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Massachusetts Trial Court Holds Gun Storage Law Unconstitutional:

After a police officer's 12-year-old son got access to the officer's handgun, the officer was prosecuted for violating Mass. Gen. Laws. ch. 140, § 131L:

It shall be unlawful to store or keep any firearm, rifle or shotgun ... in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.

Last month, the court held the statute was unconstitutional (Commonwealth v. Bolduc), and dismissed the prosecution. I only just now managed to get a copy of the opinion, and here's the relevant discussion:

The locking mechanisms [required by the statute] are the functional equivalent of those enumerated in the D.C. statute struck down in Heller.

In Heller, the Court held that the Second Amendment not only protects an individual's right to possess firearms but that the right requires that the firearms be available for "the purpose of immediate self-defense." The Massachusetts statute mandating lock boxes or similar devices would frustrate an owner's ability to immediately access an operable weapon.

Although the statute exempts firearms that are "carried" or "under the control of the owner" from the requirement that they be locked, the statute applies to the lawful owner of a firearm even when he is at home. People can be subject to prosecution whether they are home or not. The term "under the control of the owner" is a question of fact and subject to interpretation. Any ambiguity in the statute as applied to a person lawfully keeping a firearm in the home must be resolved in favor of the holder of the right. Legislation requiring an owner to store firearms in a place inaccessible to children or unauthorized persons would satisfy the Supreme Court's holding in Heller and protect the safety of others.

In light of the foregoing, the Court finds that, based on the Supreme Court's decision in District of Columbia v. Heller, G.L.c. 140, sec. 131L is unconstitutional.

According to a Massachusetts Lawyers Weekly article notes that Massachusetts courts seem split on this. It also reports that the prosecutor "agreed with [Judge] Lynch's analysis and decided not to appeal. 'I've read the Heller case,' he says. 'Judge Lynch read the Heller case, and the Heller case seems to say very clearly that these kinds of blanket restrictions are unconstitutional.'"

Interestingly, the court seemed to assume that the Second Amendment applies to state laws -- what lawyers call the "incorporation" issue -- which is something Heller pointedly declined to resolve.

kietharch (mail):
I was originally pleased by the Heller decision but the case above makes me queasy. From the brief description it appears that the Massachusetts law was aimed at making firearms that are kept in one's home less likely to cause accidental injury. I do not see how society's well being is advanced by the court's interpretation of Heller. Am I missing something? if the law had specified that a pistol kept in the home must be unloaded would that also violate the Heller decision? how about if the gun had to be kept five or more feet above the floor (to make it less accessible to toddlers)?
3.26.2009 7:58pm
J. Aldridge:
This was really a overreach by the court.
3.26.2009 8:17pm
J. Aldridge:
^^^ per EV's last remark.
3.26.2009 8:22pm
Jeff Wilson (mail):
kietharch - is the point of the Second Amendment to advance "society's well being?"

With regard to the incorporation issue, what is the theory behind situations like this? Is it wrong for the state court to assume that the federal Constitutional provision applies to it - until such a judgment has been made, shouldn't the prosecutor appeal, as he is governed by state law?

What about cases where the federal Constitutional provision reflects a natural right, and not one that is granted as part of a particular political establishment? Can such provisions be assumed to incorporate automatically against the states?
3.26.2009 8:39pm
Bill Snowden (mail):
I'm not too surprised. Incorporation of the 14th has been around for so long now that I believe that it has reached the level of a rebuttable presumption in the minds of most judges, i.e., that a federal right applies to the states via the 14th unless proven otherwise. The exception would be those folks who disagree with the federal right in the first place.

We may never know, but I suspect Scalia's statement about Heller not affecting "reasonable restrictions" was inserted in order to gain a majority. He's an originalist and there were no restrictions on ownership of any type of firearm or other weapon of war in their mind. Reread Hamilton in the Federalist on the Second Amendment.

I still have hope that we will return to a government more in line with the one that we had for the first hundred years, rather than the one of the past hundred.
3.26.2009 8:42pm
J. Aldridge:
Bill Snowden said: "Incorporation of the 14th has been around for so long now that I believe that it has reached the level of a rebuttable presumption in the minds of most judges..."

Didn't take until the 60's until the 4th was incorporated?

I'm still waiting for the court to explain how liberty of the person also means freedom of the press and speech.
3.26.2009 8:47pm
cboldt (mail):
The Mass court seems to see a distinction between "secured in a locked container" and "store in a place inaccessible to children or unauthorized persons."
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I'm not sure how one renders "inaccessible" without resort to some sort of locked container, vault, closet, or room.
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Is there any parallel statute relating to pr0n? For the childrren, of course.
3.26.2009 8:50pm
John McE (mail):
cboldt,

There is a statute relating to p0rn "for the children": if children are present in the p0rn, then you will be secured in a locked container ;-)

On the serious side, it is great news that Massachusetts courts are recognizing Heller. Yesterday I went to Boston police headquarters to inquire about an FID-C (Firearms Identification Card) which used to be handed out as a matter of course, after taking a few fingerprints, and by law are supposed to be "shall issue" (unlike handgun permits which are not)

Nowadays, they require a Massachusetts approved safety course ($75?) and a $100 fee, drivers license, birth certificate, and proof of residency, merely to possess a rifle or shotgun in the home. (Handguns have more onerous requirements)

The right to possess a firearm for self-defense decreed in Heller is, in Massachusetts, a privilege provided for a fee and requires a fair bit of effort (and patience)

If you grew up around here you'd probably think this is fine, as you are accustomed to all sorts of regulations. Having just moved back from Texas it came as quite a shock. When I bought my first handgun in Texas the requirement was that I give the store my money, they run a quick NICS check, and then they give me the gun, which I was free to keep in my home or carry around in my car anywhere in the State without any sort of license.

And for those who find that shocking, I will tell you that Austin, a city now larger than Boston, was the safest place I've ever lived: any neighborhood, any time of day or night, it was safe to walk the streets.
3.26.2009 9:16pm
Ned Ludd (mail):
Interesting that no one seems to know that there are storage solutions for guns that allow access within two seconds.
3.26.2009 9:42pm
ArthurKirkland:
Yeah, but they didn't exist in 1796.
3.26.2009 10:02pm
anonymous8849484 (mail):
"Interesting that no one seems to know that there are storage solutions for guns that allow access within two seconds."

holsters?

if you're not talking about holsters, those other storage solutions are not reliably accessible, certainly not within 2 seconds

this came up in heller, and roberts basically mocked the dc attorney over it
3.26.2009 10:09pm
cboldt (mail):
-- Interesting that no one seems to know that there are storage solutions for guns that allow access within two seconds. --
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I think the court knows that, and in any event, that fact doesn't play for the Mass police officer's case - he wasn't home yet his gun was in an unlocked dresser drawer. In this case, the court didn't like the outcome being conviction, and needed a way around the statute. Same court, different criminal, and conviction would have been obtained.
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The court hangs its holding on an interpretation of the Mass statute, that requires a person, while at home, to either have the gun be carried by its owner, or be in a locked "container." It finds this to run afoul of Heller. But, says the court, if the statute omitted the option of a trigger lock, and modified the "in a container" to "secured," then the statute would not run afoul of Heller.
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I wonder how many convictions are at risk of being wiped off the books, if a higher Mass court agrees with the trial court.
3.26.2009 10:10pm
Daryl Herbert (www):
There are three possible ways that the principles in Heller require the court to strike down the law.

First is outright, complete incorporation of the 2nd Amendment. The Supreme Court expressly declined, in Heller, to decide whether the 2nd Amendment is incorporated against the states.

The Supreme Court did find, unanimously, that the 2nd Amendment protects an individual right. Individual rights from the Bill of Rights, in general, are incorporated against the States. See U.S. Const., Amendments 1 and 4-8. If the 2nd Amendment is completely incorporated, there is no question that the law must be struck down.

The second possible way to strike it down is to find that the 2nd Amendment is only partially incorporated, but that the state law is not sufficiently protective of individual rights to be an adequate substitute. Some parts of the Bill of Rights are only incorporated to the extent necessary to promote the ends of justice. For example, the grand jury requirement of the 5th Amendment can be satisfied by state governments (but not the federal government) by allowing defendants to demand a preliminary hearing.

