From Fortune: Court Rules That Medical Marijuana Card Holders Can't Buy Firearms

It'll be fun following the fallout of this one - hat tip to JS.

- Click here for the article.

Because it can make them “irrational and unpredictable.”

If you have a medical marijuana card, the 9th U.S. Circuit Court of Appeals says that you can’t buy a gun.

The court ruled 3-0 on Wednesday that a ban preventing medical marijuana card holders from purchasing firearms is not in violation of the Second Amendment, the Associated Press reports. There are nine western states under the appeals court’s jurisdiction, including Nevada, where the case originated.

A lawsuit was filed in 2011 by Nevada resident S. Rowan Wilson after she tried to purchase a gun for self-defense and was denied based on a federal ban on the sale of guns to users of illegal drugs. Though marijuana has been legalized in some places on a state-by-state basis, it remains illegal under federal law. The court maintained that drug use “raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

Wilson claimed that she doesn’t actually use marijuana, she simply obtained a card to show her support for its legalization. The appeals court agreed with guidelines from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives that firearms sellers should assume that medical marijuana card holders use the drug.

More on the 85th session

- Open Carry, Funding Likely Police Issues Next Session.

Within hours of the recent ambush killings of five Dallas police officers — and again 10 days later, when three Baton Rouge officers were killed — messages of respect and support for law enforcement coursed through the nation's social media, filled the airwaves and prompted countless press releases.

As politicians nationwide rushed to reiterate their support for police, Texas elected officials figured prominently in the calls for a greater societal embrace of officers and more protections for first responders who perform some of the toughest jobs.

"As Texans and Americans mourn the loss of our men and women in uniform, we must continue to remember that police officers put their lives on the line every day to ensure our safety and our freedoms," Abbott said in a statement a day after the July 7 Dallas shooting.

But while grateful for the rhetoric, law enforcement groups have seen some disconnect between the professions of support and the track record of Texas elected officials in listening to their concerns.

Most notable was the 2015 legislative session, when lawmakers — including Patrick and Abbott — enthusiastically approved the open carry of handguns by licensed Texans despite opposition by many of the state's law enforcement officials.

As the 2017 legislative session approaches, law enforcement groups say they'll be asking lawmakers to consider revising the open carry law, as well as looking at restoring funding for programs that help police do their jobs. They say they'll focus on bread and butter issues like funding officer training and maintaining retirement and death benefits.

- In School Choice Fight, a Fresh Force Emerges.

An ambitious new player has emerged in the controversial effort to use taxpayer dollars to help Texas parents send their kids to private or religious schools.

Texans for Education Opportunity, whichlaunched in May, supports all forms of “school choice,” including charters and traditional public schools, said Executive Director Randan Steinhauser, an Austin-based school choice activist and public relations consultant who co-founded the nonprofit advocacy organization.

But she said the group’s main goal is to get Texas lawmakers to create “education savings accounts” — a program under which the state would dole out taxpayer money directly to parents via debit card to cover approved education-related expenses, like private school tuition, tutors or homeschooling materials. About a half-dozen other Republican-dominated states, including Florida and Arizona, have already created such programs, although most of them target specific student populations, including disabled and low-income students. (Nevada is an exception, offering assistance to all students.)

Literature provided by Texans for Education Opportunity, which appears to be the first statewide organization focused solely on school choice, suggests the state offer up to $7,800 for any student pursuing an alternative schooling route. That is about 90 percent of what the state provides on average to traditional school districts per student for annual maintenance and operations, the pamphlet says.

More on the evaluation of open carry policies

This builds off the post from yesterday. Both from the Texas Tribune.

- Six Months In, Few Open Carry Complaints.

So far, officials say, the newly allowed open carry of handguns hasn't spawned any major incidents.

“I don’t know of any instances where there has been violence, arrests, disturbances that have taken place,” said Kevin Lawrence, executive director of the Texas Municipal Police Association. “I think it’s been amazingly quiet up to this point.”

In February 2015, as the Legislature considered making Texas the 45th state to allow the open carry of handguns, 75 percent of surveyed state police chiefs said they opposed the new law.

