Tag Archive: 2nd amendment


By Edmund DeMarche

November 14, 2014

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Buffalo police confiscated nine illegal handguns in connection with a gun trafficking operation that stretched from the Decatur, Georgia area to Buffalo. The city has been focused on reducing the number of illegal guns on the street. (Buffalo Police Department)

A plan by police in Buffalo, N.Y., to begin confiscating the firearms of legal gun owners within days of their deaths is drawing fire from Second Amendment advocates.

The plan is legal under a longstanding, but rarely enforced state law, but gun rights advocates say, with apologies to onetime NRA spokesman Charlton Heston, it is tantamount to prying firearms – some of which may have substantial monetary or sentimental value – from the cold, dead hands of law-abiding citizens.

“They’re quick to say they’re going to take the guns,” said Tom King, president of the New York State Rifle & Pistol Association. “But they don’t tell you the law doesn’t apply to long guns, or that these families can sell [their loved one’s] pistol or apply to keep it.”

King said enforcing the state law is the latest example of authorities targeting law-abiding gun owners, while doing little to secure the streets.

“They’re quick to say they’re going to take the guns.”- Tom King, president of the New York State Rifle & Pistol Association

Buffalo Police Commissioner Daniel Derrenda said at a press conference last week that the department will be sending people to collect guns that belong to pistol permit holders who had died so “they don’t end up in the wrong hands.” The department will cross reference pistol permit holders with death records and the guns will be collected when possible, he said.

Derrenda said guns pose a threat if their owner is no longer alive to safeguard them, especially if a recently-deceased gun owner’s home is burglarized.

“At times they lay out there and the family is not aware of them and they end up just out on the street,” he said, according to WGRZ.com.

The state law says that if the permit holder dies, the estate has 15 days to dispose of the guns or turn them in to authorities, who can hold the weapons up to two years. LoHud.com reported that violation of the law by survivors is a misdemeanor punishable by up to a year in jail and a fine.

Pro-gun websites took Derrenda’s comments as an affront to the Second Amendment, with BearingArms.com claiming authorities could “use the relative’s pistol permit as the proverbial camel’s nose under the tent to get at every firearm they can, hoping to remove all the firearms from the home while the family is at their most vulnerable.”

The state law has been in the books for years but not enforced, King said. The Erie County Sheriff’s Office told FoxNews.com that it learned about the Buffalo police decision after the announcement, but has no plans to invoke it on a regular basis as the city of Buffalo does.

Dominic Saraceno, a Buffalo defense attorney, said he anticipates legal challenges. He is concerned that family members may simply allow police to retrieve the guns while not realizing their value.

“These gun collections can value into the hundreds of thousands,” he said. “If a police officer came to my door without a warrant signed by a judge, I’m not giving them anything. Most people don’t know that and get intimidated.”

Calls to Buffalo’s mayor’s office and to the police department were not returned. But the city has employed other programs, including buy-backs, to help counter gun violence. One such program took place in August and netted 840 guns. Critics of these buy-back programs say most people who turn in their guns are likely law-abiding citizens and these numbers do not necessarily estimate illegal guns off the streets.

“I say to those critics, again, if we can get one of these guns off the streets that could be used to commit a crime or injure a member of our community, it’s a good thing,” Mayor Byron Brown told WIVB during the summer.

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EUGENE VOLOKH
March 25, 2014
Does the Second Amendment trump the First?
It’s a question being looked at here in the Ohio Valley after a local newspaper is denied a Freedom of Information request.
The request was made by a reporter for a Wheeling newspaper requesting the names of all the people with a concealed-carry permit.
Ohio County Sheriff Pat Butler says it violates the privacy and safety of many residents. “First of all, I think it’s an invasion of privacy, and I think it’s a dangerous precedent to set to let people all over the Ohio Valley know who has permits and who doesn’t,” Butler said….
Stories about whether one constitutional right “trump[s]” another usually turn on unduly loose understandings of what constitutes a right. This is particularly so in this situation.
There is no First Amendment right to access government records. There’s a First Amendment right to speak about what you’ve found in a record that was released to you, but not a First Amendment right to access the record in the first place. (Courts have recognized one significant exception this principle — a First Amendment right of access to documents filed in criminal prosecutions or civil lawsuits. But that exception is limited, and not applicable to ordinary government records.)
Of course, there are broad rights to access many government records secured under state and federal statutes, usually called Freedom of Information Acts or Public Records Acts. But those statutes tend to have statutory exemptions for private information about particular people. Whether or not the sheriff should release the records turns not on the First Amendment, but on the relevant West Virginia statute and its privacy exception.