Even partial incorporation should be sufficient to strike down this particular statute, given that it prohibits exactly the thing that the Supreme Court found must be allowed, and the state has not shown an adequate alternative.

The third possible way to strike it down is to find that Heller informs the Mass. Supreme Court's interpretation of a gun-rights provision in the Massachusetts State Constitution. That provision is as follows:

Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

It has long been interpreted to protect only a collective right. However, its language is similar to that of the 2nd Amendment, and the Heller court painstakingly analyzed the language in light of historical sources. The Massachusetts state Constitution comes from that same era.

Of course, state courts are not required to interpret their own Constitutions based on how the Supreme Court interprets the federal Constitution. The only question is whether the Supreme Court of Mass. finds the historical reasoning in Heller to be sufficiently persuasive to overturn the old cases.

* * *

If I was on the Mass. Sup. Ct., I would write a concurrence expressly going with Reason 3, and leave questions related to incorporation for some other court to deal with. That would be the most conservative position, I think.
3.26.2009 10:11pm
Clayton E. Cramer (mail) (www):

The third possible way to strike it down is to find that Heller informs the Mass. Supreme Court's interpretation of a gun-rights provision in the Massachusetts State Constitution. That provision is as follows:

Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

It has long been interpreted to protect only a collective right. However, its language is similar to that of the 2nd Amendment, and the Heller court painstakingly analyzed the language in light of historical sources. The Massachusetts state Constitution comes from that same era.
Actually, I am only aware of two cases where the Massachusetts Supreme Judicial Court has interpreted the meaning of Art. XVII, one in the 1890s, where they only held that there was no right for armed bodies of men to march through the streets (and rather carefully avoided the question of an individual right to be armed), and Commonwealth v. Davis (Mass. 1976) where they denied an individual right, and didn't even make an unserious attempt to argue from historical evidence. Had they done so, it would have been hopeless, since the principal author of the language, John Adams, went out of his way in A Defence of the Constitutions of the United States of America to argue that legitimate regulation of arms by the state was okay, but that the private carrying of arms for self-defense was one of the exceptions--an area where the state couldn't regulate.
3.27.2009 12:55am
David Welker (www):

I still have hope that we will return to a government more in line with the one that we had for the first hundred years, rather than the one of the past hundred.


Oh, so you must want to bring back slavery, right? Because for the the majority of the first 100 years, slavery was legal?

Maybe during the first hundred years, our country was no utopia?

Look, I am not trying to be too harsh here. But, keep things in perspective.
3.27.2009 12:57am
Clayton E. Cramer (mail) (www):

From the brief description it appears that the Massachusetts law was aimed at making firearms that are kept in one's home less likely to cause accidental injury. I do not see how society's well being is advanced by the court's interpretation of Heller. Am I missing something?
Yes, that such laws, while they give us all warm fuzzy feelings, don't seem to work. When California was getting ready to pass such a law, John Lott pointed out that one other state (I think it might have been Connecticut) had passed a similar law in 1981--and there was no statistically significant affect in accidental death rates for kids because of it.

Yes, I am disgusted that there are irresponsible people that leave guns lying around the house where a kid (or a burglar) can get to them. But accidental gun deaths of kids (what these laws are aimed at preventing) are so incredibly rare that these laws, if they do any good at all, are lost in the noise.

I am surprised to see that the Massachusetts law didn't exempt police officers. At least the first version passed by California exempted police officers.
3.27.2009 12:58am
Clayton E. Cramer (mail) (www):

Oh, so you must want to bring back slavery, right? Because for the the majority of the first 100 years, slavery was legal?
It was legal in some states in the first 100 years. And when conditions changed, we amended the constitution to correct that.


Maybe during the first hundred years, our country was no utopia?

Look, I am not trying to be too harsh here. But, keep things in perspective.
It's no utopia now--and getting steadily worse, especially with respect to self-discipline. That is one area where we compare poorly to the Founding.
3.27.2009 1:01am
Clayton E. Cramer (mail) (www):

He's an originalist and there were no restrictions on ownership of any type of firearm or other weapon of war in their mind.
That's not quite true. There were restrictions. Most men were required to own a gun.
3.27.2009 1:04am
MS (mail):


But accidental gun deaths of kids . . . are so incredibly rare



You've got your Cramers and you've got your Bellesileses. It's a shame that there are that there are so few honest advocates on either side of the gun debate.
3.27.2009 1:35am
ReaderY:
It does not seem to me that Heller prohibits all laws requiring keeping firearms out of reach of minors, it simply prohibits restrictions that go so far as to make the weapons effectively inaccessible to their owners.

Given that a minor in fact got access to the weapon, it's not at all clear tnat Heller renders the statute unconstitutional as applied.

The overbreadth doctrine is largely limited to the First Amendment; it has been applied to some abortion cases but the Supreme Court has suggested any reach outside the First Amendment is exceptional.

Since the opinion indicates the defendant did nothing to keep the gun out of reach of his son, Heller would appear to permit prohibiting the specific situation and hence the statute appears constitutional on an as applied basis.

The fact that it might facially apply to other conduct reached by Heller would not seem sufficient to find the statute unconstitutional in this case. One would have to await another case where the statute was applied to conduct actually protected by Heller.
3.27.2009 1:36am
ReaderY:
This of course assumes incorporation applies. But a lower court would appear to be bound by the Supreme Court's Cruikshank decision, unless and until the Supreme Court decides to overrule it.
3.27.2009 1:37am
J. Aldridge:
XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Interesting. The "people" have a right to keep and bear arms and this right was never considered an individual right. Why is it any different under the Federal 2A????????
3.27.2009 1:48am
A.:
Might have something to do with the rest of the words in the sentence you quote.
3.27.2009 2:00am
Dan M.:
Why should there be laws about safe storage? It should be the burden of the state to prove some sort of negligence and not apply a blanket statute. If I have a toddler and store a gun on the floor of his bedroom and it causes an accident, charge the parent with negligent homicide and don't criminalize idiocy that doesn't lead to harm.

If you store a gun where it is easily accessible to a person that doesn't even know what a gun is, then you have no regard for that person's life or your own and no 'safe storage' law is going to change that.

With a safe storage law you criminalize the person who teaches his children about guns and gives them access to those guns in case of emergency.

Tragedies happen but we shouldn't criminalize every act which could lead to that tragedy. A teenager could just as easily grab hold of a kitchen knife and murder his parents, siblings, and neighbors in their sleep. Any law that would mandating the safe storage of knives would be just as silly. I don't need a law telling me not to leave a butcher knife in a child's crib, and I don't need laws telling me where to store my guns.

Any law which does so is pointless, and if that law burdens my right to defend myself, or burdens the right of a child to defend himself or herself, should be found unconstitutional.
3.27.2009 2:15am
J. Aldridge:
Might have something to do with the rest of the words in the sentence you quote.

The 2A talks about common defense as well: A well regulated Militia, being necessary to the security of a free State...
3.27.2009 2:30am
chris m (mail) (www):
See, the MA law is afoul of Heller, but laws like the one in NC would not be... NC law says that any person that leaves a firearm within the ability of a child to get it and the firearm is "in a manner in which it can be discharged" (loaded) then they have committed a crime if the minor uses the gun.

So for example, guns in a gun cabinet are legal even if they are not locked... so long as they are not loaded...

NC does not have any higher of a death rate for minors from guns than any other state, so it must not be a bad law.
3.27.2009 4:48am
Brett Bellmore:

I'm still waiting for the court to explain how liberty of the person also means freedom of the press and speech.



This is a joke, right? Freedom of the press and of speech consists of the liberty of persons with respect to printing and talking. Did you think it was a right of printing presses?
3.27.2009 6:32am
pintler:

those other storage solutions are not reliably accessible, certainly not within 2 seconds


As a counter example, I have seen a device that was essentially a stainless box that enclosed the receiver of a shotgun. It had one of those 5 button locks where you set a pattern - you push the buttons on the end together and then the one in the middle, or whatever, and the box opened, releasing the shotgun. A friend with kids had one bolted to the wall next to the bed.

It's not foolproof - there are hacks that work on those locks, a big prybar, an angle grinder, etc. But it would go a long way towards keeping a curious kid out. It could be easily opened in under 2 sec, by feel.