James McLaughlin, the executive director of Texas Police Chiefs Association, said that at the time his organization’s members worried that open carry might turn carriers into easier targets.

“If the bad guy goes into a place, the first person they’re going to shoot is a uniformed officer,” he said. “The second person they’re going to shoot is the one they see has a gun.”

But McLaughlin, too, said he had heard of no incidents in which the new law played a major factor.

The Dallas shootings, however, rekindled arguments about revisiting the open carry laws, which state Rep. Diego Bernal, D-San Antonio, called "Republicans thumbing their nose at law enforcement."

Rep. Larry Phillips, R-Sherman, who helped push open carry through the Legislature, said he and his colleagues did weigh the opinion of law enforcement. Despite the opposition from chiefs, rank-and-file members Phillips spoke to were generally receptive to the bill, he said.

- Black Gun Owners in Texas Decry Racial Bias.

The tensions surrounding black gun ownership have a long historical record in the United States, according to research from the National African American Gun Association. Dating back to the 17th century, French and British colonies have openly prohibited gun ownership among black people and Native Americans. And during slavery and the post-Civil War period, states in the South imposed strict laws against black gun ownership that lasted through the Civil Rights Movement. When California’s legislature banned open carry in the 1960s, it was in response to the Black Panthers openly carrying guns.

Black gun owners also are frustrated with what they see as indifference from their allies. The National Rifle Association, the nation's most powerful gun rights organization, took two days to comment on Castile's death, only posting a statement on Twitter calling the shooting "troubling" and saying it "must be thoroughly investigated" after a swell of online outcry.

“The NRA is an organization that has a bunch of old white guys, and honestly, I don’t think they have the tools and minorities in the organization to address these types of issues,” said Cargill, who said he's a national member of the association. “They don’t have enough diversity in their staff and leadership. Probably, they were afraid to make the wrong statement.”

The NRA did not respond to The Texas Tribune’s requests for comment. A spokesman for the Texas State Rifle Association said in a statement that while the group does not speak for the NRA, "every law-abiding citizen, no matter their race, creed, or sexual preference, has a right to protect themselves."

Racial profiling and gun ownership had emerged as hot-button issues during last year's legislative session when state lawmakers were debating the open-carry law that went into effect in Texas this January.

Amid concerns that minority gun owners would be racially profiled by officers, Sen. Don Huffines, R-Dallas, introduced an amendment that would prohibit officers from stopping someone solely because they are visibly carrying a handgun. The measure, which eventually passed, attracted support from Democrats who said it would help prevent racial profiling. Conservatives said it also was necessary to protect the Fourth Amendment rights against unreasonable search and seizure of legal gun owners.

From the Dallas Morning News: Open carry creates confusion during Dallas police ambush, but supporters say law works

For our look at policy evaluation in the section on public policy: the consequences of open carry in crime scenes.

- Click here for the article.

When rifle shots rang out in downtown Dallas during Thursday night's protest, some of the demonstrators were also carrying rifles.

In the ensuing chaos, one of them was labeled a "person of interest" after police released a photo of him carrying an AR-15 rifle. Others were stopped and questioned by police.

It was not immediately clear Saturday whether any of those who were legally armed delayed or hampered the police response to the shooter, Micah Xavier Johnson, 25, of Mesquite. Dallas police did not respond to questions.

But Dallas Mayor Mike Rawlings said: "It's logical to say that in a shooting situation, open carry can be detrimental to the safety of individuals."

Johnson, a former Army soldier, was killed early Friday when police used a robot to detonate a bomb near him. That was after he killed five police officers in a rampage through downtown.

It is legal in Texas to openly carry rifles and has been for decades. People with rifles have been spotted at recent public protests across the state.

Rawlings said Dallas police Chief David Brown told him that people running through the shooting scene with rifles and body armor required officers to track them down and bring them to the police department. Whether that was time that could have been spent trying to find and stop the shooter is something police will have to comment on, Rawlings said.

. . . But C.J. Grisham, president of Open Carry Texas, said police should be able to separate the good guys from the bad guys in such a scenario because "the bad guys are the ones shooting."

