Jackson v. SF (Ammo Ban; Locked Storage Reqts.): Cert DENIED 6/8/15

[kcbrown]

I've been asked to comment here. As such, I will do so.

Firstly, the hypothesis I'm going under as regards SCOTUS says they will deny cert to this case, because they have been denying cert to all 2A cases. I will say that this case, because of the subject matter, looks to be a litmus test of that. If they deny cert here, then that'll be pretty much conclusive evidence, IMO, that they really are done with the 2nd Amendment. If they grant cert then, of course, I will (very happily) toss my SCOTUS hypothesis out the window.

SCOTUS rarely seems to say why they deny cert (indeed, have they ever? That's a serious question, by the way -- I'd really like to know), so I wouldn't expect them to make an exception for this case.

Secondly, I fully expect SCOTUS to overturn the 9th Circuit's decision on this if they do take it. Failure on their part to overturn after taking it will make a mockery of Heller, as the law does not, that I know of, make any exception for someone who is sleeping, and someone who is sleeping clearly cannot be carrying the firearm while they're sleeping (unless they're sleepwalking. Let's not go there, okay? ).

[kcbrown]

You're absolutely right, what Heller was talking about was "rendering any lawful firearm in the home operable for the purpose of immediate self-defense" and more particularly, rendering the firearm operable for the purpose of immediate self-defense from a locked or disassembled condition. That was the only self-defense exception to the trigger lock law under consideration, and the illustrations before the court of that self-defense exception were:



and


"Immediate self-defense" isn't having an unlocked, assembled handgun sitting on the dresser while you're lying on your bed in your PJ's watching Netflix, or in a holster down around your ankles while you're taking a crap, or carrying it around the house just in case. "Immediate self-defense" is defending yourself against a specific threat that's happening right now. The DC law did not allow the unlocking or disassembly of the handgun in order to do that so "hence" it was unconstitutional.

"Immediate self-defense" may be that, but operable for the purpose of immediate self-defense (which is what you actually said) is not. Being operable for the purpose of immediate self-defense means meeting whatever prerequisites are necessary to make immediate self-defense possible with the handgun, which includes actually getting it in your hands (a handgun is not "operable" if you cannot operate it despite being capable of doing so, and you cannot operate it if it is not in your hands. Were this not the case, laws which forbid you from retrieving your weapon that is otherwise in an operable state would be "Constitutional" under Heller). And that means not having any artificially-imposed delays in retrieving the handgun and getting it configured so that it is ready for immediate self-defense.

Your argument amounts to the proposition that it is "Constitutional" (consistent with Heller) for a law to require that someone store their "operable" firearm in a safe that only the police have the combination to, and that they call the police to get the combination in order to retrieve the "operable" firearm. It is a vacuous argument, one which utterly ignores the very purpose of protecting the right to arms: preservation of life and limb in situations where either are gravely threatened.

[FABIO GETS GOOSED!!!]

"Immediate self-defense" may be that, but operable for the purpose of immediate self-defense (which is what you actually said) is not.

Maybe you should have written the cert petition since you're leaving out the rendering part too lol. The SC is the one who said "rendering operable...immediate self-defense" first.

And that means not having any artificially-imposed delays in retrieving the handgun and getting it configured so that it is ready for immediate self-defense.

That is what is yet to be decided, isnt' it? Maybe someone will file an "any gun law that prevents me from carrying my handgun in my hands will I go grocery shopping is unconstitutional because it is an artificial delay to have to carry it in a holster then draw it under stress." If you were the judge that would be a winning lawsuit. Like the Heller plaintiffs said, a "reasonable limitation" like storing your gun in a safe and retrieving it when you need it is ok...whoops, need to stop myself from making pro and con arguements and stick to what was and was not decided in Heller!

[FABIO GETS GOOSED!!!]

Heller already affirmed: 1) Self-defense is the core right. 2) any trigger lock law that prohibits you from rendering your handgun operable or the purpose of immediate self-defense i.e. does not have a self-defense exception is therefore unconstitutional.

You're jumping the gun a little so I fixed your post.

A trigger lock law with a self-defense exception makes no sense. Of course, that's why the Heller opinion cited the lack of a self-defense exception (handgun must be locked at all times and may not be rendered operable for the purpose of immediate self-defense) as the reason why DC's trigger lock law was unconstitutional. When you have such a careful writer/linguist like Scalia it's much more direct and precise to do it that way instead of just saying "no self-defense exception is going to help the trigger law because self-defense exceptions make no sense!" Going through the irrelevant exercise of deciding whether DC's trigger lock law did or did not have the self-defense exception that DC was arguing it did (e.g., you can unlock your handgun if there is a sudden intruder) is basically the same thing as saying "we think self-defense exceptions make no sense," right? I think you've convinced me!

