Archive for the 'Right to carry' Category

Kopel Goes to Washington

Posted by on Jan 30 2013 | Gun shows, guns, Kopelization, Michael Bloomberg, Politics, PPC, Right to carry, Second Amendment, Self-Defense, U.S. Constitution

Our resident genius and Second Amendment scholar Dave Kopel was in Washington DC this morning to testify on gun violence, public safety, and the right to arms. He was on a panel of five experts who each gave a 5 minute prepared statement and then fielded questions from the US Senate Judiciary Committee.

Here is a PDF of Kopel’s prepared remarks.

Here is the video of Kopel’s testimony and all the questions he fielded from the Senators.

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How to stop school shootings right now: Abolish pretend “gun-free zones”

Posted by on Jan 09 2013 | education, guns, Right to carry

Real gun-free zones (enforced by metal detectors backed up by armed security guards) are fine for certain buildings. Pretend gun-free zones (bans on gun carrying by licensed people, but no procedures to keep out criminal gun carriers, and exacerbated by the absence of armed security) are magnets for mass killers. There is a reason why mass killers frequently attack schools, movie theaters, or shopping malls which are pretend gun-free zones.

My article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, 42 Connecticut Law Review 515 (2009), examines the policy arguments. The article details some (but far from all) of the instances in which a lawfully-armed person at the scene has thwarted attempted mass murders. The reason that everyone knows about Sandy Hook Elementary, and few people know about Pearl High School is that the latter had a Vice-Principal with a gun.

NRA Executive Vice President Wayne LaPierre’s call for armed guards in schools is a good idea. Especially in light of the copycat effect which results from heavy media coverage of notorious crimes, the policy ought to be implemented right away.

Opponents of LaPierre’s proposal say, wrongly, that armed security at Columbine did no good. At Columbine High School, the attack coincided with the “school resource officer” (a sheriff’s deputy) being off-campus.  The officer returned during the start of the attacks, and fired some long-distance shots at the killers, who were on the school porch. Those shots drove the killers into the school building, and saved the lives of several students who had been wounded. Atrociously, the officer failed to pursue the killers into the building. Dozens of additional officers arrived within minutes, but none of them entered the building either, even though an open 911 line indicated that killings were taking place in the library, while police stood outside, near the library door, just a few feet away. At least 11 of the 13 Columbine deaths could have been prevented if the police had acted promptly. Fortunately, since Columbine, police tactics have changed drastically, to emphasize that whoever is at the scene should immediately and aggressively counter-attack an active shooter. Unlike gangsters or ordinary street thugs, mass killers tend to be weaklings and cowards who crumble quickly at armed resistance.

The limitation of LaPierre’s proposal is that a single guard cannot cover a large building simultaneously, and on a large campus, such as Virginia Tech, campus police may be spread too thin to provide prompt protection.

So LaPierre’s idea ought to be supplemented by the Utah model: if a teacher has (after a fingerprint-based background check, and a safety training class) been issued a permit to carry a concealed handgun throughout the state, there should not be a special exception which prevents the teacher from carrying at her place of employment.

People raise all sorts of speculative objections to this policy. But the Utah experience refutes the speculation. The policy has been in effect for years in Utah, and there have never been any problems caused by armed teachers. Not a single one.

At Utah public colleges and universities, the same law has applied for years, so that school employees, and students who are least 21 years old, can carry lawfully. That has been the rule at Colorado State University since 2003, at almost all other Colorado public institutions of higher education since 2010, at the final hold-out (the University of Colorado) since early 2012, when CU lost 7-0 in the Colorado Supreme Court. Opponents have raised all sorts of hysterical scenarios (e.g., 18-year-olds bringing Kalashnikov rifles to a kegger; students pulling a gun during a heated debate in a literature class), but of course none of these scenarios have come to pass.

The various gun control proposals of President Obama, Mayor Bloomberg, Senator Feinstein, and Rep. McCarthy might or might not be a good ideas in themselves, but even under a best-case scenario, they are not going to instantly and drastically reduce the death toll from mass shootings. Pervasive armed resistance–the abolition of pretend gun-free zones–would have that effect.

