Brady Campaign Vice-President Dennis Henigan is once again presenting a carefully woven fabric of undulating lies, half-truths, misstatements and outright fabrications. He somehow has linked the recent court decision in Woolard v. Sheridan with a self-defense shooting in Florida: “Recently Judge Benson Everett Legg of Maryland became the first federal judge to hold there is a Second Amendment right to carry a gun outside the home. Only days before, Trayvon Martin, a Florida teenager, lay dead from a shooting that dramatically illustrates the price in lives we will pay if Judge Legg’s renegade ruling becomes the law across the United States.”
Anyone who has read Judge Legg’s decision can hardly qualify it as “renegade”. He explains his logic clearly and thoroughly, providing numerous citations to show the principles and precedents he is drawing upon to craft his ruling. And it is a complete fabrication to say that his ruling held that there is a Second Amendment right to carry a gun outside the home.
No, Judge Legg’s ruling addresses neither the issue of whether people have a right to carry a gun outside the home nor the places that they can carry them. It did not even address what sorts of people should be issued concealed carry permits. His ruling said that a person who the state believed was qualified to carry a gun (by virtue of not being a felon etc.) in all of the places where the state allowed people to carry guns, did not have to show a “good and substantial reason” why they wished to carry a gun.
Without going into the depth which he did, basically what Judge Legg held was that, while self-defense at home was at the core of the right protected by the Second Amendment, the way SCOTUS reasoned Heller indicated that carrying a gun outside the home was also part (if a lesser part) of that right. While I personally disagree, Judge Legg felt that intermediate scrutiny (as opposed to the highest level or strict scrutiny) was the proper level of review to apply to laws impinging this aspect of the right.
Finally (awful lot for a first paragraph, I know) the shooting of Trayvon Martin is, at best, only very tangentially related to the issue of permit laws; having far more to do with racial perceptions and the siege mentality of gated communities than concealed carry.
That’s when Denny starts with the misstatements and outright lies:
In 2008, in the Heller case, the conservative 5-4 majority of the Supreme Court reversed the Court’s own longstanding precedent in holding that the Second Amendment guarantees an individual right to have a gun in the home for self-defense. Since that ruling, federal and state courts have issued at least 40 decisions refusing to extend the right to have a gun for self-defense outside the home.
For starters the entire court held that the Second Amendment protects an individual right. As Justice Stevens (joined by the other 3 dissenting Justices) stated in his dissent:
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
Second there was no “longstanding precedent” on keeping handguns in the home for self-defense; in fact there was no precedent at all on that point. The only case in the century preceding Heller and McDonald, Miller v. United States (which the antis loved to quote), did not address the issue of possession of firearms in the home but rather the Constitutionality of the National Firearms Act of 1934’s ban on short-barreled shotguns. (You remember the NFA, the law to keep bootleggers from shooting up neighborhoods with Tommy Guns which was passed after Prohibition ended!)
Denny’s follow-up statement about 40 decisions refusing to extend the right is simply misleading; the lack of a precedent does not itself constitute precedent. He also is awfully vague about what cases he is referring to. So vague, in fact, that he doesn’t actually single one out until two paragraphs later:
Judge Legg’s ruling not only diverges from the holdings of other federal and state courts, but it also is in direct defiance of the federal appeals court that establishes binding law for lower court judges like him in Maryland and four other states. In a case decided one year ago, … by a 2-1 vote, a panel of the Fourth Circuit refused to go beyond Heller to extend the Second Amendment right outside the home.
Well, actually, not quite Denny. In fact that doesn’t even qualify as a not quite, that qualifies as another flat out lie. In U.S. v. Masciandaro the court simply stated that:
Masciandaro’s Second Amendment claim to a right to carry or possess a loaded handgun for self-defense is assessed under the intermediate scrutiny standard, and, even if his claim implicates the Second Amendment, a question we do not resolve here, it is defeated by applying that standard. [emphasis added]
So the single one of Denny’s 40 decisions he actually specifies doesn’t even involve Second Amendment issues. But Denny continues:
… refused to go beyond Heller to extend the Second Amendment right outside the home. Instead, Judge J. Harvie Wilkinson … decided it would be “prudent to await direction from the [Supreme] Court itself” before making the quantum leap to recognizing a new right to be armed in public places.
Oddly enough, given Denny’s apparent worship of Judge Wilkinson’s Constitutional wisdom, he fails to mention the Judge’s footnoted comment on the main holding:
In his opinion for the court, my good colleague [Judge Niemeyer] concludes that we need not decide whether Masciandaro’s Second Amendment rights were implicated outside the home. But, I respectfully note, this is not the type of case where constitutional avoidance is appropriate. … Applying intermediate scrutiny to reject Masciandaro’s claim does not avoid the constitutional question—it presumes the existence of the constitutional right and conducts a constitutional analysis to defeat it. As I have written, I would acknowledge that Masciandaro’s claim, in the particular circumstances of this case, implicates the Second Amendment, leading us to reject the claim under the intermediate scrutiny standard. [emphasis added]
This omitted part indicates that what Judge Wilkinson wants to wait for is direction from SCOTUS on the core right of the Second Amendment; in other words is possession of a firearm for self-defense outside the home part of that core right which would be subjected to strict scrutiny.
So I guess it is not Judge Legg who is ignoring precedent and making shit stuff up .
Denny then continues:
In words that now seem prescient, [Judge Wilkinson] described his worst fear: “This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square.”