[Oger2]

I've been asked to comment here. As such, I will do so.

Firstly, the hypothesis I'm going under as regards SCOTUS says they will deny cert to this case, because they have been denying cert to all 2A cases. I will say that this case, because of the subject matter, looks to be a litmus test of that. If they deny cert here, then that'll be pretty much conclusive evidence, IMO, that they really are done with the 2nd Amendment. If they grant cert then, of course, I will (very happily) toss my SCOTUS hypothesis out the window.

SCOTUS rarely seems to say why they deny cert (indeed, have they ever? That's a serious question, by the way -- I'd really like to know), so I wouldn't expect them to make an exception for this case.

Secondly, I fully expect SCOTUS to overturn the 9th Circuit's decision on this if they do take it. Failure on their part to overturn after taking it will make a mockery of Heller, as the law does not, that I know of, make any exception for someone who is sleeping, and someone who is sleeping clearly cannot be carrying the firearm while they're sleeping (unless they're sleepwalking. Let's not go there, okay? ).

Is that poster the President of the KC Brown fan club too?

[lowimpactuser]

"Immediate self-defense" may be that, but operable for the purpose of immediate self-defense (which is what you actually said) is not. Being operable for the purpose of immediate self-defense means meeting whatever prerequisites are necessary to make immediate self-defense possible with the handgun, which includes actually getting it in your hands (a handgun is not "operable" if you cannot operate it despite being capable of doing so, and you cannot operate it if it is not in your hands. Were this not the case, laws which forbid you from retrieving your weapon that is otherwise in an operable state would be "Constitutional" under Heller). And that means not having any artificially-imposed delays in retrieving the handgun and getting it configured so that it is ready for immediate self-defense.

Your argument amounts to the proposition that it is "Constitutional" (consistent with Heller) for a law to require that someone store their "operable" firearm in a safe that only the police have the combination to, and that they call the police to get the combination in order to retrieve the "operable" firearm. It is a vacuous argument, one which utterly ignores the very purpose of protecting the right to arms: preservation of life and limb in situations where either are gravely threatened.

Thanks for the comment! A LOT of people here will scream bloody murder that you're being selective on cases you comment on, that your hypothesis and such is cherry-picking, you're a no good dirty statist, you're destroying America, whatever. I think you've certainly got a good mind for playing this guessing game (and you do seem to have the time ) so I thought rather than you waiting for people to write something interesting in the Peruta thread you should post on another thread. Now, no one can accuse you of denying any opportunity to test your hypothesis; and as in many things, I HOPE YOU'RE WRONG, just as I'm sure you do as well.

Now instead of waiting for the next seed group of corn, tilling the field, planting, watering and caring, and then harvesting, we can both pick up a bunch of popcorn now and wait for the SCOTUS decision on cert.

[ArchangelZeroSix]

You're jumping the gun a little so I fixed your post.

If by 'fixed' you mean skipping half of my post, I'll grant you that.

Of course, that's why the Heller opinion cited the lack of a self-defense exception (handgun must be locked at all times and may not be rendered operable for the purpose of immediate self-defense) as the reason why DC's trigger lock law was unconstitutional.

Where in Heller does the Opinion state that a trigger-lock law with a self defense exception is constitutional?

Your entire argument is based on the false premise that 'because SCOTUS didn't explicitly say a gun storage requirement is unconstitutional, that means it isn't'. This is akin to the anti argument of 'the Second Amendment doesn't cover modern firearms because the founders only had muskets'.

Its an extremely narrow reading of the Opinion, much the same that the latter argument is a narrow interpretation of the Second Amendment. Your cherry picking of one phrase in Heller again ignores what the historical analysis set out to affirm, that the Second Amendment is an individual right and the core of that right is self-defense. When discussing the issue of law, the Court made it clear that D.C.'s law was unconstitutional because it prohibited a person from 'immediately' defending one's 'home and family' and ensuring an 'operable' firearm is 'readily accessible'.

[lowimpactuser]

Now that we've got the KC weigh in, I want to stir the pot further.

Can anyone come up with a theory that's substantively DIFFERENT than KC's if SCOTUS denies cert?

Many, many people talk about what will happen, but few actually put up theories, and actually make predictions that can be proven right or wrong.

So, would any of the longer term people care to say if cert is DENIED, how KC is still wrong? I'm not saying he's right, but now that we have basically the perfect case to test his prediction SCOTUS is DONE with the 2nd, and abandoning Heller, and we'll get a relatively quick decision on the matter, I'd like any and all heavyweights to weigh in. Fabio, TinCon, Calguns staff, Crom, and a bunch I'm forgetting; but would LOVE to hear ALTERNATE ideas for WHY cert would be denied.