"If you can't identify a threat, you shouldn't be wearing a uniform," he said.
Grisham said some in law enforcement look at law-abiding gun owners as a threat.
"It's not that difficult to tell the difference between a bad actor and a good actor," he said. "The good guys are going to obey commands, the bad guys are not."

Law enforcement organizations such as the Dallas Police Association have generally opposed the state's new open carry law regarding handguns, which went into effect this year.

 

From the American Constitution Society: Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

A recently published book talks about how organized citizens groups have been able to transform constitutional law by developing and pursuing court cases that force the Supreme Court to reconsider the meaning of the Constitution.

- Click here for a summary from the author.

President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.

In my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, I tell this story, tracing the strategic choices and incremental victories and losses that ultimately brought us marriage equality. I also show how the individual right to bear arms, dismissed as a fraud by Chief Justice Warren Burger in 1990, became a constitutional right in 2008. Here, too, the key lies in civil society, and in particular in the National Rifle Association, almost certainly the most effective civil rights organization in the United States today. The story of how the NRA prompted recognition of an individual right to bear arms after courts had denied one existed for 100 years has striking parallels to the marriage equality campaign and provides important lessons for anyone seeking constitutional change, whether in a liberal or conservative direction.

Finally, I ask what made President George W. Bush curtail so many of his most aggressive counter-terrorism measures by the time he left office, given the history of courts and Congress deferring to presidents in times of crisis. Here again, the answer lies in the work of civil society groups—such as the Center for Constitutional Rights, the ACLU, Human Rights First, and Reprieve. The challenges human rights groups faced were quite different, but they, too, had to seek alternative forums from the Court itself if they were to succeed in pushing back against Bush and Cheney.

Through these three accounts, I seek to show that the real movers of constitutional change are not the elite lawyers who argue before the Supreme Court, nor the Justices themselves—although both sets of actors of course play a part—but ordinary citizens, working together to make their own shared vision of constitutional ideals into constitutional law. In this sense, you might even say, it is “citizens united” who are the true drivers of constitutional change, and the real “living Constitution.” The book underscores the central importance of groups like the American Constitution Society to the vitality of our Constitution, argues that healthy constitutionalism requires, in addition to the separation of powers and judicial review, a robust and engaged civil society, and provides a template for action.

From Vox: House Democrats are staging a sit-in to force a vote on gun control

This doesn't happen everyday.

- Click here for the article.

A week after a Senate filibuster forced a vote on gun control measures, Democrats in the House of Representatives are holding a sit-in on the House floor to try to get Republicans there to do the same.

"The time for silence and patience is long gone," Rep. John Lewis, the Georgia Democrat and hero of the civil rights movement who is leading the sit-in, said in a stirring speech Wednesday morning. "The American people are demanding action. Do we have the courage, do we have the raw courage to make at least a down payment on ending gun violence in America?"

Here's a look at it from a media perspective.

- How C-SPAN is skirting the House TV blackout on Democrats' sit-in.

A more comprehensive look from Roll Call:

- House Democrats Stage Chamber Floor Sit-In For Gun Vote.

From Politico: Senate rejects all gun bills

More on last night's vote:


- Click here for the article.

The Senate voted down four separate gun measures Monday in the aftermath of the worst mass shooting in modern U.S. history — showing the partisan paralysis over gun control has barely moved on Capitol Hill despite the stream of continued gun violence across the country.

Lawmakers took up two separate issues involving gun regulations: how to improve the nation’s background check system for those who want to purchase firearms, and how to ensure those with terrorist ties do not obtain a gun. But those questions remained unresolved by lawmakers as of Monday night.

Instead, Democrats made it clear they want to make it as painful for Republicans to oppose their gun amendments, whether through a flood of advocacy calls to their Senate offices or at the ballot box in November.

For a look at the actual votes, click here: Senate Roll Call Votes.

The votes were not for a unique stand alone bill on gun control. Instead they were offered as amendment to one of the appropriations bills that has to passed later this year. Click here for it:

- H.R.2578 - Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016.