To recognize and then eliminate the deadly peril of pretend gun-free zones does not preclude a person from also supporting new gun controls, or improvements in mental health care, or less glamorization of criminal violence by  Hollywood, or whatever else the person thinks could be helpful in in the long run. In the short run, stopping the next Sandy Hook means ending the deadly policy which gave the killer 20 minutes (until people with guns, the police, finally arrived) to fire 150 shots and repeatedly change magazines, murdering at leisure.

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First, Grieve for the Children

Posted by on Dec 18 2012 | Purely Personal, Right to carry, Second Amendment

As you may know, I lost my daughter Parker, my only child at the time, to cancer just days before her first birthday. I cannot express the pure terror of that experience. The reality of shopping for a coffin and choosing a burial plot for your only child is a horror that is thankfully rare in modern America.

It is with this personal experience I have a special sensitivity to what the families in Newtown, Connecticut, are now suffering. I lost my child to illness, and at least had the opportunity to try to comfort her and tell her how much I love her. The families of Newtown had no such luxury, no such last goodbye.

For the last decade, I have had an internal battle trying to understand why God or nature would cause my little girl to suffer so. But for these families, that internal struggle will be greatly expanded. How does a parent even begin to comprehend why another human would steal away their child in such a way?

With a dead child and a son now living with Down syndrome I have lived through experiences I despise. Even so, I cannot begin to imagine the hurt and raw fear that these people are now forced to endure. Our thoughts and prayers are with them.

I have learned something of grief, and the long, slow process it takes. Fortunately, there were many dear friends, family, and professionals to help me steer my way through it. Grief may be delayed somewhat, but it never can be avoided. And it is a bitch.

In the immediate madness after my daughter’s death I had little hope, and thoughts of drastic actions filled my mind. A counselor with special expertise in grieving was quite stern with me. Under no circumstances was I to make any major changes in my life for at least a year. Simply, there was no way I, or anyone in my situation, could see reality clearly enough and calmly enough to weigh important decisions.

I wasn’t to kill myself, quit my job, move away, squander my savings, start doing drugs, or anything for at least a year. And I so desperately wanted to do all those things at different times. She insisted I wasn’t to allow the pain and madness drive a decision that would be hard or impossible to undo if it was wrong.

Grieve first, then make decisions — not the other way around.

This advice not to make decisions during such pain is echoing through by body today as strongly as it did when I wanted to take all those insane actions myself. If I had gone down even one of those paths, it would have been a massive mistake. I see that now. My counselor was right. I can’t thank her enough.

I fear that we, collectively, are not wise enough to take this advice today. And we so need to. In the immediate pain and madness of this crime, the desire to do something, something big, something different, is nearly overwhelming, uncontrollable. I know what this feels like all too well. It feels like it makes all the sense in the world to ban certain firearms, throw restrictions on the law-abiding, disarm civilians, turn ourselves against the Bill of Rights, just as my desires made perfect sense to me during my time of pain.

But given my experience, I worry where we will find ourselves years from now if we allow grief and the madness of pain to take us down a path from which we can’t return. Let us grieve. Let us walk through the pain and hurt and fear. Clear thinking will return, in time. Then let us talk clearly and calmly about the serious decisions that might change us forever.

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Moore v. Madigan, key points

Posted by on Dec 11 2012 | guns, Right to carry

Judge Posner’s opinion for a 2-1 panel of the 7th Circuit. Illinois is the only state which forbids gun carrying in public as a matter of law. There is no provision for the issuance of licenses for concealed carry, or for open carry. Both are banned. There are some exceptions for particular activities (e.g., while hunting), and for persons with a special occupational status (e.g., licensed security guard, some government officials).

According to the Supreme Court, 1791 (year of ratification) is the crucial year for the Second Amendment’s original meaning. The usual suspects (Saul Cornell, etc.) claim that there was no generally recognized right to carry in 1791. But the “Supreme Court rejected the argument. The appellees ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication of the analysis that the constitutional right of armed self defense is broader than the right to have a gun in one’s home. . . .A right to bear arms thus implies a right to carry a loaded gun outside the home.”

“And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.” Besides English precedents about restrictions on carrying in certain places or in certain ways were not general prohibitions. Discussion of frontier conditions, and observation that today,

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

Judge Posner then surveys the social science evidence about gun carrying, and concludes that it is, on net, indeterminate, and besides that, irrelevant:

In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. . . . Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban,  Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.