Otherwise, everyone WILL believe KCbrown is correct, at least on some level, before they spin the decision post-hoc into something that allows them to keep their Panglossian worldview. I'm tired of seeing post-hoc reasoning and such, except from people that must keep mum (i.e., Michel and Associates- thanks for being awesome, btw)

[Drivedabizness]

I did, and it struck me as wrong, so I (mistakenly, it seems) thought there must be more information I didn't have. I think it's clear SCOTUS and the petition are in complete agreement.

To subscribe to your interpretation of the intention of "render" in that phrase I would have to conclude Scalia is inept in the use of the English language (which he is not, imo).
To choose the term "immediate" when (according to you) his intention was to convey that the Constitution provides that the legislature may mandate delays in access to self-defense weapons in an emergency makes no sense whatsoever. There is, imo, no worse term he could possibly have chosen under your interpretation, and even omission would have been clearer.

Your interpretation strikes me as wildly pedantic and irresponsible, although many legal interpretations strike me that way, so you may well be right.

On a bit of a tangent, are there are similar delays that are Constitutionally supported? Someone is about to die, and the Constitution says it's OK for them to die if they can't jump through hoops in time?

For example, would a law be Constitutional which declared that an ER doctor can delay / deny access to care to a person who, in the judgement of the doctor, has only seconds to live unless he receives that care?

"No, do not give that patient oxygen until he fills out his forms in triplicate. And her, don't try to get her heart beating again, there's an error on one of her forms. I don't care if he has no hands of if she is unconscious, the law requires it!"

Unfortunately, Scalia IS inept in his use of language.

If not, we would not still be going through all of the lawsuits against the most egregious existing and new laws that continue to be passed.

Scalia went to great lengths to include the (I'm paraphrasing) presumably lawful, longstanding restrictions & regulations language. The anti's continue to point to that language as the justification for every measure they promote. He ignored the fact that at both the Federal and State & local level, there are a plethora of blatantly unconstitutional provisions on the books - and more coming.

A little more precise language might have gone a long way and would not have been inappropriate given the 2A finally being identified as an enumerated individual right in the modern era.

[FABIO GETS GOOSED!!!]

Where in Heller does the Opinion state that a trigger-lock law with a self defense exception is constitutional?

It doesn't, duh! (although it kind of implies it when it expressly says that DC's law was unconstitutional because it didn't have one lol). It doesn't say that trigger-lock laws with self-defense exceptions are unconstitutional, either. You know why? This legal issue hasn't been decided yet!

Your entire argument...

Which argument are you talking about? The argument that the SC hasn't yet decided whether trigger lock laws with no self-defense exception are unconstitutional?

Your cherry picking of one phrase in Heller again ignores what the historical analysis set out to affirm, that the Second Amendment is an individual right and the core of that right is self-defense.

Sorry for "cherry picking" the specific phrase in the opinion where the SC explains why it was ruling the trigger lock law unconstitutional lol.

When discussing the issue of law, the Court made it clear that D.C.'s law was unconstitutional because it prohibited a person from "immediately' defending one's 'home and family' and ensuring an 'operable' firearm is 'readily accessible'.

I'm not sure I can even call that "cherry picking," it looks more like the cert petition which leaves important stuff out, like, the complete phrase that explains specifically why the court ruled against the trigger-lock law. Just for fun, let's have another look at "It is easier to store in a location that is readily accessible in an emergency." "Store" means "to put (something that is not being used) in a place where it is available, where it can be kept safely, etc." That's from Merriam Webster. "Kept safely," hmmm. Let's ignore whatever arguments there might be that a handgun sitting out in the open on your dresser arm's length away isn't really "kept safely." Go ahead and assume that "kept safely" doesn't mean "locked up" somewhere, you know, like "safe storage, for example, in a safe." (I know, more cherry picking, this time it's stuff that was actually argued by Heller's attorney in open court.) Just don't even think about "safe keeping" at all. So, moving along, where exactly is this "location that is readily accessible in an emergency" where the handgun will be "stored"? Does "in a location that is readily accessible" mean "in the house"? "in the bedroom"? Somewhere else?

[ArchangelZeroSix]

Unfortunately, Scalia IS inept in his use of language.

If not, we would not still be going through all of the lawsuits against the most egregious existing and new laws that continue to be passed.

Scalia went to great lengths to include the (I'm paraphrasing) presumably lawful, longstanding restrictions & regulations language. The anti's continue to point to that language as the justification for every measure they promote. He ignored the fact that at both the Federal and State & local level, there are a plethora of blatantly unconstitutional provisions on the books - and more coming.

A little more precise language might have gone a long way and would not have been inappropriate given the 2A finally being identified as an enumerated individual right in the modern era.

The anti's argument though is lacking. They conveniently skip what was written right before the 'long standing prohibitions' portion of the Opinion.

