. Until today … that is.

Ruling that “the District of Columbia’s complete ban on the carrying of handguns in public is unconstitutional” under any level of judicial scrutiny, the court struck down that ban and enjoined the enforcement of the applicable sections of D.C.’s penal code. The right to bear arms in our nation’s capital has been secured. For today … that is.

Monday may bring appeals and/or new legislation, so the struggle is still far from over.

Decision and Order: Palmer v. D.C.

Drake Declined

The wave has broken far from shore. Today, the U.S. Supreme Court declined to review Drake v. Jerejian, continuing its avoidance of right-to-carry cases. This tacit choice for potential violence is still astonishing even after similar dereliction in the matters of Kachalsky and Woollard, but there is yet hope.

The floodwaters of unrest may inundate the northeast, but if the Peruta decision stands in California, the potential damage may be minimized. The abuses are so longstanding and the geographies so small that the high court’s ersatz federalism might suffice to release enough pressure in the region. Once the people of the West are freed, only somewhat less than 20 percent of Americans will remain under fully prohibitionist regimes.

Right-to-Carry Litigation Update

While I was in the process of extracting myself from California, important progress was made on the litigation front for the the right to bear arms outside the home. After more than a year of waiting, three decision were rendered out of the U.S. Court of Appeals for the Ninth Circuit, affirming that governments in this circuit must recognize a right to carry functional handguns for self-defense under the Second Amendment to the U.S. Constitution. Specifically, the court ordered that self-defense must be accepted as meeting the various “good cause” requirements for the issuance of concealed-carry licenses in California and Hawaii.

Drake v. Jerejian	New Jersey	Lost on appeal at USCA3.
Kachalsky v. Cacace	New York	Lost on appeal at USCA2.
Moore v. Madigan	Illinois	Won on appeal at USCA7.
Palmer v. D.C.	D.C.	Won at U.S. District Court.
Peruta v. San Diego	California	Petitioned to U.S. Supreme Court.
Richards v. Prieto	California	Lost on rehearing at USCA9.
Woollard v. Gallagher	Maryland	Lost on appeal at USCA4.

Naturally, the legal battles aren’t over yet. The controlling decision in Peruta v. San Diego has been challenged by a number of actors (including the attorney general of California) and may yet face a rehearing by a larger panel on the overwhelmingly “liberal” circuit. Petitions to the U.S. Supreme Court are the next option for whichever side ultimately loses at the Ninth Circuit. Meanwhile, Drake v. Jerejian, out of the Third Circuit, is already at that step.

The question remains whether the Supreme Court will actually step in to settle the matter.

Peruta v. San Diego

Though it was eventually adopted by the National Rifle Association’s litigation team, the case of Peruta v. San Diego was widely seen as something of a dark horse compared to other right-to-carry challenges, such as the matter of Richards v. Prieto. In fact, both cases were argued before the U.S. Court of Appeals for the Ninth Circuit back in Dec. 2012. Today, the appeals court finally issued its decision, concluding that “the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense” and held that requiring “good cause” for the issuance of a license to carry a handgun “impermissibly infringes on the Second Amendment right to bear arms.…”

This decision represents a pleasing and unexpected victory—if a late one—for the right-to-carry movement in California. However, as history has shown, the fight may be far from over. Various judicial maneuvers may still be used to delay or reverse the order. Therefore and perhaps probably, Peruta may yet find itself petitioned for review to the U.S. Supreme Court, which has repeatedly demonstrated its reluctance to hear a right-to-carry challenge.

Avoiding the Question

The U.S. Supreme Court made an unconscionable mistake today. In declining to review the matter of Woollard v. Gallagher, which questioned the constitutionality of requiring “good and substantial” cause for the issuance of a permit to carry a handgun, the high court has signaled with dread certainty that it will do nothing to protect the civil right to bear arms for the nearly 100 million Americans who reside in prohibitionist states. Moreover, this shirking of responsibility will doom the nation at large to suffer the consequences of decades of frustration that must soon be released.

Though several right-to-carry challenges still remain active in the federal courts, we have no reason to expect different outcomes for these cases. Those subjects of California, New York, New Jersey, Massachusetts, Maryland, and the other gun-control bastions are now left with only two choices: flight or defiance.