Why should there be laws about safe storage? It should be the burden of the state to prove some sort of negligence and not apply a blanket statute.


I concur. I don't have kids, and do have a safe. If I have the gun taken apart on the bench during cleaning, and have wandered off to cook dinner while the bore cleaner soaks in, and the elderly neighbor down the street calls and says her toilet is overflowing, and while I am gone a burglar breaks in and steals the gun, I don't think I should be the one to go to jail.
3.27.2009 7:09am
Kharn (mail):
Pintler:
The problem is the reliability of mechanical devices is always suspect when a positive action (the lock must be correctly manipulated and then it must open) is a critical step in a life &death situation. Fail-safe for the homeowner is the lock will open automatically if it fails (batteries, broken spring, slightly-incorrect code, etc) but fail-safe against a thief is the lock will not function.

The two are incompatible and thus legally requiring their use puts the home owner at the mercy of an item that will lead to harm (or the inability to defend against harm) if it fails.
3.27.2009 8:01am
Pol Mordreth (mail):
MS:

But accidental gun deaths of kids . . . are so incredibly rare




You've got your Cramers and you've got your Bellesileses. It's a shame that there are that there are so few honest advocates on either side of the gun debate.



I'm not sure why you don't think that Mr. Cramer is not being honest. Here is the CDC's interactive mortality site. for 2005 (most current year available) there were 127 accidental deaths and injuries to minors (defined as <1 to <18 years old, unintentional, firearms if you want to replicate my search) from firearms. thats all. Unfortunately, it doesn't allow you to split out deaths and injuries. In a population of ~75 million children and 80 million gun owners, that meets my definition of rare.

Regards,
Pol
3.27.2009 8:46am
Pol Mordreth (mail):
I made an error in my last posting. The WISQARS site is deaths, not deaths and injuries.

Regards,
Pol
3.27.2009 8:50am
Dan M.:
And even if you added in the kids who took their parents guns to school and committed mass murder, it's still an incredibly low number.

I shouldn't be mandated to keep guns away from a teenager that I trust just because someone else's mentally ill teenager shot up 15 people at school. If someone's old enough that courts will try him as an adult, then it should be legal for a parent to trust a child that age at home with an accessible gun.
3.27.2009 9:16am
SeaDrive:
Lest someone miss the point. The small number of accidental gun deaths, and small number of gun deaths to children under 15, makes meaningful statistical analysis of the effects of these gun laws difficult or impossible. In the specific case of Connecticut, according to one list (http://www.statemaster.com/state/CT-connecticut/cri-crime), we are 49th out of 51st in gun deaths per 100,000 (i.e. 3rd best/lowest). We are probably talking a rate of about one incident per year in CT.

IANAL, but it sounds to me like the Mass Constitution as quoted by J. Aldridge is irrelevant to the question of guns in the home. It's concerned with guns in the street, you might say, and neither protects nor disallows guns in the home. So the US Constitution would play a more primary role that in a state like, e.g. Connecticut, where the state constitution more closely matches the wording of the Second Amendment.
3.27.2009 10:22am
chris m (mail) (www):
dan makes a good point... in many states, a parent would be charged if their minor child were to get a gun and use it to defend their house... and action that would be totally legal if the shooter were an adult...
3.27.2009 10:24am
alkali (mail):
@Pol Mordreth: Here is the CDC's interactive mortality site. for 2005 (most current year available) there were 127 accidental deaths and injuries to minors (defined as [0-17] years old, unintentional, firearms if you want to replicate my search) from firearms. thats all. ... In a population of ~75 million children and 80 million gun owners, that meets my definition of rare.

That's a rate of 0.17 accidental gun deaths per 100,000 children per year, as compared with a total accidental death rate of about 12.00 per 100,000 children per year. That is indeed pretty rare.

However, if the rationale for keeping a gun readily accessible in the home is to prevent criminal victimization in the home, it would be informative to know the rate at which "home invasion" type crimes occur, and how many of those result in the deaths of household residents.

The total death-by-homicide rate (from all causes) is about 6 per 100,000. The figure is about 2.5 for children (about 1800 per year). I would guess that a very large fraction of homicides of children relate to child abuse. I have no idea how many children are killed in the home as a result of "home invasion" type crimes, but it would not strike me as very surprising if it were less than 0.17 per 100K children per year.

@SeaDrive: We are probably talking a rate of about one incident [i.e., accidental death of child by firearm] per year in CT.

That's probably about right, although again one wonders what the corresponding statistics are for the crimes that guns in the home are meant to prevent. How many home invasions have Greenwich and Darien had within the last 10 years?
3.27.2009 11:38am
Melancton Smith:
J. Aldridge, give it up, collective right interpretation is dead.

I personally don't argue that the subordinate clause is meaningless, but I agree with Scalia that the operative clause is not dependent upon it. I do take my militia responsibility seriously.

Personally, I don't read a right of self defense into 2A. I do, however, read a strict right to keep and bear arms for any lawful purpose.

Self defense is part of our unalienable right to life. It is not granted by the Constitution nor can it be taken away by any lawful authority. Attempts to do so will trigger a self defense response.
3.27.2009 11:39am
SeaDrive:

How many home invasions have Greenwich and Darien had within the last 10 years?


I don't know, but when we (I'm in between, in Stamford) do have one without any drug or gang connection, and/or is in an upscale neighborhood, it's a major news story for weeks. I would guess maybe one every two or three years, but I don't ready the local papers very carefully.

On the other hand, even drug dealers have the right of self-defense against home invasion.
3.27.2009 11:48am
David M. Nieporent (www):
@Pol Mordreth: Here is the CDC's interactive mortality site. for 2005 (most current year available) there were 127 accidental deaths and injuries to minors (defined as [0-17] years old, unintentional, firearms if you want to replicate my search) from firearms. thats all. ... In a population of ~75 million children and 80 million gun owners, that meets my definition of rare.
Moreover, keep in mind that this statistic does not just include situations where kids found and played with their parents' guns -- which is all that gun lock rules could prevent. It also includes situations where they were given a gun purposefully -- let's say, to go hunting with their parents -- or where someone else accidentally shot them, rather than them shooting themselves.
3.27.2009 11:57am
David M. Nieporent (www):
Didn't take until the 60's until the 4th was incorporated?
No. It was incorporated in the 40s. You're probably thinking of Mapp, but that just applied the exclusionary rule to the states.
3.27.2009 11:58am
RTC traveller:
The existence of patchwork gun restrictions across states sickens me. What if my 1A rights were subject to the whims of those who might restrict them from one state to another?

And what happened to the FF&C clause? Why is my driver's license okay to cross state lines, but my RTC permit is not?

I had the opportunity to vote with my feet last year and left MD for PA in order to get an RTC permit.

Now MD gets no income tax from me, and I rarely cross state lines to MD, DE or NJ (no RTC reciprocity), so they (and their businesses) get little to no patronage or sales tax revenue from me.

Aren't these (state-imposed) restrictions impediments to the flow of interstate commerce?
3.27.2009 12:14pm
Clayton E. Cramer (mail) (www):

I'm not sure why you don't think that Mr. Cramer is not being honest.
Because MS doesn't actually bother to look at statistics. The rare occasion when a child (someone under 15) gets access to a gun and accidentally kills himself or someone else with it gets enormous media attention because it is tragic and avoidable--and MS therefore assumes that it is not rare.
3.27.2009 12:14pm
Pol Mordreth (mail):
alkali,
Unfortunately, the FBI UCR does not track home invasions as a seperate category of crime, and so I don't know of any reliable way to compare them on a national basis. There may be a few proxies that we can use, though.

UCR Expanded Homicide table 14: Justifiable homicides by private citizen, 2005: 192, 145 of which were with firearms. So more criminals were killed by private citizens in 2005 than children accidentally killed in 2005. (with firearms)

UCR table 23 - Robbery by location: about 14% of robberies (~42k of ~299k)occurred in a residence.

There are no stats on murder location, but Expanded Homicide data table 9 shows interesting numbers. Of almost 15k murders in 2005, mothers did 123, fathers did 118, and the babysitter did 26. No crosstabs on how many were with firearms.

