[Eugene Volokh, March 9, 2007 at 1:44pm] Trackbacks
The Unusual Suspect:

Check out the state and city amicus briefs in the D.C. Circuit Second Amendment case on the individual rights side and the collective rights side.

On the individual rights side: Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Texas, Utah, and Wyoming — makes sense, since they are all gun country states (not necessarily red states, but many blue states and blue state politicians support gun rights).

On the collective rights side: Idaho, Maryland, Massachusetts, New Jersey, Boston, Chicago, and New York City. Mostly makes sense — all have relatively heavy gun regulations, all either lack a state constitutional right to bear arms (Maryland, New Jersey, New York), have a state right that has been interpreted as collective (Massachusetts), or have a state individual right that is written and has been read very narrowly (Illinois).

Except one: Idaho, a solid gun country state, with an individual right to bear arms in its state constitution, precedent enforcing it, and even precedent applying the Second Amendment as an individual right to the states (though contrary to the Supreme Court's then-relatively-fresh Cruikshank decision, which held that the Second Amendment didn't apply to the states). True, the precedents are old, but Idahoans' support of gun rights seems to remain current, and the Idaho Attorney General who signed on to the brief — Lawrence Wasden — is a Republican with an A- rating from the NRA.

What's the backstory here? Does AG Wasden simply have firm views on the Second Amendment that he wants to prevail as a matter of legal principle? Does he solidly believe in self-government for D.C., and doesn't want to unduly shackle the D.C. voters' representatives? Is there some personal connection between him and the other states' AGs that led him to try to help a buddy? Inquiring minds want to know.

Thanks to reader Fredrik Nyman for prompting me to post this.

UPDATE: The D.C. Circuit docket sheet reports that Idaho withdrew from the brief. Alan Gura, one of Parker's lawyers reports that "Idaho withdrew its support of that brief, stating that it was in error." Matthew Bower reports (though without claiming 100% confidence) that "The directive to withdraw Idaho's support came directly from the AG, whereas the decision to support the Mass. brief in the first place apparently did not. To my understanding that decision was made by a deputy who rather badly overstepped his bounds." Interesting.

All Related Posts (on one page) | Some Related Posts:

  1. Symposium on Parker:
  2. A Dissenting View on Parker:
  3. Levy Cheers D.C. Circuit Gun Ruling:...
  4. The First Federal Appeals Court Decision to Recognize an Individual Right to Bear Arms?
  5. The Unusual Suspect:
  6. The D.C.-Is-Not-a-State Argument:...
  7. Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election:
  8. D.C. Circuit Accepts Individual Rights View of the Second Amendment,
  9. DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment:
Clayton E. Cramer (mail) (www):
I've requested clarification on this from Wasden. I notice that his name is misspelled as Walden in the decision. I have also pointed out to him that the Idaho Supreme Court has long taken the position that the Second Amendment not only protects an individual right, but limits both federal and state authority.
3.9.2007 3:03pm
Alan Gura:
Idaho withdrew its support of that brief, stating that it was in error. I have no idea how or why Idaho appeared on that brief initially, but they did make it clear that it was not their position.

We will update our webpage to reflect that filing.

Thanks,
Alan
3.9.2007 3:08pm
Hattio (mail):
Is AG an elected position in Idaho? If so, who wants to bet he doesn't get a second term.
3.9.2007 3:21pm
M (mail):
As a former Idahoan I'd suspect that AG got confused and signed on to something w/o understanding it, not being smart enough to find someone who did understand it first. That would be perfectly typical for a politician from the 'ol Gem State.
3.9.2007 3:34pm
Clayton E. Cramer (mail) (www):

We will update our webpage to reflect that filing.
You should see about getting the decision corrected as well.

And yes, in answer to Hattio's question, the AG is an elected position in Idaho, and no statewide candidate in Idaho can be elected who is not progun. I can't find this written in the Idaho Constitution, but it might as well be! Art. I, sec. 11 of the Idaho Constitution was amended in 1978 to make it really, really clear where we stand about guns:

SECTION 11. RIGHT TO KEEP AND BEAR ARMS. The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum
sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.
3.9.2007 3:38pm
Carolina:
Did the Idaho AG correct his error by simply removing the endorsement of the collective rights amicus brief or did he switch sides and join the individual rights brief?
3.9.2007 3:46pm
Jinnmabe (mail):
Let's be honest, Idahoans. Wasden is a bit of a dim bulb. It shocks me not at all to find that he (apparently mistakenly) allowed Idaho to submit an amicus brief against the individualist interpretation of the Second Amendment. As to his electability, his opponents have all been complete unknowns. Well, maybe Clayton had heard of Gabbert or Bob Wallace, but most people who only casually follow Idaho politics had no clue.
3.9.2007 3:50pm
Debauched Sloth (mail):
From Clayton Cramer's blog:

Over here [link to this page], someone who apparently was involved in the case says that Idaho's appearance on that brief was in error.

That was Alan Gura, who posted above.