A Friend for Woollard

I’m no lawyer, but I doubt that I could construct a stronger legalistic argument in support of the right to carry a handgun under the Second Amendment than that presented in the Cato Institute’s amicus brief to the U.S. Supreme Court advocating its review in the matter of Woollard v. Gallagher. The high court must take up this case and settle the underlying constitutional question. To do otherwise would be to shirk its duty and expose the entire body of our civil rights to potential abuse under the same methods used to deny the right to bear arms.

A Right to Carry for Illinois

In Illinois, the legislature has enacted a shall-issue concealed-carry licensing bill over Gov. Pat Quinn’s veto. This brings the state into compliance with the orders from U.S. Court of Appeals for the Seventh Circuit in the Moore and Shepard cases. Illinois thus becomes the final state to provide some legal means for the people to exercise their right to bear arms under the Second Amendment.

Accordingly, Attorney General Lisa Madigan has moved to dismiss Moore and Shepard as moot under the new law and will not petition the U.S. Supreme Court to review these cases. That will leave one right-to-carry case, the matter of Woollard v. Gallagher from Maryland, presently ready for the high court’s attention. Cases out of California, New Jersey, and Hawaii are still waiting for decisions from their respective appeals courts.

With Illinois’ narrow no-issue example mooted, the Supreme Court will have to accept one of these challenges to may-issue licensing schemes … if it intends to rule on the right to carry at all.

Mr. Kashalsky Doesn’t Go to Washington

The U.S. Supreme Court has declined to review the matter of Kashalsky v. Cacace, which unsuccessfully challenged the constitutionality of New York’s discretionary handgun-licensing regime. There are several more right-to-carry cases in the queue, so the rank speculation is that the high court would prefer to hear one of those examples instead, since the justices have already telegraphed their intent to review further Second Amendment litigation in the near future. However, the danger inherent to avoiding Kachalsky lies in the timing. The longer these important issues go undecided, the more likely that longstanding frustration will turn into anger … and anger into defiance or even violence.

In other words, we’ve moved frighteningly closer to constitutional crisis.

A Loss for Woollard

Regressing to the mean, the U.S. Court of Appeals for the Fourth Circuit has reversed the district-court decision in what is now Woollard v. Gallagher. Ruling for the state, the court held that while Maryland’s requirement of “good and substantial reason” for a permit to carry a handgun in public does burden the right to bear arms under the Second Amendment, it is still “constitutionally permissible.” However, as Eugene Volokh notes, “a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.”

Meanwhile, we wait to see whether the U.S. Supreme Court will take up Kachalsky v. Cacace and if Illinois will petition the same for review of its loss in Moore v. Madigan.

Right-to-Carry Litigation in Summary

While the police finished murdering each other in southern California, and the President prepared “massive” proposals for the Congress, the case of Piszczatoski v. Maenza [now Drake v. Jerejian, 1/09/14] was argued before the U.S. Court of Appeals for the Third Circuit. With an en banc review of the decision in Moore v. Madigan looking unlikely, a victory in Piszczatoski would deepen the circuit split created by the loss in Kachalsky v. Cacace and thus make the conflicting jurisprudence even more difficult for the U.S. Supreme Court to avoid reviewing. Here is a summary of the major right-to-carry cases for those keeping score.

Kachalsky v. Cacace	New York	Lost on appeal at USCA2.
Moore v. Madigan	Illinois	Won on appeal at USCA7.
Palmer v. D.C.	D.C.	Won at U.S. District Court.
Drake v. Jerejian	New Jersey	Lost on appeal at USCA3.
Peruta v. San Diego	California	Petitioned to U.S. Supreme Court.
Richards v. Prieto	California	Lost on rehearing at USCA9.
Woollard v. Gallagher	Maryland	Lost on appeal at USCA4.

There is a host of other right-to-arms cases that are working their way through the federal court system, but this is the vanguard litigation. A historical turning point is at hand, though some people can’t or won’t see the important civil-rights implications at work here. Few people need to carry guns, they argue, but then very few people needed to abort pregnancies … or to marry the spouses of their choice … or to ride at the front of the bus.