Oh, and your assumption that most child murders are based on abuse is unlikely in my view. Back to WISQARS, the firearm homicide rate for 0-4 yrs is 0.21, 5 - 9 is 0.23, 10 - 14 is 0.69, but 15 - 19 is 8.29. (all per 100k) the vast majority of firearm homicides of children involve gang members vs other (or putative) gang members.

Regards,
Pol
3.27.2009 12:15pm
SirBillsalot (mail):
Why are collective self-defense and individual self-defense viewed as mutually exclusive? Does anyone imagine that militiamen think "I'm defending my neighbor's home and family, but not at the same time my own"? Or equally, are soldiers in a conventional army not allowed to defend their own lives? Of course they are. Collective self-defense includes individual self-defense.

Or think of international law as an analogy. When a nation (call it "France") exercises the right of collective self-defense in a war with allies, is it no longer collective self-defense if the actual fighting happens to take place in France?

Back to collective self-defense in the community. If my neighbor shoots a burglar invading his house, I view that act as defending me and the rest of the community as well as himself against a common threat. It would be the same as if he shoots a burglar trying to break into my house.
3.27.2009 12:22pm
Clayton E. Cramer (mail) (www):

in many states, a parent would be charged if their minor child were to get a gun and use it to defend their house... and action that would be totally legal if the shooter were an adult...
California had a situation some years ago, shortly after their safe storage was passed. The gun was properly locked up. The psychotic with a pitchfork killed at least one child because the teenaged girl in the house didn't have access to the handgun that she knew how to use.

Back before the safe storage law, I remember reading a newspaper account of a 15 year old girl in West Oakland who drew from under her pillow and shot to death a guy who had broken into her room apparently with the intention of raping her. I'm horrified that a 15 year old has to sleep with a gun under her pillow, but that's Oakland.
3.27.2009 12:25pm
alkali (mail):
[For interest's sake, here is cleaned-up OCR text of the opinion. I have edited the name of the defendant and his minor son and their address for "Google privacy" reasons. The map link to the house address goes to a nearby intersection and not to the house for similar reasons. A local newspaper writeup of the incident may be found here.]

COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, SS

DISTRICT COURT DEPARTMENT
BARNSTABLE DISTRIC COURT
No. 0825 CR 2026

COMMONWEALTH
VS.
RICHARD R. B_____

DECISION

The facts of the instant case are not in dispute and are drawn from the memoranda filed by the parties.

On Wednesday, June 25, 2008 at approximately 1:25 p.m. Sergeant Murphy of the Sandwich police department responded to ______ Road. Upon his arrival he met the defendant's son, 12 year old ____ B_____, and asked him if he had a gun. ____ stated that he had been in possession of his father's gun and had returned it to his father's bureau drawer. His father was not at home. ____ took Murphy to his father's bedroom. Murphy opened the drawer and observed a Sig Sauer P226 .40 caliber handgun. The gun had no trigger lock, the slide was forward, there was no round in the chamber and the magazine was not in the gun. Sergeant Murphy took possession of the gun. Richard B_____, the defendant and ____'s father, is a member of the Massachusetts State police. He was subsequently charged with a violation of G.L. c. 140, sec. 131L. On November 24, 2008 the defendant filed a motion to dismiss the complaint. A hearing was conducted pursuant to the motion on February 4, 2009.

In his motion, the defendant asks the Court to find that G.L. c. l40 sec. 131L is unconstitutional based on District of Columbia v. Heller, 128 S.Ct. 2183 (2008), in which the United States Supreme Court determined that the trigger lock requirement provision contained witbm a District of Columbia statute violated the Second Amendment of the Unjted States Constitution. The D.C. statute mandated that any firearm kept in the home be "unloaded and disassembled or bound by a trigger lock or similar device ...", thus rendering it inoperable. D.C. Official Code, sec. 7-2502.02. The Court held that such a restriction on firearms in the home "makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." Heller, supra, at 2818.

The Massachusetts statute states that "(i)t shall be unlawful to store or keep (emphasis supplied) any firearm, rifle or shotgun ... in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user." G.L. c.140 sec.131L. The locking mechanisms are the functional equivalent of those enumerated in the D.C. statute struck down in Heller.

In Heller, the Court held that the Second Amendment not only protects an individual's right to possess firearms but that the right requires that the firearm be available for "the purpose of immediate self-defense". Heller, at 2822. The Massachusetts statute mandating lock boxes or similar devices would frustrate an owner's ability to immediately access an operable weapon.

Although the statute exempts firearms that are "carried" or "under the control of the owner" from the requirement that they be locked, the statute applies to the lawful owner of a fireann even when he is at home. People can be subject to prosecution whether they are home or not. The term "under the control of the owner" is a question of fact and subject to interpretation. Any ambiguity in the statute as applied to a person lawfully keeping a firearm in the home must be resolved in favor of the holder of the right. Legislation requiring an owner to store firearms in a place inaccesaible to children or unauthorized persons would satisfy the Supreme Court's holding in Heller and protect the safety of others.

In light of the foregoing, the Court finds that, based on the Supreme Court's decision in District of Columbia v. Heller, G.L.c. 140, sec. 131L is unconstitutional. Accordingly, the motion to dismiss is ALLOWED.

Joan E. Lynch, Justice
February 19, 2009
3.27.2009 12:31pm
Clayton E. Cramer (mail) (www):

UCR Expanded Homicide table 14: Justifiable homicides by private citizen, 2005: 192, 145 of which were with firearms. So more criminals were killed by private citizens in 2005 than children accidentally killed in 2005. (with firearms)
FBI justifiable homicide stats are also known to seriously deficient, by a number of different measures, understating civilian defense uses by at least 2/3. There are multiple reasons for this:

1. There is a formal distinction between justifiable homicide and excusable homicide, one that relatively few people understand. The FBI only includes justifiables.

2. FBI is dependent on police department reporting, which appears to be weaker on non-crimes than on crimes. They tend to underreport police justifiable homicides, too, and probably for the same reason.

3. UCR is based on initial reports. There are a very large number of cases that are filed initially as a murder or manslaughter, but as more evidence is gathered, prosecutors decide that the shoot was valid, a grand jury refuses to indict, or a jury refuses to convict, this doesn't follow the initial report. Based on Time magazine's year later follow-on to their "Seven Deadly Days" propaganda piece of 1989, the number of defensive uses more than doubled.
3.27.2009 12:32pm
PeterWimsey (mail):
No. It was incorporated in the 40s. You're probably thinking of Mapp, but that just applied the exclusionary rule to the states.


Even though Mapp is from the 60's, it's now (I believe) 48 years old. For some reason, the 60's keep moving farther and farther into the past. :(
3.27.2009 12:33pm
Clayton E. Cramer (mail) (www):

Back to WISQARS, the firearm homicide rate for 0-4 yrs is 0.21, 5 - 9 is 0.23, 10 - 14 is 0.69, but 15 - 19 is 8.29. (all per 100k) the vast majority of firearm homicides of children involve gang members vs other (or putative) gang members.
It's likely that most of those firearms homicides of the 0-9 age range are gang drivebys that were aimed at someone else, or were not aimed at anyone in particular.

In some inner city neighborhoods in the 1980s, it was common for mothers to put their little ones to bed in the bathtub, in the hopes that the tub would stop stray bullets. That's the sort of insanity that drives gun control efforts. In a small number of zipcodes, there is a very, very serious problem with criminals and guns (as well as with criminals and knives, feet, and every other weapon you can imagine).

In the rest of America, guns aren't particularly a problem. This suggests that the cultural problems that drive this insanity in a few zipcodes needs repair. But to do that would be to admit that there is something incredibly broken in some black neighborhoods (and to a lesser extent, some Hispanic neighborhoods). That's just not PC, so it is easier to pretend that guns--which are commonly owned in the vast majority of American zipcodes, with murder rates comparable to similar areas of Canada and Europe--are the problem.
3.27.2009 1:22pm
Kirk:
MS, quibbling about the meaning of "rare", when accidental firearm deaths are in fact quite low for all age groups, is hardly the same thing as falsifying or inventing data for a "scholarly" work.

Chris M, here in WA we don't have any kind of safe storage law that I'm aware of, and we don't have a higher accident rate than NC or anywhere else.
3.27.2009 1:35pm
SeaDrive:

It's likely that most of those firearms homicides of the 0-9 age range are gang drivebys that were aimed at someone else, or were not aimed at anyone in particular.