For more on the appropriations process:

- House Committee on Appropriations.
- Congress.Gov: Appropriations for Fiscal Year 2017.

From the NRA-ILA: NRA Statement on the Senate Voting Down Anti-Gun Bills

- Click here for the link.

The executive director of the National Rifle Association Institute for Legislative Action (NRA-ILA), Chris W. Cox, today issued the following statement in response to political maneuvering in the United States Senate that prevented the passage of legislation to prohibit terrorists from obtaining firearms:

“Today, the American people witnessed an embarrassing display in the United States Senate. President Obama and his allies proved they are more interested in playing politics than addressing their failure to keep Americans safe from the threat of radical Islamic terrorism.

“We all agree that terrorists should not be allowed to purchase or possess firearms. We should all agree that law-abiding Americans who are wrongly put on a secret government list should not be denied their constitutional right to due process. These are not mutually exclusive ideas. It is shocking that the safety of the American people is taking a backseat to political theatre.

“We thank the majority of the senators for rejecting the gun control proposals of Senators Feinstein and Murphy. We applaud Senators Cornyn and Grassley for securing majorities for their common-sense proposals. We look forward to working with those interested in real solutions to keep the American people safe, including their right to defend themselves in the face of government failure."

- Click here for their Grades and Endorsements.

From Politico: Democrats mount gun control filibuster

A procedure we will cover later the semester.

- Click here for the story.

Sen. Chris Murphy (D-Conn.) launched a talking filibuster on the Senate floor — which was quickly joined by fellow Democrats — in an effort to pressure Republicans to accept legislation that would deny suspected terrorists from purchasing firearms and require universal background checks.

The Senate is debating a spending bill that Democrats hope to offer gun amendments to, but Murphy said that the Senate should “not proceed with debate on amendments to this bill until we have figured out a way to come together on, at the very least, two simple ideas.”

“I’m going to remain on this floor until we get some signal, some sign that we can come together on these two measures, that we can get a path forward on addressing this epidemic in a meaningful, bipartisan way,” Murphy continued on the Senate floor on Wednesday, after he first started his filibuster at about 11:20 a.m.

Most of the Democratic caucus was unaware of Murphy's plans until he took the floor, two senior aides said, though there had been some talk Tuesday about lining up speeches throughout the night Wednesday.

At the same time, Sens. John Cornyn (R-Texas) and Dianne Feinstein (D-Calif.) are exploring whether there is common ground on a deal to prevent suspected terrorists from buying firearms. Currently, the two parties are backing very different approaches to resolving instances where someone feels they've been wrongly put on a watch list and therefore cannot purchase a gun.

For more:

- Wikipedia: Filibuster.
- Wikipedia: Filibuster in the U.S. Senate.

Full Faith and Credit and Handgun Laws

A question was raised in class about why the full faith and credit clause applies to marriage licenses and other public records and laws, but not - currently anyway - to gun laws, especially concealed and open carry rules. I really don't know as of yet, but here are a few readings that might help us figure this out.

- Jurist: Survey of State Open and Concealed Carry Laws.
- Gun Debate: Concealed Carry Reciprocity and the Constitution.
- Volokh Conspiracy: Full Faith and Credit, Pardons, and Gun Rights.
- The Fiscal Times: A New Gun Law Pits Virginia Against the Constitution.

From the NYT: Orlando Shooting Reignites Gun Control Debate in Congress

It was a classic example of an agenda setting event. Now comes the debate over the legislative response - assuming there is one.

- click here for the article.

The Orlando, Fla., massacre reignited on Monday the debate over whether Americans like Omar Mateen who have been named on the government’s terrorist watch lists, or have been otherwise suspected by the authorities of ties to terrorist groups, should be allowed to purchase a gun. In Congress, even some supporters of gun rights seemed to be having second thoughts.

Six months after Republicans in Congress defeated a measure that would have closed the so-called terror gap after the San Bernardino, Calif., attack, Senate Democrats moved swiftly on Monday to restart the debate over tightening federal gun laws.