Propaganda in Review: VPC’s “Concealed Carry Killers”

The Violence Policy Center recently pushed out its latest version of “Concealed Carry Killers,” a review of all presumably unlawful homicides between 2007 and 2012 that were allegedly perpetrated by individuals licensed to carry concealed firearms.¹ I needed something to cheer me up, so I decided to evaluate this study in detail here. Fortunately, doing so didn’t take very long, since the total number of incidents was very small—which tells us something already. Following along as I deconstruct the propaganda may take a few minutes, though, so pour yourself a drink, get comfortable, and enjoy the show.

Before I parse the numbers and draw comparisons and conclusions, I should comment on the relative validity of the VPC data. With three exceptions,² it is drawn entirely from news reports, so certain details are probably incorrect, though I have assumed their validity for this analysis. (For example, I could argue that the licensing status presented in many of the cases amounts to hearsay evidence, but I won’t.) As usual, suicides and unintentional killings are conflated with intentional homicides to produce a higher number of fatalities. I will redact the suicides in my analysis below but not the unintentional fatalities.³ Finally, that the perpetrators were licensed was germane to relatively few of the cases. Many if not most of the incidents occurred at private residences or businesses, where non-licensees could have been legally armed, while others involved obvious premeditation and were clearly not the result of the perpetrators spontaneously killing someone just because they had legally carried weapons at hand. However, this study is about the propensity of licensees to commit murder, so the fact they were licensed cannot be dismissed even on its irrelevancy to their crimes. What I will redact are the included homicides that were actually committed by non-licensees, police officers, and security professionals.

The VPC study details approximately 370 incidents that occurred between May 2007 and November 2012. These resulted in a total of 500 fatalities and led to 168 individuals being convicted on homicide charges.⁴ These figures suggest that licensees kill about 89 people per year unlawfully. With an estimated eight million licensees in the United States,⁵ that works out to an annual homicide rate of 1.11 per 100,000 licensees. I will put that rate in context a bit later, but let’s parse the numbers a little more accurately first.

To begin, we shouldn’t count the killings that were actually committed by non-licensees or by those who were licensed only pursuant to their employment (such as cops and security guards). Redacting these reduces our total number of fatalities to 453. That leaves us with 81 presumed homicides per year or an annual rate of 1.01 per 100,000 licensees.

Next, many of the cases were unresolved. While some of these may eventually result in convictions, the accused are presumed innocent until proven guilty—despite the blood lust of the lynch mobs. Redacting these alone reduces the total to 427 fatalities. The annual rate then becomes 76 unlawful homicides or 0.96 per 100,000 licensees.

Lastly, a full third of the 500 fatalities were actually suicides, which have nothing to do with concealed-carry licensing. Redacting just the suicides, gives us 332 bona fide homicides. Including negligent shootings, that is 59 murders per year or 0.74 per 100,000 licensees.

Of course, if we were to remove all the suicides, the presumptively lawful killings, and the homicides committed by non-licensees, the rates would become lower still. I won’t split these hairs, because none of the numbers mean much in isolation. We need to compare them to other homicide rates to see if licensees present some unusual threat to public safety, which is what the VPC report implies that we should believe.

First, let’s establish the overall homicide rate. From 2006 to 2010, there were nearly 71,000 murders committed in the United States.⁶ That’s about 14,200 per year or an annual homicide rate of 4.5 per 100,000 residents. In other words, all other things being equal, you are over six times more likely to be murdered by a non-licensee than by someone licensed to carry a concealed weapon.

Now, I’m going to frighten, anger, and possibly sadden you.

According to the U.S. Bureau of Labor Statistics, there were 794,300 police officers employed in 2010.⁷ In the same year, the Cato Institute reports, police officers caused 127 fatalities in association with credible excessive-force allegations.⁸ Ladies and gentlemen, that is a homicide rate of 15.99 per 100,000 cops. You are over 21 times more likely to be murdered by a police officer than by someone licensed to carry a concealed weapon … all other things being equal.

But all other things are not equal. In 2010, approximately 3,800 black men were arrested on murder or manslaughter charges, representing about 45 percent of the total for such arrests that year, though black men comprise only about six percent of the general population. Black men were also killed with disproportionate frequency, making up over 42 percent of murder victims that year.⁹ In other words, black men are killing each other at an appalling rate—well over 20 homicides per 100,000 men.¹⁰ A black man is over 35 times more likely to be murdered by another black man than anyone is to be killed by a concealed-carry licensee.

