Colt Bankruptcy

I am aware that some purchasers of Colt firearms are concerned with the announcement earlier this month that the company has filed for bankruptcy.  Please note that Colt’s press release on the subject found here explains that Colt requested that the Bankruptcy Court approve its “requests to protect trade creditors, vendors, and suppliers thereby allowing for its operations to continue uninterrupted during the Bankruptcy Court supervised sales process.”  In short, if you have paid for a purchase and are awaiting delivery of a firearm or if you returned a firearm for repair, Colt has said that the corporate restructuring will not interfere with “normal business operations”.

If you have a more substantial financial interest in Colt — as a shareholder or bondholder or lender — you may want to consult with an attorney who handles bankruptcy matters for further explanation of the potential impact upon your interests.

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Pennsylvania Firearms Law Seminar – July 25, 2015!

On July 25, 2015, Chief Counsel Joshua Prince and Attorney Eric Winter of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with King Shooters Supply, will offer a four (4) hour seminar on state and federal firearms law at their store located at  346 E Church Rd, King of Prussia, Pennsylvania 19406.

The cost is $10 and you must register early, as last time it sold out fast. You can find out further information on King Shooters Supply’s website or on King Shooters Supply’s FB page.  All registrations are to be mailed or dropped off at King Shooters Supply, 346 E Church Rd, King of Prussia PA 19406. If you have questions, please feel free to contact King Shooters Supply at 610-491-9901 .


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Immigration Limbo – Some Problems with Immigration Courts and Immigration Policy defines the word “limbo” as – a place or state of oblivion to which persons or things are regarded as being relegated when cast aside, forgotten, past, or out of date. I move to have l-i-m-b-o stricken from the English language and replaced by i-m-m-i-g-r-a-t-i-o-n c-o-u-r-t.

Notwithstanding personal, politicized opinions about Immigration in the United States today, I think we can all pretty much agree that our advanced legal system is premised on operating, at all times, and with respect to all persons, in a certain Constitutional manner. One very central premise is the right to a “speedy trial”, enshrined by the Sixth Amendment or (alternatively) the right to prompt and fair trial guaranteed by the Due Process clauses of the Fifth and Fourteenth Amendments. Besides, the U.S. Constitution, the Magna Carta is largely believed to have voiced this right, so to did the Virginia Declaration of Rights of 1776.

If the foregoing is true, and we all profess to take the Sixth and or Fifth Amendments seriously, then the question begs, what is going on in our Immigration Courts?!

Reports, on good authority, indicate an absurd degree of backlog where persons subject to removal/deportation wait, on average, some 612 days before a dispositive hearing on their respective cases! There are, at present, some 449,000 total pending cases! Now, if those numbers on their own don’t shock the conscience, it aught to also be considered that immigration detainees too have families, obligations, and (generally) lives but almost 32,000 of those 449,000 cases represent persons languishing in detention, held by Immigration Customs Enforcement (ICE). Yes, your math is correct – that means that the average immigration detainee spends almost 2 years in immigration detention awaiting hearing! The total number of pending and interminably back-logged immigration cases has gone up by about 50,000 each year since 2013. Granted, the time between “commencement” of a case and a final Immigration Court decision varies by state facility. Colorado appears to be the worse state for one to be subject to immigration proceedings in, with an average waiting period of 837 days (more than 2 years). Hawaii, by contrast, “boasts” an average waiting period of about 4 months. Pennsylvania is about half-way down the list, with an average wait time for hearing being slightly more than 1.5 years.

Now, to be fair, application of the Sixth Amendment to an Immigration Court context may be problematic. To my knowledge, there has been no case law suggesting that hearing on one’s immigration status (even deportation proceedings) can be, procedurally, classified as a criminal prosecution. Nevertheless, analogizing between the two in this regard (criminal law and immigration law) makes common sense. Subjection to either process involves the potential for one’s substantial deprivation of physical liberty, developing a “record”, etc. Thus, the underlying rationale for the Sixth Amendment “speedy trial” requirement appears to have same resonance in an immigration court context. Furthermore, subjection to the immigration removal process is quite often the result of earlier criminal processing.