The State cannot win the case by showing a mere rational basis for the law. Another 7th Circuit case, Skoien, upheld the federal gun ban for convicted domestic violence misdemeanants, and in doing so used intermediate scrutiny, and required the government to produce lots of empirical evidence. In the instant case, the government “would have to make a stronger showing” than in Skoien, since the Illinois carry ban applies to everyone, whereas Skoien involved “a class of persons who present a higher than average risk of misusing a gun.”

“Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home, [James] Bishop [Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L. Rev. 907 (2012)], supra, at 910; David B. Kopel, “The Second Amendment in the Nineteenth Century,” 1998 BYU L. Rev. 1359, 1432–33 (1998)—a more limited prohibition than Illinois’s, however.” Illinois offers no evidence why it has some unique need to ban gun carrying; if Illinois’s carry ban were such a great idea, then at least one or two states would have emulated it.

Reiterates Heller’s exceptions: “children, felons, illegal aliens, lunatics, and in sensitive places such as public schools.” Notes with approval that some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms.

In Kachalsky v. Westchester County, the 2d Circuit recently upheld NY State licensing law that requires a carry permit applicant to prove that he suffers from some unique or unusual threat.  Posner chides the 2d Circuit for re-opening historical issues that were settled by Heller. But “Our principal reservation about the Second Circuit ’s analysis.” Posner writes, “is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction.” In support, the 2d Circuit cited Lawrence v. Texas. Posner replies: “Well of course—the interest in having sex inside one’s home is much greater than the interest in having sex on the sidewalk in front of one’s home. But the interest in self-protection is as great outside as inside the home.”

Moreover, Posner writes, the main purpose of Kachalsky’s inside/outside distinction was to justify intermediate scrutiny for restrictions on guns outside the home. In Madigan, “our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.” [Study tip for law students: 3-tier scrutiny doesn't explain everything. If a government prohibited everyone from speaking out loud in public places, a court does not need to use strict or intermediate scrutiny to decide if the ban is constitutional. Blanket bans on speaking in public places are per se void, and so are blanket bans on bearing arms in public places.]

Judge Posner addresses the concern of 4th Circuit Judge Harvie Wilkinson [US v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)] that delineating the constitutional boundaries of the right to bear arms takes judges into “a vast terra incognita.” Posner agrees, but points out that the new world “has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts.”

The Illinois carry ban is illegal. The Court’s mandate will be 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 as interpreted in this opinion, on the carrying of guns in public.”


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Louisiana amendment to strengthen right to arms, on November ballot

Posted by on Oct 03 2012 | Constitutional Amendments, Constitutional History, Constitutional Law, elections, guns, Militia, Popular Constitutionalism, Right to carry, State constitutional law

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of concealed weapons.” La. Const., art. I, sect. 11. The new language made it indisputable that the state constitution’s right to arms was an individual right, belonging to each citizen.

Unfortunately, Louisiana’s Supreme Court, like some other courts of the late 1970s, was hostile to the right to arms. According to a 1977 Louisiana Supreme Court decision, “The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” State v. Amos 343 So.2d 166, 168 (La. 1977).

It was unexceptional for the court to observe that the right to arms is no more “absolute” than any other right. But the court went much further, and essentially stripped the Louisiana arms right of any meaningful judicial protection. According to the Amos court, any form of gun control was constitutional, as long as it was “reasonable.”

In 2001, the Louisiana Supreme Court affirmed a lower court ruling that held: “The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety.” State v. Blanchard, 776 So.2d 1165 (La. 2001). The Blanchard court cited Louisiana state and federal cases from 1986 through 1999 for this proposition.

So Blanchard adopted an even weaker standard of right to arms protection than had Amos. Under Blanchard, any restriction is alright so long as the government has a “legitimate” purpose.  Blanchard‘s legitimate purpose test copies one prong of the weakest standard of judicial review, the “rational basis” test, which was originally created for Fourteenth Amendment Equal Protection cases. Under this test, every law is constitutional so long as the government has a “legitimate” purpose, and the law has a “rational” connection to that purpose.

Fortunately, gun control has not been politically popular in Louisiana in recent decades. So even though the state’s courts have essentially nullified the constitutional right to arms, Louisiana’s firearms statutes are not, in general, oppressive.