As the above examples have shown, even the VPC’s most inflammatory numbers indicate that individuals licensed to carry concealed firearms are less dangerous than the average citizen and considerably less dangerous than certain other sub-populations. Nevertheless, the report should serve as a reminder that every population has its bad actors. The concealed-carry community may be more scrupulously law-abiding than most, but it is still not immune to evil or insanity.

I want to conclude with a thought experiment that explores how licensed concealed carry might intersect with a mass-shooting incident and VPC-style propaganda. Below, I will present two scenarios, one essentially fantastical and one frighteningly plausible. First, the fantasy …

A man wearing a long coat and a backpack walks into a crowded shopping mall. He approaches the balcony overlooking the food court on the floor below and produces an AR-15 rifle from under his coat. Leaning over the railing, he begins to fire indiscriminately into the lunchtime crowd.

A few yards away, a concealed-carry licensee is sitting on a bench waiting for his wife and daughter to finish shopping. His first impulse is to run toward the nearby emergency exit. He was trained to avoid confrontation when he applied for his license, but he isn’t sure if his family is safe … and he immediately recognizes that a mass shooting is in progress. After scant seconds of indecision, he acts, drawing his semi-automatic pistol and firing two shots at the deranged gunman.

The shots connect, but the murderer is wearing ballistic armor under his coat. He flinches and turns his rifle toward the licensee, firing wildly. The licensee adjusts his aim. He manages to get off a third shot, striking the gunman in the head, before he himself is hit in the thigh.

The shooter collapses, unconscious. The licensee calls for help, but he is already bleeding badly. In the chaos and confusion that follows, medical and law-enforcement personnel take several minutes to arrive on scene. The licensee bleeds to death.

The would-be mass killer succumbs to his wounds several days later. Two more of his victims also die, but dozens recover from the injuries left by his small, high-velocity bullets. No one has a clear idea of what happened.

The news stories report that two shooters were killed in a gun battle at the mall, along with two innocent bystanders. One of the gunmen, the reporters note, was licensed to carry a concealed handgun. The Violence Policy Center records the incident as four homicides attributed to a licensee.

Now for the reality …

A man wearing a long coat and a backpack walks into a crowded shopping mall. He approaches the balcony overlooking the food court on the floor below and produces an AR-15 rifle from under his coat. Leaning over the railing, he begins to fire indiscriminately into the lunchtime crowd.

In a nearby store, a concealed-carry licensee is buying a pair of shoes. She hears the sudden burst of shots and thinks about the compact revolver holstered in her purse. Unsure of the situation or the gunfire’s origin, she decides to wait and avoid conflict if possible, as she was trained to do when she received her license. The manager quickly locks down the store and ushers the shoppers into the relative safety of a back office.

Outside, the deranged gunman continues shooting. His rifle malfunctions multiple times due to the cheap high-capacity magazines that he chose mainly for their wicked appearance, but he manages to reload again and again, pulling magazine after magazine from his full backpack. He hits scores of people as they attempt to hide or flee.

In the chaos and confusion that follows, medical and law-enforcement personnel take several minutes to arrive on scene. The police order the shooter to drop his rifle, but he turns it on them, firing wildly. One officer is struck in the head, dying almost instantly.

The other officers return fire, hitting the suspect multiple times. He drops his rifle and collapses. He is arrested and taken to the hospital for treatment.

The police secure the area, while paramedics attempt to evacuate the wounded. The mall is locked down for several more hours as the police interview witnesses and search for other possible suspects. They eventually make their way to the shoe store.

When contacted by the officers, the licensee informs them that she is licensed to carry concealed, as she is required to do under her state’s law. The officers ask if she is armed, and she replies affirmatively. Exercising caution, the police take the licensee into custody on suspicion that she may be an accomplice.

The licensee is later released without charges. Almost two dozen victims die that day, and dozens more eventually recover from their injuries. The shooter himself survives his wounds but is ruled incompetent to stand trial.

The news stories report that 22 shoppers and one police officer were killed when a gunman opened fire with an “assault weapon.” The reporters note that a woman licensed to carry a concealed handgun was also arrested at the scene but has yet to be charged. The Violence Policy Center records the incident as a mass shooting associated with a licensee but pending resolution.