What’s worse, is that there are a multitude of individual cases that blow that 2 year period, out of the water. See the case of one Michael Owino who was held in immigration detention for over 9 years awaiting disposition of his case:

The root causes for this glaring suspension of the Constitution are several: a perennial lack of funding, a severe shortage of judges, apathy, and lack of public awareness of this issue, to name a few. As of May this year, there were only 233 judges and only 58 Immigration Courts in the nation. Despite the Department of Homeland Security’s commitment to hire some 85 more judges by the end of this June, it is questionable whether those additions will make an immediate significant difference. Doubt is underlined by the fact that more than 100 immigration judges are slated for retirement throughout 2015. As a “national issue”, Immigration Law and the problems that plague its system of enforcement (especially detention), is often ignored or not understood by the media and/or general public. On this last point, the public can probably be forgiven, as immigration policy and law continues to be among the least transparent and most obscure areas out there. Additionally, in a post 9/11 world, immigration policy (for better or worse) and public willingness to tackle injustices therein, has generally become anathema. Unofficially, We the People have grown to have little problem assuming that immigration and terrorism are somehow inextricably linked and that, therefore, we should defer to whatever heavy-handed policy the federal government prescribes. The real statistics concerning immigration as a national security issue do not support this assumption. In 2009, an ICE report found that only 11% of detainees had committed any violent crime offense. The TRAC Immigration tool prepared by Syracuse University indicates that, at present, violent criminal offenders and national security threats comprise only slightly more than 5% of the total number of pending Immigration Court cases.

Before we delude ourselves into believing that this problem has no far reaching impact, beyond the lives of immigrant communities, let’s take a look at the expanding bill for the industrial-complex that has arisen to support the ever growing number of detainees. For fiscal year 2014, the White House requested $1.84 billion dollars to operate DHS custody of immigrants – A funding level that amounts to $159.00 spent each day last year, per detainee and well over $5 million dollars a day considering the total number of detainees nationwide. At present, DHS has budgeted for a daily detainee-bed capacity of 34,000 compared to a budgeted capacity of 18,000 back in 2004. What’s worse, private corporations have coopted much of the business of immigration detention, reaping huge benefits in the process. In fiscal year 2013, 244 state and county jails were contracted by the federal government to hold immigration detainees on behalf of ICE. In 2011, nearly half of all immigration detainees were held in privately owned facilities. The private corporations have also aggressively lobbied Congress to enact laws that a) make it easier for ICE to detain immigrants and b) extend the length of detention. The Associated Press has reported that, over the last decade, the three companies having the largest percentage of immigration detention contracts with the federal government, have spent more than $45 million in lobbying for such laws.

Although DHS/ICE have shown some commitment in recent times to re-calibrating their enforcement policies, to “go after” primarily those persons who present risks to national security or are violent felons (a shift emblemized by ICE’s Alternative to Detention Program), the chronic bloat to Immigration Courts has not been alleviated. And as has been discussed, administrative efficiency and cost aside, an appeal to Constitutionalism tends to prove that Immigration in the United States is a fundamentally broken system.

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A Government of Laws? Only If You Can Guess What They Mean.

John Adams once stated that the U.S. was to be a government of law, and not of men.  This meant that the word of law – the text, not the intent – was to govern.  If the law was inartfully drafted, or had negative and unintended consequences, a democratically-elected Congress could change the law.  If the law was unconstitutional as drafted, then it was void until corrected.  While never perfectly practiced, this ideal has at least been nominally present throughout most of the nation’s federal jurisprudence.  That, I fear, is no more.