In the November 2012 referendum, Louisiana citizens will be given the opportunity to remedy the wrong decisions in Blanchard and Amos. Voters can adopt new constitutional language: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.”

If adopted, the referendum would make two direct changes:

1. For the first time in Louisiana, concealed carry would be constitutionally protected. This makes sense, because in the 21st century (unlike in the 19th), concealed carry is most common way that Louisiana citizens exercise their right to carry handguns for lawful protection. Like most other states, Louisiana has a statutory system by which concealed carry permits are issued under fair and objective standards.

2. The judicially-imposed “legitimate purposes” test (the weakest test) of judicial review would be replaced by the strongest test: strict scrutiny. Under “strict scrutiny,” the burden of proof is reversed; the government bears the burden of proving that a gun control law is constitutional. To pass strict scrutiny, a law must be proven to serve a “compelling state interest” (not merely a “legitimate purpose”). Even if the law does advance a compelling state interest, the law is constitutional only if the government additionally proves that the law is “narrowly tailored” and is the “least restrictive means” to advance the compelling state interest.

Louisiana would be the first state to write the “strict scrutiny” standard into its constitution. This would become the model in other states for significantly strengthening protection of their own constitutional right to arms. So it is unsurprising that the proposed amendment is strongly supported by the National Rifle Association, the Louisiana Shooting Association, and Gov. Bobby Jindal, who is the most pro-right to arms Governor in Louisiana history, and a national leader on the issue.

Surprisingly, some people in Louisiana are opposing the Amendment on the grounds that it supposedly promotes anti-gun laws. For example, at this website, the author remains invincibly ignorant, even when the facts are patiently explained an attorney from the Louisiana Shooting Association. The website author wants to live in a world of absolute rights. Be that as it may, Louisiana today is not a state of absolute rights; it is a state where the right to arms essentially does not exist, as a matter of state constitutional law, as mis-interpreted by state courts. The amendment would remedy the misinterpretation, and make it drastically harder for future courts to uphold anti-gun laws.

A victory for the Louisiana referendum will profoundly strengthen the right to arms in Louisiana, and have significant positive effects nationally. A defeat would validate the actions of previously Louisiana judges in recent decades who deigned that the right to arms was unworthy of judicial protection.

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Independence Institute Writers in the News

Posted by on Aug 13 2012 | criminal justice, denver, Growth of Government, guns, Op-eds, PPC, Right to carry, Taxes

Gun laws, tax increases and the Californication of Republicans are all topics of recently published works by Independence Institute writers.

In USA Today, the Denver Post and National Review Online, Independence Institute research director Dave Kopel makes the case for both resisting calls for expanded gun control in the wake of the Aurora theater shooting and for not inadvertently making a celebrity of the killer.

Also in the Denver Post, guest writer joshua Sharf explains that Denver Mayor Michael Hancock’s proposed permanent property tax increase lacks vision:

The mayor’s proposal assumes that rising home values necessarily mean rising incomes. But the Bureau of Labor Statistics reports Denver’s weekly income fell nearly 5 percent in 2011. The mayor’s mill levy override scheme would mean an immediate property tax increase of 10 percent for households who are still finding it difficult to make ends meet.

Whole thing here.

In the Colorado Springs Gazette, senior fellow Barry Fagin advises Colorado Republican against Californicating themselves:

Do Republicans want to be like Democrats, or do they want to beat them? If Colorado is to avoid California’s fate, then Colorado should avoid California’s Republicans. They should hit economic issues much harder, and stop obsessing over problems that the federal government can’t solve, are fundamentally religious in nature, or are better addressed through cultural change and not the ballot box.

Read it all here.

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Amicus brief in Woollard v. Gallagher, Maryland right to bear arms case

Posted by on Aug 06 2012 | guns, Right to carry

Earlier today, I filed an amicus brief in Woollard v. Gallagher, currently scheduled for an expedited hearing around October 23 before the Fourth Circuit. The case is an appeal from the decision of the federal district court that Maryland’s granting of handgun carry permits only to persons who can prove a specific, imminent threat is unconstitutional. The winning lawyer in the case below was Alan Gura, representing Raymond Woollard and the Second Amendment Foundation.