As a first step, the Democrats demanded that Republicans take up legislation aimed at banning the sale of guns or explosives to people who have appeared on watch lists, or who have been suspected by the Justice Department of ties to terrorist organizations.

“In the wake of Orlando, we need to think about what kind of country and Senate we want to be,” Senator Chuck Schumer of New York, a Democrat, said in a conference call with reporters. “Are we going to take the painfully obvious common-sense steps so that terrorists can’t get guns, or are we going to bow down to the N.R.A.?” he asked, referring to the National Rifle Association.

Mr. Schumer and other Democrats insisted that the legislation that failed in December could have prevented Mr. Mateen, identified as the Orlando gunman, from buying the weapons used in the attack. “We are now living with the consequences of that vote,” Mr. Schumer said. “How many more people have to die at the hands of a terrorist with a gun before the Senate acts?”

Just one Republican, Senator Mark S. Kirk of Illinois, voted in favor of the legislation in December, but Democrats said on Monday they believed that Republicans would come under new pressure. Indeed, there were signs that some Republicans might be reconsidering.

Just for kicks:

- From procon.org: Should More Gun Control Laws Be Enacted?

The Texas Tribune: UT-Austin Issues Campus Carry Rules Barring Guns From Dorms

Let's see if there is push back from this - a Second Amendment lawsuit perhaps?

- Click here for the article.

Save for some narrow exceptions, guns will be allowed in classrooms but not in dorms at the University of Texas at Austin next school year under guidelines reluctantly issued by university President Greg Fenves on Wednesday.

Fenves submitted the rules to comply with the state's new campus carry law, which goes into effect Aug. 1. The law, Senate Bill 11, allows the concealed carrying of weapons in public university buildings by license holders across the state. But it gave universities the power to create limited rules that designate some "gun-free zones" in areas where it would be too dangerous to have weapons. Those zones must be limited in scope, however, and can't have the effect of making it practically impossible to carry a gun anywhere on campus. 

. . . Fenves' rules will ban guns in dorms except for three specific exceptions: Concealed handguns will be allowed in dorms' common areas; people who work in the dorms will be able to carry and family members visiting the dorms will also be allowed to carry.

While no classroom ban will be imposed, faculty members who don't share an office with anyone else can ban guns in their specific areas, Fenves said.

He also issued strict rules for how those guns can be carried. In most cases, students and other people carrying guns must keep the weapons "on or about their person" at all times. If people aren't carrying their guns, they'll have to keep them in their locked cars. Gun safes will only be allowed in one place — university apartments, which are mostly reserved for families and graduate students.

All guns that are being carried will have to be kept in a holster that protects the trigger. The gun can't have a bullet in its chamber. And it can't be visible; the state's new open carry law doesn't apply to college campuses.

From Slate: Are Assault Weapons Protected by the Second Amendment?

As of yet, the only weapon the Supreme Court has decided falls under the protection of the Second Amendment is a handgun, and only in homes. This is based on the argument that a broad interpretation of the amendment includes the right of self-defense - which is not mentioned in the amendment, but was commonly argued at the time of its ratification to be a reason why arms can be kept and borne.

Cases are winding their ways to the court which will allow them to rule whether protection applies not only to handguns, but to assault weapons as well. The author mentions some of these cases - including one that the Supreme Court decided to not hear in December - four justices chose not to hear the case. Another - Kolbe v Hogan - might be accepted though. It involves a ban on assault weapons passed by the state of Maryland following the Sandy Hook shooting. The lawsuit was filed by a variety of groups and a couple citizens who argue the Second Amendment should apply to assault weapons.

Specifically they are arguing - as I understand it - that limits on weapons should be subject to strict scrutiny rather than intermediate scrutiny. This is more difficult test to pass, which makes it more likely that limits on guns will be found constitutional.

- Click here for Kolbe v Hogan.

For grins - here's the list of plaintiffs. It's taken from the case.