In the King v. Burwell decision, No. 14-114, the Supreme Court tossed aside its judicial objectivity in the face of a highly contentious, but important, public debate over the constitutionality of the “Obamacare” statutory scheme.  The Court in King essentially decided that the survival of the statute’s perceived goals was more important than what the statute actually said.  Put another way, the means were less important than the ends.  In a “government of laws,” this is precisely the wrong conclusion.  With History’s ironic sense of humor, King was decided during the 10 year anniversary of another egregious judicial rewriting: Kelo v. New London.

The ACA provides for two types of insurance exchanges: those created by the state, and those created by HHS in those states that have not set up a state exchange.  The statutory regime also exempts individuals from the purchase of health care requirement – the Individual Mandate – if the cost exceeds 8% of their income.  To alleviate this, the ACA provides tax credits to those individuals.  However, the statute creates the tax credit for “Exchange[s] established by the State.”  In creating the administrative rule to execute this, the IRS granted the tax credit to those covered by state exchanges and federal exchanges.  The King Petitioners were Virginia residents (a state without a state exchange) who argued that they were ineligible for the tax credit and thus were exempt from the Individual Mandate, as the cost exceeded 8% of their income.

The language is important here: the section of the law that allows the tax credit refers to “applicable taxpayers,” and provides a credit “equal to the premium assistance credit amount.”  That term is then defined as “the sum of the premium assistance amounts . . . with respect to all coverage months of the taxpayer . . .”  One more round of definitions defines “premium assistance amounts” and “coverage months” in reference to health insurance plans that have been purchased through “an Exchange established by the State.”  Even the term “State” is defined as “each of the 50 States and the District of Columbia,” which Roberts correctly notes “does not include the Federal Government.”

The Government argued (and the federal  courts have now accepted) that the term “established by the State” actually means “established by the State or the Federal Government.”  Justice Roberts, once again writing for a fractured Court on the health care issue, starts off with the statutory interpretation framework he then goes on to ignore: “If the statutory language is plain, we must enforce it according to its terms.” Roberts then explains that, perhaps counter-intuitively, the plain meaning of the words must sometimes be found by their intent and context.

While context is always important in understanding what a word means, context was not the problem here.  If I say “Bob and Fred are builders in our town and Bob built my house,” I cannot legitimately argue that I really meant that Fred built it, even though I previously stated that both are builders.  And, if Fred actually built my house, I would have made a wrong statement, not a true statement taken out of context.  The plain meaning of my original statement certainly cannot be interpreted to mean “Fred built my house,” simply because I could not have meant to say something untrue.  Rather, the plain meaning would have been what I said, and it would have been wrong.  The only way to remedy that incorrect statement is to change it.

However, Roberts tries to argue that the wrong statement was, in reality, the plain meaning (if only you were to discard the “natural meaning”).  The statute says “Exchanges established by the State.”  The statute refers to both State and Federal Exchanges, both of which behave similarly, but are established and administered by two different entities.  However, Roberts concludes that because Congress probably said the wrong thing, that “plain meaning” should be construed to mean “correct meaning.”  Thus, the intent of the statute, not the language that was written down, is the law.  A government of men . . .

After nominally eschewing judicial redrafting of statutes, Roberts begins redrafting the statute.  Despite finding that the “plain meaning” of the statute controls, he acknowledges that “[i]f we give the phrase ‘the State that established the Exchange’ its most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges.” (Emphasis in original).  But because the Act “clearly contemplates” individuals on the Federal Exchange, the law must be reinterpreted.  It is a problem that “arises repeatedly throughout the Act.”  Thus, “Bob built my house,” really means, “Fred built my house,” because Fred really did build my house.

The other bit of statutory reconstruction occurs under the third element of the statute.  A tax credit is available to “State Exchanges” “under 42 U.S.C. § 18031.  The Federal Exchange, however, is established pursuant to 42 U.S.C. § 18041.  Roberts gets around this drafting error by pointing out the 18041 actually tells the HHS Secretary to establish the same type of Exchange as outlined in 18031.  Of course, this does not solve the problem.  If Fred built my house, I cannot say that Fred and Bob built it, merely because it looks like a house Bob built.  Likewise, an Exchange operated by the Federal Government is not a State Exchange, regardless whether it is built on the same model and follows the same rules.