The brief is filed on behalf of the  two major professional associations of police firearms trainers: the International Law Enforcement Educators & Trainers Association (ILEETA); and the International Association of Law Enforcement Firearms Instructors, Inc. (IALEFI). Also joining the brief are Professor Clayton Cramer, and the Independence Institute.

Here’s the Summary of Argument:

Strong protection of the constitutional right to the licensed carry of handguns for lawful self-defense does not interfere with police efficacy in cracking down on illegal gun carrying.
Data from law enforcement agencies shows that persons with carry permits are far more law-abiding than the general population. Assertions that licensed carry harms public safety are based on false data from a gun prohibition group.
The case can be resolved without need for a standard of review, because the near-complete suppression of an enumerated constitutional right can never be constitutional.
Maryland law, like the laws of states which generally comply with the Second Amendment, leaves ample discretion for denial of permits to unsuitable applicants, and allows denials for many reasons other than felony conviction.
Upholding the decision of the district court would be consistent with precedent in other states protecting the constitutional right to bear arms.

In addition to the Fourth Circuit’s Woollard case, there are major cases on the right to bear arms currently pending before the Seventh Circuit and the Ninth Circuit. There may a good possibility that at least one of them will eventually be heard by the Supreme Court, perhaps in the 2013-14 term.

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What Judge Reinhardt missed

Posted by on Aug 05 2012 | guns, Right to carry

Eugene Volokh’s post below discusses a dissent by the Ninth Circuit’s Judge Reinhardt in a capital sentencing case. Judge Reinhardt accurately states that carrying a gun is a Second Amendment right, to make the broader point that carrying a gun is not, in itself, illegitimate behavior. Judge Reinhardt could have strengthened his opinion by citing two cases in which the U.S. Supreme Court reversed capital convictions because the district court had improperly treated gun carrying as evidence of malign, homicidal intent.

The first of these is Gourko v. United States, 153 U.S. 183 (1894). John Gourko was 19 year old Polish immigrant.  He lived with  his brother Peter in a mining camp in the Choctaw Nation, in what was then the federal Indian Territory of Oklahoma.  Peter Carbo, another Polish immigrant, aged 45, has dispute with them over certain loads of coal, which he claimed the Gourko brothers had filched. According to a witness, Carbo threatened “to shoot John like a dog.” Carbo was easily capable of violence; he weighed 200 pounds, was very strong, and was considered dangerous. John Gourko, weighing 130 pounds, was considered delicate “and was deemed a quiet peaceable boy.”

One holiday, Carbo confronted John Gourko near a post office, shaking a fist in his face, and screaming at him. Witnesses feared the Carbo would kill John on the spot. About half an hour later, there was a confrontation between Carbo and John Gourko in a billiard hall. They argued, and then went outside. Gourko fired his pistol once over Carbo’s head, then twice to the body, killing him.

The Supreme Court’s opinion was written by Justice John Marshall Harlan. Justice Harlan noted that Gourko’s act might have been lawful self-defense, but that was not the precise issue as the case had come to the Supreme Court. Instead, the question was the validity of District Judge Isaac Parker’s instructions to the jury about the difference between premeditated murder and manslaughter. Judge Parker had told the jury that Gourko’s carrying of a handgun could be considered evidence of premeditated intent to kill, even if the carrying was purely for self-defense.

Justice Harlan, writing of a unanimous Court, disagreed: “the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided he rightfully so armed himself for purposes of self-defense, and if, independently of the fact of arming himself, the case tested by what occurred on the occasion of the killing was one of manslaughter only.”

Justice Harlan’s sympathy for Gourko may have had some basis in Harlan’s own life. When Harlan was a young man, his cousin (also named John Harlan) was prosecuted for killing a local character who, Justice Harlan later recalled, “advanced upon John as if to attack him.”  John Harlan (the cousin, not the future Justice) drew a pistol and killed the attacker. During and after the trial, which resulted in an acquittal on grounds of self-defense, the deceased’s “gang” had well-known intentions to kill cousin John Harlan at the first opportunity. Thus, John Harlan (the future Justice) and two other men kept a constant guard on their cousin; during this time, the two men and the future Justice “were heavily armed.”  Justice John Harlan was also personally familiar with non-criminal reasons for carrying firearms, being an avid hunter and target shooter, and a commander of the Kentucky militia during the Civil War.

