Sunday, June 27, 2010

McDonald, the 2nd, and the States

The Supremes handed down their decision in McDonald v. Chicago today. This case follows D.C. v. Heller, in which the Supreme Court held a city ordinance banning the possession of firearms violated the right to keep and bear arms expressed in the Second Amendment to the Constitution. The Heller decision was limited, though, in that it only dealt with a firearms ban that was in place under Federal government authority, since it dealt with the District of Columbia.

Once the Heller decision was filed, a number of challenges to various ordinances limiting or banning firearms were made. The Second Circuit Court of Appeals, in a decision signed by now-Justice Sotomayor, held that the Second Amendment did not apply to the states. The Ninth Circuit, in a decision which has been referred for en banc review (which is on hold pending the word from the Supremes in McDonald), held that the Second Amendment did apply to the states, as it dealt with a fundamental right (I talked about it here).

Right now, the decision only appears to be available as a 214 page pdf. So, most importantly, the Supreme Court has ruled that the Second Amendment does prohibit state and local governments from restricting the right to keep and bear arms (too much). The decision is 5-4, with the Opinion of the Court written by Justice Alito and Justice Thomas concurring in part and concurring in the judgment. Justice Stevens dissented (no surprise) and Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor (not really a surprise, either). Lots of meat there, lots to read. I'm sure scholars of Con law are working on analyses right now. In the meantime, the Sullivan Act's progeny are going to cost lots of cities and towns lots of money.

For further reading, but less than the 214 pages of the McDonald decision, Wikipedia has a pretty comprehensive article on the Second Amendment and Court decisions which I'm sure someone is updating right now.

Well, having read the opinion of the Court, the concurrences, and one dissent, I'll add a couple of things.

First, there is a fair bit in here for attorneys who will argue as to the continuing validity of various restrictions on firearm ownership. On page 26 of the Slip Opinion, the Court cites to language from Heller describing handguns as being protected as they are the weapon of choice for self defense. On page 39, the Court describes the "central holding" of the Heller decision as "...the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." I predict this language will be cited in response to any argument that restrictions on automatic weapons, any long guns (including short barreled shotguns), nunchucks, switchblades, or suppressed firearms is unconstitutional. As the Supreme Court has held that the right preceding and underlying the Second Amendment is that of self-defense, only "undue" restrictions on weapons that are both "preferred" (which, likely, will mean in common use today) and "suitable" (which, likely, will mean whatever a given judge decides) for self defense will be overturned. Want a Remington 1100 chopped off right in front of the gas port and loaded with buckshot to protect the homestead? Don't hold your breath. This conclusion is reinforced by the plurality's admonition (p. 45) that it is important to keep in mind that Heller held a right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose".

Second, and very good news, is that the Opinion of the Court makes it pretty clear that Justice Breyer's repeated calls for an "interest balancing test" to decide whether given statutes infringe the right to keep and bear arms is, for now, not going to become law. The plurality twice notes, at page 45 of the Slip Op. and again on page 50, that it explicitly rejects such a test and that the majority in Heller did so as well. Combined, that's precedent. Also, the majority characterizes the Second Amendment right as "fundamental". The Seventh Circuit had held in this case that Chicago's handgun ban had a rational basis to a legitimate state interest. The "rational basis" test is less demanding than an "interest balancing" test rejected here. I believe this will only leave lower courts with "strict scrutiny" at the test for evaluating firearms restrictions. So, those restrictions will have to be narrowly tailored to accomplish a compelling governmental interest and must, in addition, be the least restrictive means of accomplishing that interest. While this is good news, you have to keep in mind that the limitations inherent in the right being protected as described just above. Great news for the folks in DC still trying to get handguns in the face of persistent foot dragging by the city government, though.

Justice Scalia's concurrance is a fairly vituperative calling out of Justice Stevens' dissent and political philosophy, I'd speculate that the tone would be a little different if Stevens was staying on the bench. Interesting read, depending upon your definition of interesting.

P. 67 of the Slip Op.- Justice Thomas' dissent- A great (from an originalist perspective) treatise on the doctrines of selective incorporation, the Privileges and Immunities Clause of the 14th Amendment, and the 14th Amendment in general. Most legal textbooks are less informative. Personally, I think his argument that the Second Amendment applies against the states due to the Privileges and Immunities clause is logically and legally unassailable, despite the hundred and thirty years of (bad) decisions stemming from the Slaughterhouse Cases (which are a fine example of authority justifying its conclusion by tautology) and Cruikshank.