Roberts, however, would view my statements concerning Fred and Bob as ambiguous, just as he views “established by the State” as ambigiuous.  This is because the Exchange authorization statute instructs the HHS Secretary to establish “such Exchange” (referring to State Exchanges) in the absence of a state-established Exchange.  Thus, Roberts sees no difference between the one who builds and the one who designs the model, or at least is substantially confused by who is the actual builder to allow others to make the determination.

Despite the Courts’ linguistic exploration, what appears to have actually occurred is a strong dose of judicial Baywatch.  Seeing a statute caught in the undertow of the Constitution and its own incompetence, floundering and splashing about, Roberts and the rest of the legal lifeguards rushed in to save it, ignoring all of the legal and Constitutional hazards in doing so.  Roberts acknowledges that the “arguments about the plain meaning . . . are strong,” but argues that the law would be “untenable” if read according to any normal view of grammar or language.  Thus, in order to save this particular law, the Court has tossed aside its analytical approach reserved for other laws, which effectively means that “Too Big to Fail” has entered the world of constitutional jurisdprudence.

As much as the tendency exists to make this something new, let us be reminded that this week marks the 10th anniversary of another egregious example of redrafting, one which may in fact be considered more detrimental to the law, as it rewrote the text of the Constitution, rather than a particular statute.

The Supreme Court decided Kelo v. New London in 2005, which held that the term “public use” does not, in fact, mean “public use.”  In his decision, Justice Stevens (now retired) chastised those who might be so inclined to interpret words by their plain meaning as holding a “narrow view” which has “steadily eroded over time.”  After all, he wrote that that “narrow view . . . proved to be impractical given the diverse and always evolving needs of society.”

It is no surprise, then, that since the infancy of Progressivism in the very late 1800’s, the Court has utilized the “public purpose” test, rather than the Constitutional text.   Of course, the Court “define[s] that concept [public purpose] broadly,” effectively flipping the protections of the Constitution from the protection of individual rights to the protection of an active Government.  Thus, the Court upheld the taking of property for a supposed “public purpose” in 1954, when Washington, D.C. condemned a non-blighted department store in the middle of a blighted area, for purposes of redevelopment.  It upheld another taking of private property in Hawaii when title was transferred from landlords to tenants to destroy the “social and economic evils of a land oligopoly.”  (No mention was made of the social and economic evils accompanying the sort of government that unilaterally determines A’s property rights are more important than B’s desire to own that property, the sort of dilemma resolved by the Takings Clause in the Constitution).

Economic redevelopment, Justice Stevens concluded, “unquestionably serves a public purpose.”  Thus, in Kelo, the only question for the Court was whether just compensation was paid.  The ability of the government to remove individuals from their homes in order to facilitate a promenade (to be actually used by the public), shopping center, hotel, new private residences, and a large Pfizer facility was not questioned.  Notably, the Petitioners in Kelo all owned property that was to be developed as part of the private, corporate development, not the promenade or public areas.  That, however, didn’t matter.  As Justice Stevens pointed out (correctly, under the aforementioned precedent), “it is . . . clear that a State may transfer property from one private party to another if future use by the public is the purpose of the taking.”  And because “use by the public” has been redefined as “public purpose,” which has then essentially been interpreted as “benefitting the Government,”* the transfer of Suzette Kelo’s house and property to the Government, who was then supposed to transfer title to Pfizer (a decidedly private organization), there was no constitutional issue with the transfer.