A concealed-carry licensee may [rarely] stop a mass murder in progress, but licensees do appear to provide some deterrence. The pattern is already clearly visible. Would-be mass killers preferentially target unsecured locations where firearms are prohibited by law or policy, ensuring that they will face the least possible resistance. Of course, eliminating gun-free zones and embracing the deterrent effect of lawfully armed citizens may simply compel future murderers to modify their tactics … but that’s a discussion for another time.

1. Violence Policy Center, “Total People Killed by Concealed Carry Killers” (2012).


2. The VPC also includes data from various reports published by the Michigan State Police and the Minnesota and Texas departments of public safety, which are no doubt inclusive of the news data. In other words, some of the results for these three states have probably been counted more than once.


3. Modern firearms don’t “go off” accidentally, so an unintentional shooting is almost always the result of negligence.


4. I have extrapolated the number of convictions to include perpetrators who likely would have been convicted if they hadn’t been killed during the commission of their crimes, committed suicide, or been ruled incompetent to stand trial. However, more than one of the actual convictions appear unjust to my eyes.


5. U.S. Government Accountability Office, Gun Control: States’ Laws and Requirements for Concealed Carry Permits Vary across the Nation (2012). Looking at the statistics another way, concealed-carry licensees comprise about 2.5 percent of the population but are allegedly responsible for only 0.4 percent of all homicides.


6. As usual, I take most of my crime statistics from the FBI’s Uniform Crime Reports.


7. U.S. Bureau of Labor Statistics, Occupational Outlook Handbook (2012).


8. National Police Misconduct Reporting Project, 2010 Annual Report.


9. Uniform Crime Reports.


10. The only “epidemic of violence” in the United States is largely confined to certain minority communities. It has nothing to do with guns and everything to do with institutionalized poverty and the war on drugs.

Victory at the Seventh Circuit

Today brought a somewhat unexpected victory on appeal for two right-to-carry cases out of Illinois. The panel at the U.S. Court of Appeals for the Seventh Circuit has ruled that the state’s sweeping prohibition is unconstitutional and has remanded the cases with orders for corrective legislation.

The theoretical and empirical evidence … is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified.… It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand … them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment.…

If nothing else, this decision will likely be seen as creating a so-called circuit split, which would generally compel the U.S. Supreme Court to take up a case in order to resolve the inconsistency … while possibly also foreclosing the only-in-the-home defenses used thus far.

Richards v. Prieto at the Ninth Circuit

On Thursday, Alan Gura argued the case of Richards v. Prieto before the U.S. Court of Appeals for the Ninth Circuit. As I have reported previously, this case challenges the constitutionality of discretionary licensing policies in California, specifically the requirement for an applicant to meet subjective standards of “good moral character” and “good cause” in order to be eligible for a license to carry a firearm on his or her person.

Oral Arguments

Kachalsky Loses at the Second Circuit

Predictably, the U.S. Court of Appeals for the Second Circuit has upheld the ruling of the lower court in the matter of Kachalsky v. Cacace. As usual, the court misapplied the McDonald decision, interpreting the Supreme Court’s ruling that the right to bear arms described by the Second Amendment is “most notably for self-defense within the home” to mean that the right exists only within the home. A certiorari petition is expected.

Meanwhile, appeals continue to move forward in other circuits. Oral arguments are scheduled on Dec. 6th for several other right-to-carry cases, including California’s Richards v. Prieto.

Self-Defense, the Right to Arms, and the Concealed-Carry Revolution

The video I’ve shared is from a recent Cato Institute policy forum on self-defense and “stand your ground” laws. Though fairly long, it provides solid historical, political, and legal analysis, so I encourage everyone to watch. As you might suspect, I disagree in part with the last commentator,¹ but I still think he made valid points about the application of the law and the possible need for further guidance. After all, if “stand your ground” laws were a reaction to the misapplication of other statutes by prosecutors, are they not at risk for misapplication themselves? Absent political motives, the mere fact that relative experts disagree on the meaning of these laws suggests there is yet a degree of ambiguity, but that is a matter for legislators and judges to resolve.

As noted in the video, the adoption of such affirmative self-defense statutes has followed the proliferation of right-to-carry laws throughout the country. However, many if not most people are still largely unaware of this quiet revolution, both because the laws encourage or even require the concealed carry of firearms and because the mainstream media usually does their best to ignore the laws once they’ve been passed.² Naturally, there is a long and troubling history behind the right-to-carry movement, and I can touch on that only briefly here.