A hypothesis in advance of the facts.
3.27.2009 1:42pm
alkali (mail):
@Pol Mordreth: Thanks.

Oh, and your assumption that most child murders are based on abuse is unlikely in my view. Back to WISQARS, the firearm homicide rate for 0-4 yrs is 0.21, 5 - 9 is 0.23, 10 - 14 is 0.69, but 15 - 19 is 8.29. (all per 100k) the vast majority of firearm homicides of children involve gang members vs other (or putative) gang members.

The 2.5 homicide deaths (per 100k per year) statistic relates to all homicides, not just firearm homicides. I was trying to establish an upper bound for the mortality risk to children of "home invasions." However, I suspect you are correct that the largest share of child homicide victims are teenagers killed by other teenagers and young adults on the streets.

The comparison I am really interested in is:

Accidental firearm death rate for children that could plausibly be prevented by trigger locks and similar mechanisms = something less than 0.17, which is the total accidental firearm death rate for children (per David Nieporent's comment, some accidental firearm deaths -- e.g., hunting accidents -- are not plausibly preventable by trigger locks, and surely even some accidents of the type one would hope to avoid with trigger locks would happen anyway)

Death rate of residents of households that are subjected to "home invasion" type crimes = hard to know -- the Expanded Homicide Data table shows 86 burglary related killings for 2007, so that would be something like .03 if we used that as a proxy

(Actually, what you'd really want to know before enacting a trigger lock law is not how many unarmed people get killed in their homes, but how many armed people who don't get killed would have been killed because they couldn't take off the trigger lock in time, but that is a level of detail we are not going to have.)

Having given some thought to the foregoing, I would say:

1. It is probably not true that the risk of accidental child firearm death is much greater than the risk of being killed in one's home by a criminal because of lack of access to a weapon. (I had previously believed that the accident risk was signficiantly greater.)

2. It is also probably not true that the risk of being killed in one's home by a criminal because of lack of access to a weapon is much greater than the risk of accidental child firearm death. (I had previously believed that the incidence of "home invasion" type crimes was quite small; the data I have looked at in connection with commenting here confirms my view.)

3. The two risks are probably comparable in magnitude, and probably depend a great deal on personal circumstances (and, I'm guessing, in less than completely predictable ways).

4. The chief value of trigger lock laws is probably the public educational value of prosecutions, in that such prosecutions draw attention to the danger of negligent handling of guns. The case that is the basis for this post might be an example of that (see the local news coverage for why).

5. In view of #3, Heller's holding with regard to trigger lock-type laws seems wildly misguided to me. (N.b. I am not referring to the underlying individual vs. collective right holding, which is another argument entirely.)
3.27.2009 1:53pm
Pol Mordreth (mail):
@alkali,

Death rate of residents of households that are subjected to "home invasion" type crimes = hard to know -- the Expanded Homicide Data table shows 86 burglary related killings for 2007, so that would be something like .03 if we used that as a proxy


Not to pick nits, but wouldn't robbery be a better category than burglary? IANAL, but isn't robbery (loosely) defined as taking from someone, and burglary where you didn't think anyone was there? That changes the analysis a little, to about .40 per 100k.

I would have to agree with your points 1 through 3, though.

As far as personal circumstances, your risk #1 would be pretty directly correlated to training with firearms at a young age, versus the 'forbidden fruit' factor with children. Anecdotally, growing up I started shooting at about age 5, and had my first rifle at 10. There were unsecured, loaded firearms all over my home, and I knew where thay were and how to use them all. I was used to them, though, and also knew what they could do to a living creature. In my view, education and familiarity with firearms is the surest way to keep an accidental discharge from occuring while retaining your ability to respond with force if necessary.

I would also have to say that the risk #2 is highly correlated with where you live. Unfortunately, it seems that the riskier the area, the more restrictions are put on law abiding citizens. I don't presume to claim which way the correlation runs. (whether the criminals are emboldened becuase the population is disarmed, or whether the politicians decided to make unhelpful restrictions on firearms in response to rising crime. I feel that its a cycle of both, but I have no data to back that up)

I don't see how a trigger lock law is beneficial in the way you claim. Here in Tennessee, we get the same value from the media reporting of accidental deaths from firearms without having a trigger lock requirement. I don't see how prosecuting a grieving parent for a mistake in judgement helps the public.

I am enjoying this discussion, though. Thanks!

Regards,
Pol
3.27.2009 2:39pm
pintler:

The two risks are probably comparable in magnitude, and probably depend a great deal on personal circumstances


Boy howdy. Consider the relative risks of allowing these folks access to guns (the image is from this page, relative to some 17 year old rising star in the illicit pharmaceuticals market.
3.27.2009 2:54pm
Pol Mordreth (mail):
@alkali,

2. It is also probably not true that the risk of being killed in one's home by a criminal because of lack of access to a weapon is much greater than the risk of accidental child firearm death. (I had previously believed that the incidence of "home invasion" type crimes was quite small; the data I have looked at in connection with commenting here confirms my view.)


I must have misread that the first time. I admit that there is no way of knowing with the data I can find of the actual risk of being murdered in a home invasion, but when there were 52k residential robberies in 2007, and almost 1000 robbery related murders, I would submit that the risk of being murdered in a home invasion is at least a factor of 10 higher than the risk of an accidental child death from a firearm. Granted, the data doesn't split out the residential robbery related murders from all the others.

Regards,
Pol
3.27.2009 2:55pm
alkali (mail):
@Pol Moldreth: Not to pick nits, but wouldn't robbery be a better category than burglary? IANAL, but isn't robbery (loosely) defined as taking from someone, and burglary where you didn't think anyone was there? That changes the analysis a little, to about .40 per 100k.

IIRC, robbery is stealing from a person (e.g., mugging), and burglary is stealing from a building, occupied or unoccupied. So that's why I used that, although I could be wrong.

As far as personal circumstances, your risk #1 would be pretty directly correlated to training with firearms at a young age, versus the 'forbidden fruit' factor with children.

I think it's not necessarily that predictable. In the Massachusetts case that gave rise to this post, the father was a state police officer, so the boy would have been familiar with guns and, I'd guess, appropriately cautioned about not touching them without permission.

Unfortunately, it seems that the riskier the area, the more restrictions are put on law abiding citizens. I don't presume to claim which way the correlation runs. (whether the criminals are emboldened becuase the population is disarmed, or whether the politicians decided to make unhelpful restrictions on firearms in response to rising crime. I feel that its a cycle of both, but I have no data to back that up)

In Massachusetts the (fairly restrictive) gun laws are the same statewide, so any variations in risk of crime are driven by other things. Overall Mass. measures up pretty well on crime statistics. Note that I'm certainly not claiming any cause and effect there -- New Hampshire, right next door, has far less restrictive gun laws, and its crime statistics are slightly better.

I don't see how a trigger lock law is beneficial in the way you claim. ... I don't see how prosecuting a grieving parent for a mistake in judgement helps the public.

I tend to agree with with the latter point. I think that the prosecution in the Massachusetts case that gave rise to this post was probably fair: if you believe the local news coverage, the boy took his father's gun, which was stored right next to live ammunition, pointed it at a neighbor child and pulled the trigger (at which point presumably a neighbor called police). It was unloaded, but the situation could have been a tragedy. Putting aside the rightness or wrongness of trigger lock laws generally, it doesn't seem like the worst thing in the world for the father to be subject to a misdemeanor prosuection under these circumstances.

I am enjoying this discussion, though.

Likewise!
3.27.2009 3:16pm
Neo (mail):
Sometime it seems the the US Constitution is meant to be "secured in a locked container" and "store in a place inaccessible to children or unauthorized persons."
3.27.2009 3:19pm
Dan M.:
I certainly don't think we need trigger lock laws so that people will be educated by prosecutions. We need more gun safety education in schools. And we need informed media coverage whenever tragedies happen; we don't need hysterics.