The striking part of Kelo, and the precedents upon which it rests, is the ease with which at least some Supreme Court Justices have amended the Constitution.  Justice Stevens acknowledges that for the first 100 or so years of the nation’s existence, the Fifth Amendment meant “public use.”  The “interpretation” Stevens discussed in Kelo was not a reinterpretation, however.  It was a redrafting, as Stevens admits in so many words.  Unlike many cases in which the Court attempts to interpret the meaning of a word or phrase, the Court did not try to argue that “use” meant “purpose” at the time of the Constitution’s ratification.  Rather, it merely changed the words.

This may seem nitpicking, but the distinction is important.  If a reasonable argument exists that “use” meant “purpose” at the time of ratification, then it is certainly possible (though incorrect, in my opinion) that the Court’s interpretation is correct.  But Stevens did not argue that in Kelo; instead, he stated that the Court reversed course because [the Public Use Test] proved to be impractical given the diverse and always evolving needs of society.”  Thus, the Court did not merely decide that they had gotten the meaning of a word wrong.  They decided that times had changed and with it, the Constitution must, too.

And so it is entirely appropriate that the Supreme Court has now rewritten a statute by re-defining the meaning of the statute’s words during the 10 year anniversary of the Court’s most publically known affirmation of the same principle.  Ten years ago this week, Justice Stevens acknowledged announced that the Court had officially changed the text of the Constitution from “public use” to “public purpose.”  Yesterday, the Court announced that it has no qualms about changing statutes, too and with it, established that we are not, in fact, a government of laws.

  • “Benefitting the Government” is my own interpretation and is not a quote from Justice Stevens or the Court. The Court determined that increased tax revenue from the corporation, new jobs, and housing, in addition to the perceived benefits of “redevelopment” constituted “public purpose.”

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“Let Them Sell Wine!”: U.S. Supreme Court Upholds Right to Personal Property

The fundamentals of Constitutional interpretation have been changed this week (more on this in a forthcoming blog).  Statutory interpretation has been subordinated by politics and the definition of a “fundamental right” has been amended to include “the mystical aphorisms of the fortune cookie,” in Justice Scalia’s interesting words.  However, property rights have at least fended off two strong attacks by the government, at both the state and federal levels.  In City of Los Angeles v. Patel, the Court held 8-1 that a local regulation requiring hotels to allow warrantless searches of their records was unconstitutional.

The subject of this blog, however is Horne v. Dept. of Agriculture, which addresses the Takings Clause and corrects a rather egregious example of New Deal Era commercial meddling and disregard for individual property rights.  While it unfortunately reaffirms Wickard v. Fillburn (the case in which a farmer was penalized for growing his own wheat for his own consumption based on the aggregate effects on the wheat market), it does prevent the Government from actually requiring that individuals and businesses entirely forfeit rights to a percentage of its property for the benefit of “the market.”

Leaving aside the troubling absurdity that a case such as this was even legitimately contentious enough to get to the Supreme Court, the ruling in Horne v. Dep’t of Agriculture, No. 14-275 was a clear-cut victory for the protection of private property rights.  By no means is the ideological conflict between private property rights and the federal government over – see King v. Burwell or Wickard v. Fillburn for startling examples – but the case was decidedly a victory, nonetheless.  “Under the Department of Agriculture’s California Raisin Marketing Order, a percentage of a grower’s crop must be physically set aside in certain years for the account of the Government, free of charge.  The Government then sells, allocates, or otherwise disposes of the raisins in ways it determines are best suited to maintaining an orderly market.”  While those sentences would have made George III, Lord North, and George Grenville blush, this practice had been occurring for nearly 80 years.

Anyone interested in the actual mechanics of the law can read the decision for a description.  This is the pertinent part:

In 2002, the Hornes refused to set aside any raisins for the Government, believing they were not legally bound to do so.  The Government sent trucks to the Hornes’ facility at eight o’clock one morning to pick up the raisins, but the Hornes refused entry.  The Government then assessed against the Hornes a fine equal to the market value of the missing raisins – some $480,000 – as well as an additional civil penalty of just over $200,000 for disobeying the order to turn them over.