- STEPHEN V. KOLBE
- ANDREW C. TURNER
- WINK'S SPORTING GOODS, INCORPORATED
- ATLANTIC GUNS, INCORPORATED
- ASSOCIATED GUN CLUBS OF BALTIMORE, INCORPORATED
- MARYLAND SHALL ISSUE, INCORPORATED
- MARYLAND STATE RIFLE AND PISTOL ASSOCIATION, INCORPORATED
- NATIONAL SHOOTING SPORTS FOUNDATION, INCORPORATED
- MARYLAND LICENSED FIREARMS DEALERS ASSOCIATION, INCORPORATED

- Click here for the article in Slate.

In December the Supreme Court declined to hear a case challenging a Chicago suburb’s ban on selling and owning assault weapons. Two justices—Clarence Thomas joined by Antonin Scalia—offered up a bitter dissent when the court refused to weigh in. But the high court, which hasn’t heard a major gun case since 2010, nevertheless let stand a lower court’s ruling that the 2013 ban, adopted in Highland Park, Illinois, did not violate the Second Amendment or the court’s recent jurisprudence interpreting

On Thursday, a three-judge panel of the 4th U.S. Circuit Court of Appeals, in a case called Kolbe v. Hogan, sent the state of Maryland’s ban on assault weapons back to a federal trial court for a second, more scrupulous review. In a 2–1 decision, the majority of the appellate panel found that the semi-automatic weapons and high-capacity magazines banned under a new Maryland law “are in common use by law-abiding citizens” and cannot be banned under the Second Amendment. The ruling sets the wheels in motion for another major gun fight at the high court.

. . . Maryland’s Firearm Safety Act was passed along with a raft of similar gun control measures in other states in the wake of the Sandy Hook Elementary massacre in December 2012. Twenty children and six adult staff members were killed in that massacre by a gunman using three semi-automatic firearms. Among other things, the Maryland statute banned possession of firearms designated as “assault weapons,” including AR-15s and AK-47s. Maryland also banned sales and purchases of ammunition magazines of more than 10 rounds. A District court in Maryland upheld the ban.

That ban and similar ones have been surviving in federal courts because they have been subject to intermediate scrutiny—a constitutional test that often turns on whether the government has a reasonable purpose for a gun law. Public safety is often sufficient to satisfy that standard. The 4th Circuit, in demanding that the lower court look at the Maryland law again under strict scrutiny—a standard that makes it very difficult to salvage a law—sets up the potential for a new high court showdown.

From the Houston Chronicle: Local governments under fire for gun bans

File this one under policy implementation. It also fits under a general discussion of the relationship between state and local governments, in addition to the role of the Texas Attorney General in adjudicating disputes. The struggle over where someone can and cannot openly carry a handgun continues.

- Click here for the article.

Senate Bill 273, which went into effect Sept. 1, allows anyone to file a complaint with the attorney general's office if he believes a state agency or political subdivision is improperly posting the signs where guns are allowed.

Under the law, the complainant first must send a written complaint to the entity. If three days go by without a response, he can file a complaint with Paxton's office. The attorney general then investigates the allegation - which must include proof of the improper signage and lack of local response - and forwards it to the appropriate division if further action needs to be taken.

Governmental entities found in violation of the law have 15 days to remedy the situation; if they do not, Paxton's office can sue, seeking penalties of up to $1,500 for the first day and $10,500 for each subsequent day they are deemed non-compliant. The new law applies only to signs that bar gun owners with a license to carry, or LTC, "from entering or remaining on a premises or other place owned or leased by the governmental entity." As of Jan. 1, those with an LTC are allowed to carry their handguns openly in a shoulder or hip holster.

The complaints received by Paxton's office since Sept. 1 target a variety of entities, from the Deer Park Community Center to the Dallas Zoo.

Nearly a quarter of the complaints were filed against city halls and other government complexes where signs were posted telling Texans they could not carry handguns anywhere in their buildings. Six were filed against local governmental entities that want to ban guns in their entire courthouse or judicial complexes, and three were lodged against county appraisal districts or tax offices.

From Bloomberg: Obama's Gun Control Initiative Challenged in Federal Lawsuit

We discussed in class whether the expansion of background checks for gun buyers - and more specifically the requirement that gun sellers perform the checks - may or may not be constitutional. We don't really know because the court has never ruled on a such a case.