And we don't need laws forbidding children from firing machine guns; we need parents who know that an uzi isn't the best choice.
3.27.2009 3:23pm
alkali (mail):
@Pol: Following up your latter point, I'd guess most "robbery" homicides are homicides in the course of a street mugging. But even if that figure of 1000 robbery homicides includes any home invasion murders, the figure of 100+ accidental child firearm deaths seems like it would be comparable to that subset. (Incidentally, I would have guessed that it would be easier to gather this kind of information, but I guess not.)
3.27.2009 3:31pm
Pol Mordreth (mail):
@alkali,

I think it's not necessarily that predictable. In the Massachusetts case that gave rise to this post, the father was a state police officer, so the boy would have been familiar with guns and, I'd guess, appropriately cautioned about not touching them without permission.

Agreed that its not always that predictable, but I wouldn't assume that the father, just because he is a cop, taught safe handling and respect for firearms to his son. I'm reminded of the youtube video of the idiot cop giving a lecture on guns to an elementary class in Atlanta (i think) and shot himself in the foot due to negligent handling. It was funniest because he had just gotten done saying that he was the only person in the room professional enough to handle a pistol. He didn't bother to unload it properly, and then for whatever reason, pulled the trigger.

It's not just a misdemeanor conviction, though. If he wasn't a cop, he would be forever barred from possessing a firearm in MA. It would be an instant revocation of his FID and LTC. I think that the better issue is that a 12 yr old with (seemingly) poor impulse control was left home alone. Also, while Mass gun laws are uniform statewide, getting a permit to own a firearm is not. They are 'may issue, at the discretion of the local sherrif. Unless you are a friend to the city PD, there is little chance of getting a permit to own a firearm in Boston, or most places on the cape. Western mass, not so hard.

Regards,
Pol
3.27.2009 3:39pm
H Tuttle:
>>Yes, I am disgusted that there are irresponsible people that leave guns lying around the house where a kid (or a burglar) can get to them.<<

Where a burglar can get them? So I have to safeguard everything in my house in a fashion that a burglar (regardless of how determined) can't get them? Sorry, but that's as they say, nuts.

I certainly don't "leave guns lying around", but my three girls (aged 12 and 10) can immediately recite the 3 fundamental rules of gun safety and I periodically drill and quiz them on gun safety and let them hold my rifles and pistols (unloaded) so that they become "real" as potentially lethal weapons and not the nebulous "gun" phantom menace portrayed by gun-control advocates.
3.27.2009 3:42pm
alkali (mail):
@Pol: The "may issue" practice and the eccentricities of local Mass. PDs introduces some lack of uniformity, the practical effect of the restrictive Mass. gun laws is to substantially reduce everywhere the percentage of households that keep guns at home. Accordingly, I don't think any variation in crime rates across Mass. has to do with how many people have permits to keep guns in the house, because that's pretty low everywhere.
3.27.2009 3:58pm
Pol Mordreth (mail):
@alkali, I understand your point, although I disagree. I have been told by Mass residents in the past that the western counties have a substantially higher rate of FID's and legally possessed firearms than the eastern shore. I'll try to find some way to document this, as all I have is third-hand, albeit from a MA sherrif's deputy.

Regards,

Pol
3.27.2009 4:14pm
geekWithA.45 (mail) (www):
>>>Interestingly, the court seemed to assume that the Second Amendment applies to state laws -- what lawyers call the "incorporation" issue -- which is something Heller pointedly declined to resolve.

Haven't we seen other examples of state courts referencing the bill of rights as being operative in their jurisdiction in their decisions all throughout the history of the Republic? Nunn v. State of George, 1846 leaps immediately to mind re: 2nd amendment.

Does this present us with some opportunity to show that the Commonwealth of Massachusetts has conceded incorporation?
3.27.2009 4:38pm
SeaDrive:

They are 'may issue, at the discretion of the local sherrif. Unless you are a friend to the city PD, there is little chance of getting a permit to own a firearm in Boston, or most places on the cape. Western mass, not so hard.


The technical term for this is "equal protection of the law."
Not!
3.27.2009 4:41pm
JohnMc (mail) (www):
David Welker:

Oh, so you must want to bring back slavery, right? Because for the the majority of the first 100 years, slavery was legal?
------------------------------------------------------------

First that is just a red herring argument. Nobody has suggested that. Besides if you went back a hundred years thats 1909, NOT 1809.

But have we not just seen the enactment of slavery last week by the House? For what can you call the obligatory 90% confiscation of ones wages? Slavery is not just defined as the possession of one person over another but also the confiscation of the fruits of their labor.
3.27.2009 4:41pm
Clayton E. Cramer (mail) (www):
<blockquote>
Yes, I am disgusted that there are irresponsible people that leave guns lying around the house where a kid (or a burglar) can get to them.

Where a burglar can get them? So I have to safeguard everything in my house in a fashion that a burglar (regardless of how determined) can't get them? Sorry, but that's as they say, nuts.
</blockquote>I'm not supporting such a law. They don't work for child safety, and there are circumstances where they are a bad idea. I'm just observing that it is a bad idea to walk into your house while a burglar is inside, who has just discovered that you have a gun. He might use it on the way out.
3.27.2009 5:05pm
PeterM:
If you want more information on MA laws, check the website for GOAL (Gun Owner's Action League).

And for the record, it's the local chief of police or the State Police (for nonresidents) that issues licenses in MA.
3.27.2009 5:33pm
Melancton Smith:
If the trigger lock is one of those devices that locks inside the trigger guard I don't consider the use of such as safe storage. Most guns can be locked and loaded with it on and then you have an unsafe situation taking it off.
3.27.2009 5:58pm
Hucbald (mail) (www):
I have a .38 snub loaded and on my dresser by my bed. That IS proper gun storage: Within arm's reach if I need it. Then, there's the shotgun in the closet...
3.27.2009 7:56pm
ShelbyC:

Most guns can be locked and loaded with it on and then you have an unsafe situation taking it off.



Can't you also clear the gun with it on?
3.27.2009 8:03pm
Alec Rawls (mail) (www):
How the hell did the court come to THIS part of the conclusion:
Legislation requiring an owner to store firearms in a place inaccessible to children or unauthorized persons would satisfy the Supreme Court's holding in Heller.
This after quoting Heller's finding that:
the Second Amendment not only protects an individual's right to possess firearms but that the right requires that the firearms be available for "the purpose of immediate self-defense."
It is absurd to say that an exception allowing a person to carry a weapon unlocked is sufficient provision to meet this requirement. What if your home defense weapon of choice is a shotgun (as mine is)? My right to defend myself is unimpaired if I am allowed to carry the shotgun unlocked, without being allowed to put it down unlocked? This kind of infringement would never even be contemplated for other individual rights (well, except for political speech around election time).

As for incorporation, according to the phrasing of the 2nd, this is the one right that ALWAYS applied to the states. Instead of saying "Congress shall pass no law," it simply says, "the right to keep and bear arms shall not be infringed," implying that it cannot be infringed by any level of government.
3.27.2009 8:24pm
whit:

@alkali, I understand your point, although I disagree. I have been told by Mass residents in the past that the western counties have a substantially higher rate of FID's and legally possessed firearms than the eastern shore. I'll try to find some way to document this, as all I have is third-hand, albeit from a MA sherrif's deputy.




former MA cop here.

absolutely true.

i used to live in a small town where the police chief (former new yorker and total liberal) didn't believe in concealed carry. he would only issue me a "target practice" license. those allow you to carry the gun only to and from the range, basically not allowing concealed carry. the GOOD license is the "protection of life and property". he said literally "i don't think you have established a NEED for one".

classical patronizing liberal.

i moved two towns over during the summer, and the police chief issued me one for protection of life and property.

this is so arbitrary as to be absurd.

welcome to the liberal utopia of MA
3.27.2009 8:25pm
Porcupine (www):
One of the purpose of the 2nd Amendment's protection is self defense from criminals. Heller rightly ruled that a gun can't be used for that purpose if it's locked up. This is a good decision.

Seriously, why would I keep a self-defense gun that's locked up? I wouldn't do that anymore than I'd keep a book glued shut.
3.27.2009 8:42pm
Porcupine (www):

welcome to the liberal utopia of MA


You should come across the border and join us in New Hampshire! http://freestateproject.org/
3.27.2009 8:43pm
whit:
porcupine, i am in WA. that would be a long trip
3.27.2009 8:52pm
J. Aldridge:
Melancton Smith said: "J. Aldridge, give it up, collective right interpretation is dead."