The Government then attempted to collect the fine; the Hornes sought to use the unconstitutionality of the Marketing Order as a defense to the imposition of the fine.  After some procedural and legal minutiae (important in the legal world, but less so for the meaning of the Constitution, which we are discussing here), the Ninth Circuit ultimately ruled that the Marketing Order was not  a Taking, as it determined that the Constitution “affords less protection to personal than to real property.”  Because the Ninth Circuit concluded that the raisin growers received some money back from the sale of the raisins they were forced to turn over, the growers were “not completely divested of their property rights.”  The Ninth Circuit viewed the mandate as a regulation, much like a permit.  Thus, the growers received a Government benefit by the Government regulation of the market (really) in exchange for a fee (the cost of the raisins).  Thus, “the Hornes could avoid the reserve requirement by planting difference crops.”

Fortunately, the U.S. Supreme Court disagreed.  First, the Court found that the Fifth Amendment applies with equal force to personal property and real property.  Given the lack of differentiation in the Fifth Amendment, this makes sense.  While the Supreme Court has muddied the waters a bit with past rulings on “regulatory takings,” (which apply to real property), the Court found that “people still do not expect their property, real or personal, to be actually occupied or taken away” by the Government.  By actually taking the raisins from the growers to the Raisin Committee (or the title to the raisins, which is the important distinction), the raisin growers lose all rights to the property.  Thus, this is a “classic” takings case.

The Court also found that the condition to “relinquish specific, identifiable property as a condition on a permission to engage in commerce” constitutes a per se taking.  If the Hornes don’t like the condition, the Government’s argument went, they can sell the grapes for consumption or wine.  “Let them sell wine,” Justice Roberts quipped in response, “is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. “ In short, Roberts wrote, “[s]elling produce in interstate commerce . . . is not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.”

For what it represents, the decision in Horne is a good one.  At a minimum, it holds that the Government has to work to deprive an individual of his rights.  Quoting Justice Holmes, the Court reiterated that “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.”  Thus, “the means [the Government] uses to achieve its ends must be consistent with the letter and spirit of the Constitution.”  So while the Court does nothing this week to limit the Government’s “broad powers,”(and expands them in other cases),  the Court is at least willing to mandate that those powers be exercised in nominal compliance with the Constitutional means.

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PA Supreme Court Decision in Musau Affects Firearms Rights – Ability to Obtain Relief from Certain DUIs!

I previously blogged about the Monumental Firearms Law related Decision from the Superior Court in relation to DUI. In Commonwealth v. Musau, 2013 PA Super 159, the Superior Court held that an individual who, during a first or second DUI, refused to provide blood or breath testing, could only be punished by a maximum of six (6) months in jail, although it is graded as a misdemeanor of the 1st degree. As the maximum sentence that could be imposed was six months, although graded as a misdemeanor of the 1st degree, such a conviction would not trigger the federal disability, pursuant to 18 U.S.C. 922.

While the Commonwealth filed a Petition for Review with the Pennsylvania Supreme Court regarding the Superior Court’s decision in Musau, which was docketed at 510 EAL 2013, the General Assembly acted and amended the law, which was signed by former Governor Corbett on October 27, 2014. As a result, SB 1239 effectively changed section 3802, so that the maximum sentence that can be imposed upon an individual who, during a first or second DUI, refuses to provide blood or breath testing, is five years, which consistent with most misdemeanors of the first degree.

BUT, the PA Supreme Court took no action on the appeal of the Superior Court’s decision in Musau. That is until June 10, 2015, when the Court DENIED the Commonwealth’s Petition for Review. This means that the Superior Court’s decision in Musau is still controlling.

Therefore, if you or a family member were convicted of a first or second DUI, where you/they refused to submit to chemical testing, you may have the ability to petition the court to have your conviction properly reflect the sentencing, which could not be punished by more than six (6) months and therefore would not trigger a state or federal firearms disability. Under the Post-Conviction Relief Act, time is LIMITED.