But now they may have the chance.

To be on the safe side - in case the Second Amendment argument fails - a second argument is being presented, that president did not follow the appropriate federal rule making process.

- Click here for the article.

U.S. President Barack Obama’s expansion of background checks for would-be gun buyers is being challenged in a lawsuit by a political activist who claims the changes violate the Constitution and the federal rule-making process.

Stymied by congress in prior attempts to enact gun-control legislation following mass shootings, the president on Jan. 5 announced a new interpretation of already-existing rules defining who is a firearms dealer. The new definition would subject more transactions -- including sales at gun shows and on the Internet -- to background checks, preventing sales to people deemed to be a danger to themselves or others.

Those measures and others were unveiled by Obama in a sometimes tearful televised speech that drew immediate criticism from gun-rights supporters.

“It is clearly arbitrary and capricious for the defendants, each and every one of them, to now suddenly adopt and implement a new and different interpretation for no other reason than the political preferences of temporary occupants of elected office,” attorney Larry Klayman said in a complaint filed at the U.S. court in West Palm Beach, Florida.

Klayman, the founder of the political watchdog group Freedom Watch, claims the background-check initiative violates the constitution’s Second Amendment, which the U.S. Supreme Court has said guarantees an individual’s right to bear arms for self-defense.Rule Making

Even if constitutional, the redefinition circumvented the federal rule-making process, he said. Klayman, who said he’s a Florida resident and the owner of two 9-millimeter handguns and one .45 caliber weapon, is seeking a court order blocking the executive action and declaring the measures unlawful.

A few major court cases related to the Second Amendment

Attention DHS dual credit students - we will walk through these cases, and the laws they challenge, at some point in class as a way to see how the interpretation of the Constitution can change over time.

This list is hardly comprehensive, but its intended to help students get an idea about how the court has interpreted and reinterpreted Second Amendment rights - as well as issues indirectly related to them - over history. I pulled these from various sources, but the Wikipedia page on firearms case law is especially useful.

- Click here for it.

Here are brief summaries:

- United States v. Cruikshank. (1875) This case was primarily about the applicability of the Bill of Rights to the states. See: the Colfax Massacre and the Enforcement Act of 1870. Prior to the 14th Amendment, it only limited the national government. The text of the amendment suggested that the now citizens of the national government are protected from the actions of their state governments as well. The Supreme Court disagreed. It could not protect the nationally defined Second Amendment rights of African-Americans from actions of the states or private citizens. If they wanted to restrict constitutionally defined rights, they could.

- Presser v. Illinois (1886) The Supreme Court upheld an Illinois law limiting the ability of individuals to form their own militias, and to parade and drill with arms did not violate the national Second Amendment. They considered the Second Amendment to be an individual right. This allowed for the limitation for individual militias.

- United States v Miller. (1939) This was a constitutional challenge to the National Firearms Act of 1934. The law required the registration of certain types of guns, as well as the payment of a tax. This was implemented by the IRS. The court ruled that the law was constitutional for a variety of reasons, most importantly because the guns affected were not used in militias and were not protected by the Second Amendment. Only military type weapons were protected.

- DC v Heller. (2006) This challenged the Firearms Control Regulations Act of 1975 and placed limits on the ability of residents to own and posses handguns - among other weapons - in their homes. Guns in the homes also had to be disassembled - or otherwise unusable. A five person majority ruled that this violated an implicit right to self defense, and that guns not traditionally used in militias could fall under Second Amendment protection. The dissent argued - among other things - that it was reasonable for local government to want to limit the availability of guns as a way of preventing crime.

- McDonald v. Chicago (2010) The Heller case only applied to the national government since DC is under the jurisdiction of Congress. McDonald was a challenge to a similar ordinance and by virtue of the same argument - that there was and implicit right to self defense in the Second Amendment, and it applied to the state and local government through the 14th Amendment.

Libertarianism and the Second Amendment.

I'll try wrapping this up in a written assignment of some sort. Libertarians seem conflicted over how to best secure gun rights. They like the Second Amendment, but its in the national constitution. They're uneasy about using the power of the national government to limit state and local power. But, perhaps that's necessary.