I'll let history be the interpreter and not the NRA or their employed agents. Besides, Scaila has never appeared to be so sure himself.
3.27.2009 8:56pm
J. Aldridge:
Brett Bellmore said: "This is a joke, right? Freedom of the press and of speech consists of the liberty of persons with respect to printing and talking."

WOW, really???? I'm going to file a writ of habeas corpus next time I feel my freedom of speech has been tampered with!
3.27.2009 9:00pm
David McCourt (mail):
As a gun owner, life-long political conservative, and believer in the 2nd amendment and individual gun rights, I have to say that this statute strikes me as a completely reasonable restriction on a Constitutional right. Only an irresponsible fool would keep his guns unlocked and lying about, loaded, especially if he has children in the house. As a big city resident who's suffered a 4:00 a.m. attempt at home invasion and burglary -- the offender is currently doing six years -- I believe that nothing in this statute prevents a reasonably competent person from defending his home.

The officer should be dismissed from his job for grossly bad judgment, whether he has the "right" to be so as a private citizen or not.

Sad to say, it looks like the 2nd Amendment is going to get the same, otherwordly, naive, extremist treatment from the judiciary as have many of the rest of our "rights" under other amendments. There's nothing conservative about regarding the Consitution as a set of geometry theorems, with perfectly straight lines to be drawn out into infinity. When, I wonder, will American adjudication overthrow its infatuation with Continental systems-making, and re-embrace English pragmatism and the distrust of ideology.
3.27.2009 9:11pm
peter38a (mail):
I'll put my oar in the water and an unpopular oar I expect it to be. LOL

1. For the greater part of the history of this country it would have been difficult to find a home that 'didn't' have a firearm, yet people were at least as safe from 'accidental' shootings as today. Please read Kleck for some insight as to the positive effects private ownership of firearms provides our communities.

2. Children? The greatest vectors of death and injury for children are bicycles, automobiles and swimming pools. When these 'Big Three' are removed other conversations would be more welcome.

I am personally fed up with new laws and restrictions based on "…if it will save the life of one child." I am not interested in books, movies or just the general adult pursuit of happiness being restricted by an argument that has no firewall. Based on "…save the life of…" there is nothing that can't be forbidden, locked out of reach, banned or destroyed.

If you have children you are responsible. If you act irresponsibly you are culpable.

3. Law makers feel that they must churn out as many laws as possible and in their arrogance there isn't anything that they don't think they can fix. About ten years back, in California, it was proclaimed that the legislature had passed 1700 new motor vehicle laws. All those years, all the miles driven, all the laws in place but we had still been doing 1700 things wrong!

Firearms and sex are two of their favorite pastimes for fixing. Doesn't anyone remember, such a very short time ago, all the sexual activities that were "unlawful" for married couples in their own bedrooms? Panting and red faced from all that good work the legislatures then extend their meddlesome and onerous wisdom to firearms? It's self evident that a good deal of what legislatures think is their business is in fact beyond their ken.

All laws, all, should have a sunset clause. These high-flyers in the legislative houses have too much time on their hands.
3.28.2009 2:12am
David McCourt (mail):
Today's firearms can be left lying around loaded, for months or years, and go off at little more than a casual handling by a child. Colonial era firearms would have to be loaded: half-cocked; a charge of powder poured down the barrel; ball and wadding rammed down same; powder applied to the flashpan; full cocked. A much more deliberate act, beyond the capacity of small children, and taking far longer to accomplish than the unlocking of any modern gun lock, or the opening of a gun safe.

Peter38a, I don't disagree at all with your general comments, but these are legislative choices, sometimes bad legislative choices. We as a self-governing people need to police our legislators, and oust them at the ballot box if we don't like what they do. What I object to is making a fetish of constitutional rights, ACLU-style, and pretending that those rights embody all our own favored legislative choices. Regulation can be bad without being forbidden by the constitution.
3.28.2009 9:33am
Clayton E. Cramer (mail) (www):

Today's firearms can be left lying around loaded, for months or years, and go off at little more than a casual handling by a child. Colonial era firearms would have to be loaded: half-cocked; a charge of powder poured down the barrel; ball and wadding rammed down same; powder applied to the flashpan; full cocked. A much more deliberate act, beyond the capacity of small children, and taking far longer to accomplish than the unlocking of any modern gun lock, or the opening of a gun safe.
Except guns were often left loaded (since they weren't very useful unloaded against sudden attack). My book Armed America lists a number of examples of accidental firearms deaths of children in Colonial Massachusetts that were the result of children left alone with loaded firearms.

The objection to D.C.'s gun control law in this area was not that it required guns to be kept secured when adults were away. It was that it required them to be kept locked up or disassembled even when an adult was present--thus preventing their use in self-defense. At least one person was prosecuted by D.C. for using a gun in self-defense against someone who forced entry, because the gun had obviously not been stored according to the law. The objective of the law, because it was so broad, was to prevent defensive use of guns.

I do not believe that a gun storage law designed to keep guns out of the hands of unsupervised children (such as Massachusetts or California has) would have been struck down. I also don't think that even these constitutional laws make any sense.
3.28.2009 1:07pm
Clayton E. Cramer (mail) (www):

Today's firearms can be left lying around loaded, for months or years, and go off at little more than a casual handling by a child. Colonial era firearms would have to be loaded: half-cocked; a charge of powder poured down the barrel; ball and wadding rammed down same; powder applied to the flashpan; full cocked. A much more deliberate act, beyond the capacity of small children, and taking far longer to accomplish than the unlocking of any modern gun lock, or the opening of a gun safe.
Except guns were often left loaded (since they weren't very useful unloaded against sudden attack). My book Armed America lists a number of examples of accidental firearms deaths of children in Colonial Massachusetts that were the result of children left alone with loaded firearms.

The objection to D.C.'s gun control law in this area was not that it required guns to be kept secured when adults were away. It was that it required them to be kept locked up or disassembled even when an adult was present--thus preventing their use in self-defense. At least one person was prosecuted by D.C. for using a gun in self-defense against someone who forced entry, because the gun had obviously not been stored according to the law. The objective of the law, because it was so broad, was to prevent defensive use of guns.

I do not believe that a gun storage law designed to keep guns out of the hands of unsupervised children (such as Massachusetts or California has) would have been struck down. I also don't think that even these constitutional laws make any sense.
3.28.2009 1:07pm
Clayton E. Cramer (mail) (www):

I'll let history be the interpreter and not the NRA or their employed agents.
Mr. Aldridge, since there are many dozens of decisions of the courts recognizing that the Second Amendment protects an individual right that predate the formation of the NRA--and until the 20th century, absolutely none taking your position--your position is absurd.
3.28.2009 1:09pm
Melancton Smith:
He wants to shape future history.
3.28.2009 1:37pm
Melancton Smith:
He wants to shape future history.
3.28.2009 1:37pm
Ben S. (mail):
One thing I never understood---and which Heller did not, in my mind, adequately explain---is how a collective right to bear arms is any right at all?

The Constitution already gives power to Congress to raise an army to protect the nation as a whole from foreign threats. It seems to me, then, that Second Amendment's reference to militia is predicated on the assumption that an organized militia is important to protect against the tyranny of an oppressive central government.

But if the Second Amendment and state analogs mean only that one has the right to bear arms as part of such an organized militia, then who decides what is a "militia" and whether it is sufficiently organized? If it is the government (be it state or federal), then we have effectively undermined the very purpose for the militia in the first place. It is like asking the government to ratify a militia armed against the government.

It seems, then, that for the Second Amendment and similar provisions to have any meaning, collectively or otherwise, there must be an unalienable right for individual citizens to bear arms so that they may collectively form a militia at their choosing. In other words, the collective right to bear arms as part of a militia necessarily depends on the individual right to bear arms.

This, alone, seems like sufficient reason to deny the collective-right argument, even without having to mention the enormously important need for individual self-defense or having to resort to textual arguments.
3.28.2009 2:28pm
David McCourt (mail):
Ben S., What would you make of "the right of the people peaceably to assemble"? Individual, perhaps, but also collective, by definition, as one cannot "assemble" by oneself.
3.28.2009 3:08pm
Melancton Smith:
We have an individual right to collectively assemble.