Gourko’s conviction and death sentence were reversed, and he was granted a new trial. He pled guilty to manslaughter, and was sentenced to four years in prison.

The second case is Thompson v. United States, 155 U.S. 271 (1894):

Thompson was decided in the term following Gourko, and it too came from District Judge Parker’s court.  Thomas Thompson was a 17 year old Creek Indian farmboy. Half a mile away lived Charles Hermes, who made threats to kill Thompson if Thompson came near the Hermes farm.

One afternoon, Thompson was sent to deliver a bundle to a woman who lived a few miles away. The only road went by the Hermes farm. Passing by the farm, Thompson got into a heated argument with Hermes, who repeated his threats to kill Thompson.

After delivering the bundle, Thompson, realizing that the only road home was the road that ran by the Hermes property, borrowed a Winchester rifle.

As Thompson rode home, Hermes’ sons called out to him. One of the sons, Charles Hermes, started towards a gun that was propped on a fence. Thompson, believing that Charles Hermes intended to kill him, shot Charles Hermes first, and then fled on horseback.

Charged with murder, Thompson pleaded self-defense. In the Thompson trial, Judge Parker instructed the jury that the jury was free to conclude that Thompson had provoked the trouble, and therefore lost his right to self-defense; according to Judge Parker, Thompson could be viewed as the instigator of the confrontation because he had armed himself and returned to a place where he knew Hermes would be.

Similarly, the judge instructed the jurors that to the effect that they should not convict Thompson of manslaughter, rather than murder. By arming himself, Thompson had shown the kind of deliberation and premeditation which amounts to murder.

Quoting at length from the Gourko case, the Supreme Court unanimously reversed Thompson’s conviction because of the defective jury instructions. Merely being armed, and traveling by the only road available could not possibly be considered evidence that Thompson wanted to provoke trouble, or that he intended to kill Hermes, the Court said.

Concluded the Court: the trial court’s error “is in the assumption that the act of the defendant in arming himself showed a purpose to kill formed before the actual affray. This was the same error that we found in the instructions regarding the right of self-defense, and brings the case within the case of Gourko v. U.S., previously cited, the language of which we need not repeat.” Thompson was freed, and was not retried.  The unanimous opinion was written by Justice George Shiras, Jr.

Gourko and Thompson are among The Self-Defense Cases, a set of decisions from 1893-96, plus the later Brown v. United States, 256 U.S. 335 (1921) (Holmes, J.) (“Detached reflection cannot be demanded in the presence of an uplifted knife.”). These are the cases in which develop the no duty to retreat rule, which we today sometimes call “Stand Your Ground.” As Justice Harlan wrote in Beard v. United States, 158 U.S. 550, the victim of a violent attack

was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

(Emphasis added.) The cases are discussed in my article  The Self-Defense Cases: How the Supreme Court Confronted a Hanging Judge in the Nineteenth Century, 27 Am. J. Crim. L. 294 (2000) (cited in United States v. McElhiney, 275 F.3d 928, 935 n.2 (10th Cir. 2001)). The article contains the citations for all the quotes in this Post.

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Colorado Consensus on Gun Laws

Posted by on Jul 26 2012 | guns, Registration, Right to carry

In an article today for National Review Online, I detail how “Broadly supported post-Columbine reforms balance gun rights and gun control”:

After the Columbine High School murders, Colorado enacted eight specific gun-law reforms. Three of these reforms are examples of what people usually call “gun control,” and five of them are in the “gun rights” category. But to many Coloradoans, all eight of the measures are cohesive and consistent. They are all based on the same principles: Guns in the wrong hands are very dangerous, and guns in the right hands protect public safety. Colorado strengthened its laws to make it harder for the wrong people to acquire guns and simultaneously strengthened laws to remove obstacles to the use and carrying of firearms by law-abiding citizens. As a whole, the laws embody a compromise that enjoys broad public support; they settled a gun-policy debate that had raged in Colorado for 15 years. The Colorado consensus has already saved lives.

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Dave Kopel on Piers Morgan Tonight

Posted by on Jul 20 2012 | guns, Kopelization, Media, PPC, Right to carry, Second Amendment, television

Catch Independence Institute research director Dave Kopel on CNN’s Piers Morgan Show tonight (7-8:00 PM Mountain Time) discussing the Aurora movie theater shooting.

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