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

My emphasis added. The Court examined what was before them. Does the Second Amendment protect an individual's right to 'keep and bear' a firearm? Is this right unconnected with service in the militia? What is the core right? And does D.C.'s law violate this right?

It is always my argument that if Heller were to have broadly struck down things not within the scope of the case, it would have smacked of judicial activism (even though I'm constantly told by the anti's that Scalia 'rewrote' the Constitution).

Heller should IMO, be viewed as a foundation on which to strike down further infringements.

[FABIO GETS GOOSED!!!]

(I probably shouldn't point out that the Heller plaintiffs argued "the right to keep and bear arms implies the right to keep and bear arms in such conditions that they are readily accessible to be used effectively when necessary" at the same time that they were arguing "However, better [sic] safe storage approach is the one used by the majority of jurisdictions, I believe, that do have such laws, which is to require safe storage, for example, in a safe. And that is a reasonable limitation. It's a strict scrutiny limitation. Whatever standard of view we may wish to apply, I think, would encompass a safe storage provision." That would be unfair cherry picking if I did that and besides, maybe the Heller plaintiffs didn't realize that "readily accessible" is inconsistent with "safe storage, for example, in a safe" lol.)

[ArchangelZeroSix]

It doesn't, duh! (although it kind of implies it when it expressly says that DC's law was unconstitutional because it didn't have one lol). It doesn't say that trigger-lock laws with self-defense exceptions are unconstitutional, either. You know why? This legal issue hasn't been decided yet!

The legal issue has been decided. It's in Heller and has been pointed out to you. Read KC's far more eloquent break down of the important words again.

Which argument are you talking about? The argument that the SC hasn't yet decided whether trigger lock laws with no self-defense exception are unconstitutional?

The one you are making.

Sorry for "cherry picking" the specific phrase in the opinion where the SC explains why it was ruling the trigger lock law unconstitutional lol.

Opinion not based in reality—it again ignores the holding of what the 2A right is and why D.C.'s laws violated it. Might as well just pick out the 'not unlimited' part and make that the focal point if we're cherry picking.

"It is easier to store in a location that is readily accessible in an emergency." "Store" means "to put (something that is not being used) in a place where it is available, where it can be kept safely, etc." That's from Merriam Webster. "Kept safely," hmmm. Let's ignore whatever arguments there might be that a handgun sitting out in the open on your dresser arm's length away isn't really "kept safely.

You are again ignoring 'readily accessible'. How do you know a firearm—in whichever location and in whichever manner I so choose—isn't being 'kept safely' just because it isn't locked?

Go ahead and assume that "kept safely" doesn't mean "locked up" somewhere, you know, like "safe storage, for example, in a safe." (I know, more cherry picking, this time it's stuff that was actually argued by Heller's attorney in open court.)

An argument which shows up nowhere in the holding of Heller. Irrelevant.

Just don't even think about storage and "safe keeping" at all. So, moving along, where exactly is this "location that is readily accessible in an emergency"? Does "in a location that is readily accessible" mean "in the house"? "in the bedroom"? Somewhere else?

In a location that allows me without delay (readily) to access my firearm, to 'immediately' defend my 'home and family'. It's pretty simple.

[kcbrown]

Maybe you should have written the cert petition since you're leaving out the rendering part too lol. The SC is the one who said "rendering operable...immediate self-defense" first.

The Court said that in the holding ("In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."). It did not say only that in the reasoning behind the holding. And as the reasoning is jurisprudential as well as the holding, it follows that one can use that reasoning to derive new positions and be consistent with Heller.

Part of that reasoning is:

There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

(emphasis mine)

But yes, the Court also dealt with the disassembly/trigger lock requirement more directly, noting that it did not have a self-defense exception despite what DC tried to argue.


It may be possible to read Heller as narrowly as you are, but if so, that would render void the purpose of the 2nd Amendment's protection that was stated in Heller: immediate self-defense. It would make Heller a completely empty victory, for a handgun that is ready for use is of no use at all if it is inaccessible, and you are arguing that Heller allows for that, that it stands only for the proposition that the gun not be required to be configured to be inoperable.

That is what is yet to be decided, isnt' it?

Yes, and maybe even by this case, at that.

[Drivedabizness]

I completely stand by my earlier statement.

Yes, the Court can only decide the matter(s) before it. But having clearly established the fundamental, enumerated, individual right, to turn around and insert needless language about issues NOT before the Court (no one is arguing 2A rights for un-rehabilitated felons, or for those adjudicated mentally ill) Scalia's language went far beyond.

Hence the ongoing mischief on the definition of sensitive places, common use and the justification of some of the most onerous regulations just because they've been in place for a while.

The ongoing refusal to grant cert merely sows confusion and encourages those that would abridge our rights. That's not the purpose of the Court.