Yeah, I think it's fair to say he was "involved in the case" -- inasmuch as he was lead counsel for the Appellants.
3.9.2007 4:09pm
Clayton E. Cramer (mail) (www):

Yeah, I think it's fair to say he was "involved in the case" -- inasmuch as he was lead counsel for the Appellants.
I suspected as much, but better to say too little, and be correct, rather than too much, and be wrong!
3.9.2007 4:50pm
Clayton E. Cramer (mail) (www):

As to his electability, his opponents have all been complete unknowns. Well, maybe Clayton had heard of Gabbert or Bob Wallace, but most people who only casually follow Idaho politics had no clue.
Even I haven't heard of these guys. Keep in mind that in Idaho, if you win the Republican primary for a statewide office, you have to be pretty bad to lose the general election. It's rather like a mirror image of California. The county that I live in needed a new general counsel--so instead of the county running an ad for a replacement, the county's Republican Central Committee ran the screening ad instead.
3.9.2007 4:53pm
Cheburashka (mail):
The best part is pp. 35-36, in which Volokh is compared to Dorf and Volokh found superior...
3.9.2007 4:54pm
margate (mail):
And so the stage is now set for the showdown between Parker, and the right to bear arms, and Grubbs, expanding the police's authority to execute no-knock warrants.
3.9.2007 5:01pm
Clayton E. Cramer (mail) (www):

And so the stage is now set for the showdown between Parker, and the right to bear arms, and Grubbs, expanding the police's authority to execute no-knock warrants.
I would expect that the prospect of kicking down a non-criminal's door because of erroneous information would be far less appealing to police officers who know that the person inside has a right to be armed.

There's a legitimate place for no-knock warrants, for hostage cases, certain rare (but no longer implausible) terrorist situations--and that's about it. Drugs and certain types of financial chicanery are about the only cases where a no-knock warrant is necessary to prevent destruction of evidence, and the hazards of no-knock warrants clearly outweigh the societal benefits.
3.9.2007 5:36pm
JB:
Financial chicanery, maybe. But if a drug dealer has to flush $100,000 down the toilet or be caught with the goods, I don't think either outcome is bad from a drug control perspective. A couple incidents like that and the dealer's out of business anyhow, or has more...unofficial...gun-wielding thugs to worry about.
3.9.2007 6:01pm
Clayton E. Cramer (mail) (www):

But if a drug dealer has to flush $100,000 down the toilet or be caught with the goods, I don't think either outcome is bad from a drug control perspective.
Can you flush that much drugs down the toilet? My impression is that no-knock warrants get used for cases involving pretty low level drug dealers--the sort whose entire inventory is two or three flushes. It is difficult to flush a dead body or a gun down the toilet.

One of the no-knock warrants served in San Diego County some years ago alleged half a ton of cocaine was in the garage--but the DEA/Customs team could see inside the garage when the electronics company VP who lived there drove in. (They had the place under surveillance.) They knew that the affidavit that they were using was at least grossly inaccurate--and they did a no-knock warrant anyway, putting the guy who lived there in the hospital for a year. (They later apologized.)

I talked to a Treasury Internal Affairs agent who had reviewed this case, and as he explained the situation to me, "Most Treasury agents are doing their jobs well and honorably. There are a few cowboys that are completely out of control." It didn't help any that a federal judge read a 30 page affidavit in support of the warrant in 30 seconds, in the driveway of his home, and then signed the warrant. We can blame police for some of this, but we can also blame judges who issue these warrants far too readily.
3.9.2007 6:18pm
sjalterego (mail):

I talked to a Treasury Internal Affairs agent who had reviewed this case, and as he explained the situation to me, "Most Treasury agents are doing their jobs well and honorably. There are a few cowboys that are completely out of control." It didn't help any that a federal judge read a 30 page affidavit in support of the warrant in 30 seconds, in the driveway of his home, and then signed the warrant. We can blame police for some of this, but we can also blame judges who issue these warrants far too readily.


WE, the public can blame the judges who issue these warrants to readily. The Treasury department and other law enforcement agencies that request warrants and often complain when they are refused have no moral basis for shifting any of the blame off onto the judges.
3.9.2007 8:40pm
sjalterego (mail):

I talked to a Treasury Internal Affairs agent who had reviewed this case, and as he explained the situation to me, "Most Treasury agents are doing their jobs well and honorably. There are a few cowboys that are completely out of control." It didn't help any that a federal judge read a 30 page affidavit in support of the warrant in 30 seconds, in the driveway of his home, and then signed the warrant. We can blame police for some of this, but we can also blame judges who issue these warrants far too readily.


WE, the public can blame the judges who issue these warrants too readily. The Treasury department and other law enforcement agencies that request warrants and often complain when they are refused have no moral basis for shifting any of the blame off onto the judges.
3.9.2007 8:40pm
Brett Bellmore:
When modern forensics can detect compounds at parts per billions concentration, flushing down the toilet is no justification for no knock searches. Maybe they should just execute a regular search warrent on the sewer, instead.
3.9.2007 9:46pm
Alan Gura:
Here is Idaho's withdrawal from the amicus brief:

http://www.gurapossessky.com/documents/idaho.pdf
3.10.2007 2:05am