The killing of Trayvon Martin is exactly the kind of “unspeakably tragic act of mayhem” that arises from the right to be armed in public places.
Wow, a (possibly questionable) self-defense shooting is an unspeakably tragic act of mayhem? Jeez I thought gun nuts had a lock on overblown rhetoric! Anyway this is Denny’s link; that Judge Legg’s ruling will allow more people to get permits to carry, which will lead to more (possibly questionable) self-defense shootings. Denny continues:
George Zimmerman, 28 years old, had obtained a license to carry concealed from the State of Florida, which has become infamous for handing out such licenses to very dangerous people.
Ah, yes, the state that has “become infamous.” Not “the state that has had 20% of permits revoked for criminal activity.” Not “the state whose legislature has debated repealing their ‘shall-issue’ permit law.” Not even “the state that has seen an uptick in crime since passage of their permit law.” No, Denny made none of these statements, indeed made no kind of fact or evidence based statement at all, because, well, there are no facts or evidence to back such statements up.
In fact the state of Florida keeps track of how many permits they issue, and how many they revoke. According to this report, of the 2,145,632 concealed weapon licenses issued since 10/01/1987, one hundred sixty-eight have been revoked for criminal use of a firearm after issue. This means a whopping 0.0078% have been revoked for criminal use of a firearm. Overall, 6,837 or 0.32% have been revoked for any reason (and 743 or about 10.8% of those have since been reinstated).
This, in Denny’s mind, constitutes handing out permits to dangerous people. I have a feeling if Denny’s criteria for allowing people to be armed were applied across the board not even cops would qualify.
Then on top of the positively miniscule number of crimes by permit-holders is the fact that precisely 1 out of 29 peer-reviewed studies of right-to-carry laws performed by economists and criminologists showed an increase in crime.
And the cherry on the very top is that more than twice as many lives are saved in defensive gun uses as are lost in criminal gun uses
But Denny goes on:
The full facts about this incident are still emerging. But one thing seems clear. If George Zimmerman had not been carrying a gun, it is likely Trayvon Martin would be alive today. Surely the gun played a role in Zimmerman’s fateful decision to ignore the advice of the police dispatcher to wait for the arrival of patrol officers. Absent the gun, whatever fight occurred between Martin and Zimmerman likely would not have resulted in a fatal injury.
Okay, first the dispatcher (actually a 9-1-1 operator, but I guess police dispatcher sounds more authoritative) never ‘advised’ Mr. Zimmerman to wait for officers to arrive, he asked George where he wanted to meet the officers.
Second: Had Trayvon Martin not tried to evade George it is likely that he would be alive today. I he had just kept walking back to his house, George Zimmerman almost certainly would have done nothing but watch him. See Denny? We can all play these could’a would’a should’a if only games, but they prove nothing.
Third: Guns do not have evil black magic hypnotic mind control powers! Therefore a gun can not make a decision for someone, nor can it even play a role in making a decision. As anyone who has read the transcript of the 9-1-1 call could tell you, George’s decision to follow Trayvon probably had much more to do with the fact that there had been a series of unsolved break-ins in the neighborhood (George stated in the call “these a$$holes always get away”), there was a teen male walking around in the rain who, when he saw George watching him put up his hood and tried to run away from him.
As for whether any lives would have been lost had George not had a gun it’s hard to say and not really relevant to the overall question of armed self-defense. You are always going to have questionable cases of self-defense, but they are far outnumbered by the undisputed “good” defensive shootings.
Denny the goes back to bashing Judge Legg:
In fashioning a right to be armed in public out of whole cloth, Judge Legg struck down Maryland’s entirely sensible requirement that, to carry a concealed weapon, one must show a “good and substantial reason” to be armed.
Okay, as we have already pointed out, Judge Legg fashioned nothing out of whole cloth, or even out of taffeta. Second, as Judge Legg pointed out in his ruling:
A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be.
So even if we accept (which I do not) that Maryland’s requirement is sensible that does not make it Constitutional. After all, you could argue that it is sensible to require people be literate in order to register to vote but the courts have long ruled that it is not Constitutional to do so.
When it loosened its requirements for concealed carry in 1987, Florida made a terrible mistake. The result is that trigger-happy individuals like George Zimmerman have been emboldened to impose their own death sentences on persons they believe are acting “suspicious.”
Again, no. George did not impose a death sentence on someone who was behaving suspiciously, he did what Denny and his ilk always say you should do; call 9-1-1 and be a good witness. Other factors led to the confrontation, and without witnesses it is very hard to know whether Trayvon was “executed” or whether George was reasonably in fear of death or great bodily harm and acted in self-defense.
The problem is that Denny and his cohorts would rather see a woman beaten, raped and strangled with her own pantyhose than standing over the bullet-riddled body of her assailant because they will always say “but what if he just wanted a light” or “why couldn’t you just scream/run away/vomit/wet yourself.”
Maryland and other states with more restrictive laws have chosen not to make Florida’s mistake. Their choices should be respected by the courts. Nothing in Heller, or in the Constitution, suggests otherwise.
Given the relative crime rates before and after Florida passed their law I would hardly characterize it a “a mistake”, but whether it was a mistake or not is utterly immaterial to the root principle that the freedom to own and carry the weapon of your choice is a natural, fundamental, and inalienable human, individual, civil, and Constitutional right — subject neither to the democratic process nor to arguments grounded in social utility.