In A.D. 1986, only a handful of states would readily issue licenses to common citizens. In the rest of the country, the carrying of firearms was either broadly prohibited or the licensing authorities had almost unlimited discretion in issuance. This was the legacy of the two-pronged gun-control efforts³ of the 1920s and ’30s, which were ostensibly intended to combat the dramatic increase in violent crime that accompanied alcohol prohibition.

That began to change when Florida became the first state in recent decades to adopt a shall-issue statute, which required the licensing authority to issue licenses to all applicants who were not legally disqualified. Florida’s concealed-carry law became a model for reform, and by the mid-1990s, over half of the United States had enacted similar shall-issue statutes. The causes have not been widely explored, but I think that they will prove clear enough once this chapter of history is written.⁴

Opposition to the shall-issue movement has been and continues to be fierce, and in each case it has usually taken several years for liberalized concealed-carry legislation to make it through state legislatures and past gubernatorial vetoes. Without fail, opponents have warned of dire consequences should the reforms pass into law. Blood would run in the streets, they assured, as minor disputes and disagreements escalated into shootouts. Invariably, though, such grim outcomes have failed to materialize, and violent crime has continued to decline⁵ as right-to-carry laws have continued to expand.

Today, all but a handful of states enjoy shall-issue licensing or better. California, New York, and several other “liberal” states still maintain discretionary, may-issue regimes, while Illinois is the only state with no licensing system. Legislative reform is unlikely in these gun-control strongholds, so multiple constitutional challenges are now making their way through the federal courts.

The U.S. Supreme Court is widely expected to hear one or more of these cases within the next two years.

1. I am far, far more worried about misconduct by the police and prosecutors than I am about the potential that a criminal might “get away with it” here or there.


2. After vigorously campaigning against a right-to-carry reform, the news media seem to conveniently forget about the topic, except for occasional “investigative” pieces designed to expose or embarrass licensees. Here is a recent exception to that rule. “New Fashion Wrinkle: Stylishly Hiding the Gun.” The New York Times (2012).


3. These efforts resulted in the National Firearms Act of 1934, which sought to regulate firearms at the federal level via taxation (since the federal government was presumably bound from direct infringement on the right to keep and bear arms by the Second Amendment), and the “uniform acts,” which sought to control guns at the state level (since state governments were presumably not bound by the Second Amendment). In practice, though, the various prohibitions on concealed firearms found within the uniform acts were mostly used to disarm “undesirable” people (i.e., minorities and immigrants), and that was probably a large part of the true intent behind them. Otherwise law-abiding white citizens were generally unaffected for several decades, and the wealthy and influential could always count on getting licenses or at least special consideration in the event of any embarrassing incidents.


4. I contend that the right-to-carry revolution developed as a response both to the equalized enforcement practices reached in the 1970s and ’80s and to the political successes of the national gun-control movement from 1968 to 1994. Note that the number of shall-issue states had almost doubled within two years of the enactment of the federal ban on “assault weapons.”


5. The FBI’s Uniform Crime Reports show that homicides (gun related and otherwise) have continued to decline from 2006 to 2010. Firearms-related homicides specifically dropped from 10,225 to 8,775. More guns on the street simply do not correlate to—let alone cause—more violence.

An Early Victory in Maryland

While judicial shenanigans continue to delay California’s early right-to-arms challenges and defeats in other cases are being appealed in New York, Colorado, New Jersey, Massachusetts, and Illinois, an early and unexpected victory was announced today for the case of Woollard v. Sheridan at the U.S. District Court for Maryland. Like many of the other cases, Woollard challenged the constitutionality of discretionary permitting schemes. In this instance, however, the court ruled that Maryland’s law “impermissibly infringes the right to keep and bear arms.…”

Maryland’s attorney general has announced his intention to appeal.

Kachalsky Advances to the Second Circuit

The opening brief has been filed at the U.S. Court of Appeals in the case of Kachalsky v. Cacace. The appeal challenges the constitutionality of New York’s discretionary handgun-licensing scheme. Currently, the state requires “proper cause” for the issuance of a license to carry a handgun, creating a prior restraint on the fundamental right to bear arms under the Second Amendment and violating equal protection under the 14th Amendment.