From the Hoover Institution: The Libertarian Gun Fallacy.
From Reason.com: Libertarians, Guns, and Federalism.
From the Yale Law Journal:
- Firearm Localism.
- Why Firearm Federalism Beats Firearm Localism.

The first national gun control act: the National Firearms Act of 1934

As far as I can tell - not an expert on this - the statutory authority for the president's executive actions on background checks stems from this law, as well as its follow up in 1938. The 1934 law places a tax - an excise tax - on the sale of machine guns and sawed off shotguns, meaning both were still legal. This was during a time when Congress was expanding - and the Supreme Court was accepting - the idea that the tax and spending clause of the Constitution allowed taxes to be used to as a regulatory device, not just to collect revenue for predefined purposes.

Since it was a tax bill, it was originally part of the Internal Revenue Code.

The 1934 law also required all sales to be recorded in a national registry. The 1938 act expanded the law to require the licensing of interstate gun dealers, mandated that they record their sales, and prohibited sales of guns to to people convicted or indicted of committing violent crimes. Later laws modify these requirements - as do the recent executive actions - but this seem to be the basis of statutory authority.

Why did it take until 1934 for the national government to get into the business of regulating guns? Prior to this time, regulation was a fully state affair, but the availability of cars and better roads made it easier for criminals to evade states. This explains the expansion of the federal government into criminal law in general.

Here's a bit more on the original act:

- The 1934 National Firearms Act, and why it is obsolete.
- Franklin Roosevelt: The Father of Gun Control.
- Fully-Automatic Firearms.
- Full text of the law.
- 26 U.S. Code § 5845.

From the White House: FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer

I've yet to find confirmation, but what the president announced yesterday were executive actions that will form the basis of a series of executive orders. The White House posted the following fact sheet detailing their specific plans:

- Click here.

This is in addition to the following: Live Updates: What the President is Doing to Keep Guns Out of the Wrong Hands.

Here's my attempt to summarize the various proposals.

1 - Firearms sellers must have a federal license and must conduct background checks. The Bureaus of Alcohol, Tobacco, Forearms and Explosives is establishing the rules containing these requirements. Click here for the ATF's rulemaking page. The FBI is improving the background check system so that it works 24/7. Additional staff is to be hired to process these checks.

2 - 200 new ATF agents will be hired to help enforce gun laws. The next budget submitted by the president will request funds for the new personnel. An Internet Investigation Center (not on line yet as I can tell) has been established to track illegal online firearms trafficking, and more people have been hired for the National Integrated Ballistics Information Center.

3 - Half a billion dollars will be requested to expand access to mental health care. The Social Security Administration will issue a rule that will allow (as I interpret it) information it possesses regarding mental health for purposes of background checks. Also, the Department of Homeland Security will issue a rule that will (again as I interpret it) remove legal restrictions on states sharing information about the mental health of interested gun buyers with other states. Click here for the rule making process for SSA, and click here for the rule making process for DHS.

4 -  Three separate executive departments have been directed to "conduct or sponsor research into gun safety technology." These are the Departments of Defense, Justice, and Homeland Security.

If you are keeping count, 8 separate institutions are involved in implementing these actions. And this is just a summary. The fact sheet goes more in depth.

Key Congressional Acts Related to Firearms

In light of the president's announcement today regarding the implementation of gun laws, here are two useful source of summaries of gun laws.

- NRA: Citizen's Guide To Federal Firearms Laws - Summary.
- Law Center to Prevent Gun Violence: Key Congressional Acts Related to Firearms.

Here's the list:

- The National Firearms Act of 1934
- The Federal Firearms Act of 1938
- The Gun Control Act of 1968
- The Firearms Owners’ Protection Act of 1986
- The Brady Handgun Violence Prevention Act of 1993
- Public Safety and Recreational Firearms Use Protection Act
- The Protection of Lawful Commerce in Arms Act and Child Safety Lock Act of 2005
- National Instant Criminal Background Check System (“NICS”) Improvement Amendments Act of 2007