Contact Us Today to Discuss YOUR Rights – or 888-313-0416

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Quite arguably, the 2nd Amendment took a significant step back recently. In Jackson v. City and County of San Francisco, the United States Supreme Court has “voted” to deny certiorari to plaintiff Jackson, et. al’s appeal from the U.S. 9th Circuit’s decision rejecting her challenge of a San Francisco police code which mandates the lock-box storage of firearms in the home and also that such firearms be disabled by a trigger lock. Jackson v. City and County of San Francisco [writ of certiorari denied] 2015 WL 3537821 (2015).   Effectively, this decision on the part of the U.S. Supreme Court a) takes a shotgun shell sized hole out of progress made by proponents of the 2nd Amendment in District of Columbia v. Heller and it progeny, and b) leaves the scope of what may be considered the 2nd Amendment fundamental (or “core”) rights, in serious doubt. See District of Columbia v. Heller, 554 U.S. 570 (2008). One concession that we may have from all this is the rather strident dissent from the denial of certiorari authored by Justice Thomas, and joined by Justice Scalia. In that dissent, Thomas well lambasts the 9th Circuit decision as being “in serious tension” with Heller – for prohibiting “immediate self defense” of the home. Jackson, 2015 WL at 2. The appeal to common sense made by Thomas is also refreshing. That the San Francisco police code prevents citizens from practicing immediate self-defense when they are “most vulnerable”, at home and/or possibly “sleeping” or otherwise “indisposed”, Thomas cannot fathom how such law does not impose a substantial burden. Id.

How Did We Get Here?

Post-Heller, it seemed improbable that any Federal Court could credibly come to the conclusion that the 9th Circuit has in this case – that the San Francisco Police code in question either a) does NOT place a substantial burden on core 2nd Amendment rights OR b) that the level of scrutiny against such law should be something less than the very highest degree possible (strict scrutiny). To illustrate this point, it is first worth revisiting certain aspects of the holding in Heller and understanding how the wishy-washiness of the Heller decision has proximately opened the door to egregious decisions like Jackson. The reader will probably know that the supposed land-mark nature of Heller achieved a few things for pro-Second Amendment advocates – a) The U.S. Supreme Court held that immediate defense of the hearth/home by conventional firearms, goes to the core of 2nd Amendment rights where the full force of the 2nd Amendment presumably comes into play AND b) rational basis review (the lowest level of means-end scrutiny) is never appropriate to assess laws which impede such self-defense by arms in the home. Heller, supra.  Later, McDonald v. Chicago, decided that the 2nd Amendment (and, by extension, Heller) does apply to the respective states, through the 14th Amendment, and is not merely limited to checking laws issued by the federal government. 561 U.S. 742 (2010).

All Over the Place

Critically though, the Heller Court did not specify the level of scrutiny to be applied to such laws (be it strict scrutiny or intermediate scrutiny); the decision also did not fully delineate what constitutes a “substantial burden” on 2nd Amendment rights even in the context of laws regulating the possession of conventional firearms in the home. Justice Scalia, the author of the Heller decision, may not have foreseen just how fatal this failure would prove to be. But, for proof of the bad omen, we need not go any further than the fact that Mr. Heller is still in court – politicians took immediate advantage of the decision’s weakness by legislating other laws making it (still) very difficult to effectively possess firearms in the District of Columbia (e.g. 1 gun/month purchase limit; mandatory expiration of firearms licenses after 3 years; etc.)! See Heller v. District of Columbia, 45 F.Supp.3d 35 (D.C. 2014). The net effect of this failure has also practically allowed various courts to cobble together their own self-serving jurisprudence wherein what amounts to a “substantial burden” on 2nd Amendment rights and (therefore) which level of scrutiny aught to be applied against laws that impede those rights, is left entirely up to the respective court.