In a way it is incorrect to say it is a collective right at all. Wouldn't that mean we'd all have to get together as one? Isn't the main purpose to allow dissent?
3.28.2009 3:57pm
pintler:

One thing I never understood---and which Heller did not, in my mind, adequately explain---is how a collective right to bear arms is any right at all?


I'm no expert, but my impression was that the collective rights folks viewed it as a states rights thing - the 2nd amendment guaranteed that the federal government couldn't prevent Delaware from having a state militia, but could bar arms possession by citizens of Delaware who weren't in the militia.
3.28.2009 7:13pm
peter38a (mail):
Allow me to come at this discussion again but from an oblique. Imagine for a second, the Eighteenth century, a universe of kings, where it was common knowledge that the common man was barely a step ahead of, nor could be trusted any further than the beasts of the field. All except royalty and their sycophants had to be awed by pomp, regulated and the smallest facets of their lives measured out to them from on high.

A coming together of men in America assert however that this homely, artless rough-trade with dirty hands and faces could not only form a government but maintain one; that the 'ignoble' could act, in sum, nobly. Witnessing the French Revolution the operant word here is "could" not "would". A revolution of trust wherein the extenders thereof did wager their very lives and fortunes! Virtually everything known to be true in the political universe of royalty was contradicted by the US Constitution: Loosing every form of accepted control of this fractious stratum of humanity, they could, nay, were encouraged to speak their minds, assemble peaceably at their own discretion, remain armed as they saw fit and so very much more as we well know.

As I'm sure a little thought on the subject will reveal the greatest revolution was in the freeing of ideas and freedom to assemble. Think and say freely to your fellows; incredible! Proof of this lays open in present day Europe where the populations are infantilized by the elite, wherein so many ideas and words are made "outlaws". Of course as any thoughtful person knows, education, ideas, is always found dangerous and subversive by establishments of one order or another.

Trusting their fellow citizens with the explosively dangerous power to think, speak and act is anyone on this board really going to tell me that Founding Fathers flinched at the idea of personal ownership of an inanimate object, a firearm???? Shoeless Joe say it isn't so. LOL

P.S. I'll same some keyboard time… all 'semi' automatic weapons can be made 'automatic' with a file. I believe it is still true that you may own any machinegun ever made if you pay the right governmental authority $300 for a certificate of whatever title.
3.28.2009 7:56pm
Kirk:
Peter, you think wrong: a private citizen can only only own a machine gun produced before 1986, and only if he resides in a state that doesn't prohibit such possession, and only if the chief law enforcement officer of the jurisdiction he lives in signs off on it.
3.28.2009 10:44pm
Clayton E. Cramer (mail) (www):

I'm no expert, but my impression was that the collective rights folks viewed it as a states rights thing - the 2nd amendment guaranteed that the federal government couldn't prevent Delaware from having a state militia, but could bar arms possession by citizens of Delaware who weren't in the militia.
Yes, and if there were no historical evidence one way or the other, it would be a logical reading (although not the only logical reading) of the Second Amendment. However: there is plenty of evidence against such a reading.

Roger Sherman of Connecticut actually proposed an explicitly states' rights amendment; it went nowhere--not even officially recorded. Virginia also made an explicit request for such a guarantee; it was voted down--unlike the Second Amendment, which is clearly derived from the Virginia request. (The Heller brief by Academics for the Second Amendment to which I contributed pointed these out.) An attempt to add "for the common defence" to the Amendment (which, if added, would be suggestive, but not conclusive proof, of the states' right claim) was voted down in the Senate.

Multiple contemporary sources argued that the proposed Second Amendment protected an individual right to keep and bear arms. Not a single contemporary source takes the collective rights view. You can't find a court decision or even a scholarly discussion of the Second Amendment that argues that it was a collective or states' right until the beginning of the twentieth century.

Now what's really bizarre is when this same states' rights argument--that the right to keep and bear arms protects the right of states to have military units to defend themselves against the federal government--gets used to analyze a state constitutional guarantee, as in City of Salina v. Blaksley (Kan. 1905). In that case, the Kansas Supreme Court argued that the Kansas Constitution's RKBA guarantee protected the right of the state to arm the militia against state tyranny. Clearly, the Kansas Constitution did not in any way limit the power of the federal government. This would be a guarantee of the right of the Kansas government to organize the militia to fight the Kansas government. This truly would be a "suicide compact"!
3.29.2009 12:56am
peter38a (mail):
Two more cents to add… if I may professor?

The colonists just having won their freedom, without much of a stretch saying by the skin of their teeth, were leery of a new 'central authority', ergo, the first ten amendments to reassure them. Can anyone imagine that what the authors of the 2nd Amendment were 'really saying' was: As far as the firearms you have always personally owned, won your freedom with and expected to always have ownership of and keep in your home… No! We want you to turn them all into a central arms facility where they will be kept safe! If you form a militia you can take them out and march around for a while but then they have to be turned back in. I submit that such an "interpretation" of government authority would have led to a lot of rail-riding behind which would have been trails of tar and feathers.

You can restrict firearms ownership, you can confiscate them but you cannot do it using the authority of the 2nd Amendment no matter what snaky way you twist it.

May I suggest reading "Drums Along the Mohawk", it was written in the '30s and has a wonderful feel for that era.
3.29.2009 1:31am
peter38a (mail):
Kirk, thanks for that clarification. But may I submit that all the great machineguns were produced before '86. I had a chance to fire a Thompson Submachinegun when I was in Las Vegas and I can tell you it was a near orgasmic experience. LOL
3.29.2009 1:41am
David McCourt (mail):
peter38a,

The situation you describe in your long paragraph is in fact the English one, where the political nation ("the people" there being the aristocracy, broadly understood), having deposed a king (in 1689) -- though they would not call it a deposal -- made sure that they, the governors, would be allowed to keep and bears arms, the better to resist any future tyranny. But the idea of giving the common people such a right was anethma to them, which was exactly why they feared a standing army -- landless laborers given guns would overthrow the social order, or be used by a king to impose tyranny.

Now I don't believe that the U.S. situation was the same as the English -- I believe the 2nd Amendment does speak of an individual right. But my paragraph above might have applied to the U.S., if you put in "citizen" for "aristocracy" and "governors," and put in "indentured servants" and "slaves" for "common man."
3.29.2009 1:52am
J. Aldridge:
Clayton E. Cramer said: "Mr. Aldridge, since there are many dozens of decisions of the courts recognizing that the Second Amendment protects an individual right that predate the formation of the NRA--and until the 20th century, absolutely none taking your position--your position is absurd."

Dozens???!?? Really? I know of one of the earliest cases (Bliss?) was ridiculed in later years by other courts. The Mass. right to keep and bear arms which is very similar to the 2A was never viewed as anything but a restriction against confiscartion of public arms meant to arm the militia that was experienced during the revolutionary war.
3.29.2009 2:57am
peter38a (mail):
(David McCourt)

You're right sir, I had never considered the groups you point out i.e. indentured servants and slaves. Though I wonder where the "bowmen" of 1415, Agincourt, fit into the above assertion. The common person was armed with the finest weapon of the day and the country depended upon them for defense. Are you saying that when muskets took the place of the bow that they were uncommon in common hands?

Thinking of our own history it occurs to me that it is absurd to think that the 2A attempted to restrict personal ownership of what was surely as everyday as owning a horse. It seems more to me now that far from a restriction the 2A is not even addressing personal ownership of firearms at all but saying in fact "...and no one may keep you from forming a militia either if you so desire."

For the greater part of our history, rifles and shooting contests were an important part of civic life. There were thousand yard ranges, great discussions as to the best kind of rifling, etc. And this all continued, to an extent anyway, until the '30s. How did rifles and pistols become so demonized? Well, I know I lived through part of it but how did they get away with it?

Our Founders, the Constitution, placed great trust in our personal responsibility what is the decaying force behind all this attempted infantilization? The more you think about it the more astonishing is our Constitution.
3.29.2009 3:49pm
David McCourt (mail):
"Are you saying that when muskets took the place of the bow that they were uncommon in common hands?"

In England, yes. In the U.S., no.
3.30.2009 1:31pm

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