Saturday, June 26, 2010

the rain

"The next day, at about three in the afternoon, the western horizon would be a wall the color of lead. On the front of the wall would be little clouds, pale silhouettes of torn cotton. I'd try to remain calm; baby storms would have been skittering by for a week now, teasing the powdery earth with sprinkles and infusing the dry air with a breath of mountain pine, but nothing had happened yet. I'd go back to work.
A half hour later, a dark blast of wind, laden with the odor of wet dust, would punch through the yard, swirling sand around the windows, rattling the panes. From the yard I'd see a wall towering over the town and know that we weren't going to have to water the asparagus again. We'd stand and inhale for a moment, stretching our arms toward the storm; then, as the hiss of a billion approaching raindrops bore down, we'd run. Pick up the hawk, call the dogs, slam the windows as the rain bashed in, soaking papers five feet from the sill. In the roaring cascade outside, we could not see the ground, hidden in the white smoke of atomized rebounding droplets. And then, hail--BB-sized, pea-sized--drifting in windrows beside the walk; thunder, shaking the house, lightning flashing all around, a nearly simultaneous bang and flicker. We'd grin and the world would smell like water."
Stephen Bodio, Querencia, Clark City Press 1990, p. 8-9.

Right now, we're in the "baby storms teasing" stage, hoping for the big ones to come in and wet things down.

Friday, June 25, 2010


A few additions to the blog roll, a couple of which I've been meaning to add for a good while.

Long stalks, tense ambushes, tricky shots, and more, including movies, culture, and recipes for the lagomorphs collected. Rabbit Stew, Hubert Hubert's blog (mostly) on rabbit stalking with an air rifle in England.

Tovar Cerulli's thoughtful blog: A Mindful Carnivore, which, among other things, features a lot of thought about hunting from a former vegan who turned to hunting in part as a way of ensuring ethical meat.

Beautiful landscape photos of the Southwest at Crest, Cliff, & Canyon by Jackson, also known as Peculiar of Odious and Peculiar. If you can't get out in a big landscape yourself, get a taste of one there.

Last, there is author and gun writer Tom McIntyre's blog, McIntyre Hunts, pointed out by Steve Bodio at Querencia and Chas Clifton at Southern Rockies Nature blog.

Monday, June 14, 2010

birds on a wire

Courtesy of my Dad over in SE Texas, photos of the whistling ducks that have been hanging out on the powerline by their house every morning. Something just wrong about seeing that waterfowl silhouette from this angle and in such a location.

Ah, the melodious chirp of the duck, greeting the dawn!

Sunday, June 06, 2010


Here recently Steve Bodio put up a couple of posts about revolvers over on Querencia and I thought I'd throw up something on the subject as well. Revolvers, like pump shotguns, are something mostly and, bestly, American. The Webley aside, most other-than-American revolver designs are more curiosities than commercial or military successes (bet there's a comment from someone about the Nagant). From the U.S., though, there are the entire series of Colt single actions, culminating with the Single Action Army, the Smith & Wesson top-break revolvers, the Smith and Wesson Military and Police in all it's various guises (one hundred and twelve years of production and counting!), and then there's this gun:

This particular revolver is a Colt "New Service" manufactured in 1934 and chambered for the .38 Special cartridge. The New Service model was the largest-framed double action revolver built by Colt and was introduced in 1897. By the time production ceased during World War II, three hundred and fifty-some thousand revolvers had come off the production line. The reason for the large frame is that it was originally designed to accommodate the .45 Long Colt cartridge. Thousands of New Service revolvers were sold to law enforcement agencies in the United States and abroad, as well as to the U.S. military. Also, a substantial number were chambered in .455 Eley (a slightly longer version of the famous .455 Webley cartridge) and purchased by Great Britain as military sidearms.

The revolver is fitted with a Fray-Mershon "Sure Grip" adapter and, as you can see, has lots of holster wear and wear in general- not surprising for a working pistol carried on a regular basis. The grip adapter is designed to fill in the stocks a bit and improve double action shooting.

My father started with the Border Patrol in the early 60's and, interestingly enough, was first issued a .38 Special Colt New Service, albeit one fitted with a heavy barrel, rather than the tapered barrel of this pistol. Dad recalls the Colts as having a remarkably good trigger, which is high praise considering he carried and shot thousands of rounds through a Smith and Wesson Model 19 in the course of his later career. You can read a short article about the New Service revolver in the Border Patrol here.

One of the attractions of firearms for those of us who enjoy guns is their durability and history. Some of the more useful and durable designs were produced for decades and used around the world. Any given gun can be beaten into junk, but a lot of worn old pistols, rifles, and shotguns have years of use behind them and, if cared for a bit, left in them still. While worn finishes, nicks, and scars aren't necessarily sought after features, the stories that attach to the dings render them less marring.

So, what makes this old gun special? No particular romance is associated with it and it would be nothing special to a collector, as those folks mostly look for pristine condition. On the other hand, there is this provenance- the pistol spent a career in the U.S. Customs Service, belonging to a family friend who, at one point, was the District Director of Customs for the Port of San Diego. The original owner has long passed so any particular stories attaching to the gun are unavailable. The pictures, though, tell of thousands of hours of carry and likely hundreds if not thousands of shots fired at the range. So, this old pistol has a family connection and over seventy-five years of use- it's good for another seventy five, or longer, too.