"Guns and the 2nd Amendment" - articles in state bar's monthly journal

[KyJim]

The March 2017 edition of the Bench and Bar, published by the Kentucky Bar Association is titled "Guns and the 2nd Amendment" and includes four articles on firearms law. It is available in either online magazine form or pdf file at https://www.kybar.org/page/BBarchives. I think these may be helpful to both lawyers and non-lawyers in any state since federal law is discussed. Keep in mind that when discussing state law, it refers only to Kentucky law and the articles remind the reader of this.

Articles include:

• "Papaw's Gun, Flea Markets, and Your Neighbor: The Legal Transfer of Firearms Between Individuals." It gives a very good overview of federal law and one of the co-authors is Deputy Associate Chief Counsel for BATF out of Louisville.
• "Dueling and Kentucky Firearms Jurisprudence." Mostly of interest to Kentuckians.
• "The Still Evolving Jurisprudence of the Right to Bear Arms and the Applicable Standards of Constitutional Review." Heller, McDonald and a few circuit court decisions are discussed. I would call this an introductory article on the topic and I have a nit or two to pick, but helpful to those who haven't dived deeply into the waters of 2A standards of review.
• "Disposition of Firearms in Decedents' Estates." There is a little overlap with the first article but there is what seems to be a fairly good section on gun trusts.

Just thought I would share these with the readers and posters here.

 

[Loosedhorse]

Thanks.

The third article is not comprehensive; I'm sure it was not meant to be. It does a good job of pointing out that many courts have simply ignored Heller: KY's use of the (Heller-prohibited) rational-basis test; and the 7th Circuit mimicking Justice Breyer in making up out of thin air a new standard for review for the 2nd Amendment, unlike that applied to any other enumerated right. In the latter case, Justice Thomas rightly called them out for that error, leaving us to wonder why a per curiam rebuffing of their decision--or at least a granting of certiorari--did not follow.

Contrast that with the handling of Caetano v. Massachusetts (not discussed in the article) in which the MA SJC, in upholding of a conviction under MA's stun-gun ban, used rationale specifically rejected in Heller. The SCOTUS issued a per curiam order to the SJC that essentially said, "No. Try again."

In MA, the conviction was voided, charges were dropped...but the stun-gun ban remains on the books.

I'm not sure I've ever seen a decision as ignored by the federal courts and by the state supreme courts as Heller. Hopefully, with Gorsuch now in place, we'll see more of these absurd cases granted certiorari and reversed.

 

[KyJim]

I agree the third article is incomplete -- call it introductory. The Ky. state case noted was pre-Heller so the law could change here.

 

[Aguila Blanca]

I'm not sure I've ever seen a decision as ignored by the federal courts and by the state supreme courts as Heller. Hopefully, with Gorsuch now in place, we'll see more of these absurd cases granted certiorari and reversed.

Now, now. Maybe you've been following different cases than I have, but it seems to me the lower courts don't "ignore" Heller. They often seem to specifically cite (or refer to) Heller. The only problem is, they say Heller said the exact opposite of what the clear language of the decision actually says. That's not so much "ignoring" as "distorting."

 

[natman]

Now, now. Maybe you've been following different cases than I have, but it seems to me the lower courts don't "ignore" Heller. They often seem to specifically cite (or refer to) Heller. The only problem is, they say Heller said the exact opposite of what the clear language of the decision actually says. That's not so much "ignoring" as "distorting."

We've seen both. In the stun gun case, Caetano v. Massachusetts, the MA court tried to use the hackneyed argument that the Second Amendment only applies to firearm technology available in the 18th century, the "muzzleloaders only" approach, despite the fact that Heller explicitly and thoroughly rejects that argument as "bordering on the frivolous".

I don't think MA tried to distort Heller, they simply ignored it. SCOTUS quite rightly sent it back for reconsideration without even hearing the case.

Now in the Maryland AW ban case, the 4th Circuit did distort Heller beyond all pretense of honesty. I wouldn't be surprised if SCOTUS does the same thing with it.

 

[jdc1244]

I'm not sure I've ever seen a decision as ignored by the federal courts and by the state supreme courts as Heller. Hopefully, with Gorsuch now in place, we'll see more of these absurd cases granted certiorari and reversed.

Incorrect.

Your issue should be with the Heller Court, not the district or appellate courts.

And the Supreme Court has appropriately passed on hearing Second Amendment cases clearly not ripe for review, having nothing to do with Gorsuch.

 

[natman]

Your issue should be with the Heller Court, not the district or appellate courts.

It's been pretty clearly established that lower courts have indeed been ignoring and/or distorting Heller. If you feel differently, how about a more detailed explanation?

 

[Loosedhorse]

Your issue should be with the Heller Court, not the district or appellate courts.

No, my issue is with lower courts who feel they can ignore the Supreme Court; and with their anti-2nd Amendment apologists.