Problematically, courts invariably reference Heller as the seminal authority on what aught to be the scope of 2nd Amendment rights, but do so to reach shockingly different conclusions of law. How do we, for instance, square recent federal court decisions like Ezell v. Chicago (City of Chicago laws which prohibited the operation of gun ranges within city limits while requiring gun-training as a pre-requisite for licensing found to violate the 2nd Amendment as the 7th Circuit held that those laws, in light of Heller, effectively prevented persons from practicing self-defense of the home) or Gowder v. Chicago (where the Federal District Court of the Northern District of Illinois struck state law which forbade permits to persons formerly convicted of non-violent misdemeanors as unconstitutional and triggering strict scrutiny as it, in light of Heller, prevented protection of the home) WITH the 9th Circuit’s decision in Jackson? See Ezell v. Chicago, 651 F.3d 684 (7th Cir. 2011); Gowder v. Chicago, 923 F.Supp.2d 1110 (N.D. Ill. 2012). Besides Jackson, there are any number of a host of other puzzling decisions, in theory referencing Heller, but in practice deviating from Heller, and again underlining a distinct lack of consistency in overall 2nd Amendment litigation – For instance, U.S. v. Chovan (the 9th Circuit rules that federal prohibition of persons convicted of misdemeanor-level domestic violence does not impose any cognizable burden on 2nd Amendment rights, in spite of Heller, and therefore does not trigger any heightened scrutiny – rational basis review being appropriate); Or try Kwong v. Bloomberg (New York City ordinance imposing a $340.00 administrative registration fee for each firearm, upheld by the 2nd Circuit; despite making it practically prohibitive to own a firearm in New York City and though imposing a fee some six times larger than other municipalities of the state, the 2nd Circuit found that such law does not substantially burden the 2nd Amendment and chose to apply only intermediate scrutiny). U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013); Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013).

Where Do We Go From Here?

  If anything, these cases (and Jackson in particular) underline how badly in disrepair the state of 2nd Amendment law is, post-Heller, and how much the U.S. Supreme Court should be involved to set forth a solid and repetitive framework for lower courts to follow. Justices Thomas and Scalia appear to realize this. Indeed, the dissent is also notable for how it moves to set the record straight on  Heller so as to save that decision from the ambiguity it has unwittingly fallen into. Specifically, Thomas chided lower courts about their conventional invocation of Heller as a means for them to independently “balance” the perceived burden imposed by a given law on 2nd Amendment rights and (thus) independently apply some appropriate level of scrutiny, on a sliding-scale. Rather, Thomas states that no part of Heller stands for such a proposition and that the takeaway from Heller should have been the obligation of a court to scrutinize “text, history, and tradition.”  Jackson, supra. Thomas’s dissent also debunked an especially favorite contemporary reference to Heller, where courts have taken that decision to mean that anything less than an outright prohibition on the possession of firearms in the home, does not equate to a substantial burden on 2nd Amendment rights.  Id.  But ultimately, when things are all said and done, a dissent is but a footnote in history. For all Thomas’s and Scalia’s upbraiding of Jackson and lower courts’ evisceration of Heller, nothing will necessarily be accomplished on the strength of those words alone.

Citizens of our fair Commonwealth, who also happen to be gun-rights activists, can rest assured though that laws like the one at issue in Jackson are not likely to ever menace the 2nd Amendment in Pennsylvania. There are at least a couple of reasons for this – Pennsylvania’s Uniform Firearms Act has no such onerous regulation and (furthermore) § 6120(a) of the Act preempts any municipality from regulating in this same field. However, for those concerned with a big picture assessment on the state of the 2nd Amendment today you may well ask yourselves, what the Heller was the 9th Circuit and/or the U.S. Supreme Court, thinking?


Filed under Constitutional Law, Firearms Law, Gun Trusts, Pennsylvania Firearms Law