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January 10, 2014

Things are looking up for gun owners in Illinois.  On Monday, as some 4,500 concealed carry applications flooded the state’s online portal on its first full day of operation, Obama-appointed U.S. District Judge Edmond E. Chang of the Northern District of Illinois issued a significant opinion that invalidated Chicago’s ban on firearm sales and transfers within the city. The suit was brought by the Illinois Association of Firearms Retailers and three individuals, with the backing of NRA.  

The Chicago transfer ban was part of a series of ordinances the city hastily enacted after its total ban on handgun possession was invalidated by the Seventh Circuit Court of Appeals’ 2010 opinion in McDonald v. Chicago.  Chicago’s crusade to be the nation’s most oppressive jurisdiction for gun owners has yielded other important victories for the Second Amendment.  These included the Seventh Circuit’s holding in 2011’s Ezell v. Chicago that Chicago’s ban on discharge (notwithstanding its requirement that residents obtain live-fire training as a condition of owning a gun in the city) was unconstitutional. Other aspects of the city’s wide-ranging gun control regime have been whittled down in response to litigation and the broad preemption provisions of Illinois’ recently-enacted Firearm Concealed Carry Act (the result of yet another successful Second Amendment case in the Seventh Circuit, 2011’sShepard v. Madigan).  The transfer ban remained, however, a symbol of the same political denial and impudence that have ironically helped move the Second Amendment needle in the right direction through litigation time and again.

The ordinance at issue flatly stated: “no firearm may be sold, acquired or otherwise transferred within the city, except through inheritance of the firearm.”  Chicago attempted to justify the ordinance by, among other things, pointing out that residents could obtain firearms outside the city’s borders.  The city also insisted that the ordinance increased the “transaction costs” of the firearms trade, making the acquisition of firearms by criminals more expensive, time-consuming, and dangerous (because they would have to travel through high-crime areas infested by rival gangs to buy guns). Chicago additionally claimed gun stores “are dangerous in and of themselves and cannot be safely regulated.”

The court called Chicago’s argument that it could ban firearm sales, as long as guns were available elsewhere, “profoundly mistaken.”  “Second Amendment rights,” Judge Chang wrote, “must be guaranteed within a specified geographic unit–be it city or state.”

The court also determined that the restriction had to pass a high level of scrutiny (although not quite “strict scrutiny”), because the type of regulation at issue was unknown to the framers of the Second Amendment and because it broadly prohibited even law-abiding Chicagoans from exercising an essential component of the rights protected by the Second Amendment–the acquisition of firearms.  Regarding Chicago’s purported justification of increasing transaction costs, the court noted that the evidence showed few criminals actually purchase firearms directly from legitimate dealers. Thus, “residents who seek to legally buy a gun bear more of the share of the added transaction costs in time, effort, and danger than gang members or would-be criminals ….”  The city, the court wrote, “cannot justify its ban on legitimate gun sales and transfers with overinclusive means that impact more law-abiding citizens than criminals.”

Examining another Chicago claim that the ban helped maintain the city’s “low household gun-ownership rate,” the court opined: “It is … doubtful that minimizing household gun ownership is, after Heller and McDonald, even a valid basis for gun regulation: possession of a gun for self-defense in the home is the core right protected by the Second Amendment, so trying to minimize the exercise of that right cannot be a valid basis for the sales-and-transfer ban.”

Demonstrating the importance of proper scrutiny, the case was distinguishable from other recent opinions applying only “intermediate scrutiny” (for example, the recent opinion largely upholding New York’s SAFE Act) by its insistence that the city do more than just produce “expert” opinions claiming the restrictions could inhibit crime. Rather, the court refused to ignore the effects the restrictions also had on law-abiding residents and legitimate activity.  According to Judge Chang: “If the City is concerned about reducing criminal access to firearms, either through legitimate retail transactions or via thefts from gun stores, it may enact more appropriately tailored measures.”

Because Chicago does not otherwise regulate firearm sales, the court, on its own initiative, stayed the effect of its judgment so the city could decide whether to appeal the case or pursue legislative remedies through more narrowly-tailored regulation. The city was given until January 13 to request an additional stay.

Besides paving the way for lawful firearms commerce in Chicago, Judge Chang’s decision also shows the possibilities of a court taking the Second Amendment seriously.  We will closely follow this case and continue to keep you informed of significant developments.

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