06 August 2008

Packing Heat: Hard in Mass.

After moving from the Pittsburgh area to Boston last fall to begin his 1L year at Suffolk, Andrew Capone found himself in an unfamiliar new setting that sometimes seemed less than safe. When his girlfriend, a fellow Suffolk Law student, began to investigate the possibility of buying a handgun for personal protection, Capone--who is Vice-President of the Suffolk Federalist Society--decided to go through the process with her.

In Capone's home state of Pennsylvania, any law-abiding citizen twenty-one years or older who is of sound mind can visit a licensed gun dealer and purchase a handgun. Anyone who is eighteen or older can buy a shotgun or rifle. After the dealer completes the federally-mandated background check using the Pennsylvania Instant Check System (PICS), most would-be gun owners in Pennsylvania can walk out with their new firearm on the same day. No license is required to keep a gun at home, and most majority-age Pennsylvanians would qualify for the license to carry a concealed pistol after undergoing a criminal background check, being double-checked by local law enforcement, and paying a modest fee.

Other than the initial background check, which in most states is conducted using the FBI's National Instant Criminal Background Check System (NICS), the process of buying and legally carrying a pistol in Pennsylvania is fairly representative of those in most other states. Some states are even less restrictive on concealed carry--Vermont and Alaska allow their law-abiding gun owners to carry concealed weapons without any permit at all, for example, and most states that do require permits for concealed carry issue them on a "shall issue" basis, meaning that the issuing authority has little room to exercise discretion in denying or approving qualifying applications. Massachusetts, however, is a very different place when it comes to gun regulations.

As Andrew soon discovered after he began the process this past January, Massachusetts has some of the most restrictive gun regulations in the country. When it comes to buying and carrying a handgun, the process in Massachusetts is more onerous than in any state but Wisconsin or Illinois, with layers of sometimes expensive permit and license requirements that one must navigate in order to purchase and keep a handgun for defense or recreation in the Commonwealth. Even the carrying of pepper spray is illegal in Massachusetts without the proper permit.

After procuring a Massachusetts drivers license ($90), Capone then had to complete a certified firearms training course ($150), join a gun club ($150), apply for the license-to-carry ($90), and take a shooting proficiency test. By the time he finished these steps, it was the end of April. After waiting for more than a month, he again contacted the issuing authority and was informed that there had been a delay of some sort that had prevented his application from being processed. Finally, at the end of June, Capone was granted a restricted License-to-Carry that permits him to legally keep a handgun in his residence. Despite the name, the restricted LTC does not allow him to carry a weapon for defense outside of his home.

According to Capone, "The process was frustrating. It seemed like during every step of the application process someone was trying to hinder my efforts. I remember asking a woman at the police department where I would go to join a gun club, and she told me there were no gun clubs around. I later discovered that this was false."

Andrew Capone is not the first to discover that local law enforcement officials sometimes make it difficult for law-abiding citizens to acquire a gun permit. In a May 29, 2008 expose by the Boston Globe, it was revealed that local officials often unilaterally raise the bar for obtaining a permit by requiring reference letters, certification by a physician, expensive gun club memberships, requalification, and often even heftier fees than what the relevant statutes authorize. Law enforcement justifies these locally-tailored requirements and restrictions by arguing that they, not the legislature, should have the final say as to who may possess weapons in their communities. Self-defense advocates respond that these various regulatory schemes are really designed for one purpose: to discourage people from even applying for a permit in the first place.

Massachusetts has long had strict gun rules, but those regulations may soon be called into question as a result of recent decisions about what the 2nd Amendment protects. Here are some landmarks in the history of the 2nd Amendment:

  • December 15, 1791
    The Bill of Rights become law when Virginia's ratification meets the three-fourths requirement

  • March 27, 1876
    The Supreme Court declares in United States v. Cruikshank that the 2nd Amendment "has no other effect than to restrict the powers of the national government." Later affirmed by Presser v. Illinois (1886).

  • May 15, 1939
    In United States v. Miller, the Supreme Court holds that the non-military nature of the defendant's sawed-off shotgun excludes it from the class of arms designated by the 2nd Amendment's prefatory clause, which refers to a "well regulated militia."

  • October 16, 2001
    The 6th Circuit Court of Appeals holds in United States v. Emerson that an individual right to keep and bear arms protected by the 2nd Amendment was violated by a federal law that forbade the defendant--who was subject to a divorce-related temporary restraining order--from keeping firearms.

  • June 26, 2008
    The United States Supreme Court holds in District of Columbia v. Heller that D.C.'s effective ban of the possession of operational firearms violated an individual right to keep and bear arms protected by the 2nd Amendment.

  • June 26, 2008
    Alan Gura, the lead attorney for Dick Heller, files McDonald v. Chicago in the United States District Court for the Northern District of Illinois, seeking to invalidate Chicago's restrictive gun control laws by arguing that the 2nd Amendment ought to be incorporated under the 14th Amendment's Due Process Clause.

(Also published in the Fall 2008 orientation issue of Dicta, Suffolk Law's newspaper.)

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01 August 2008

Giving Up Bi-Partisan Politics

Far too often, conversations about political matters end up sounding like conversations about team sports: the party affiliation of the politician in question often has more impact on the tenor of the discussion than do policy questions. While I would certainly never criticize a fan's loyal advocacy for his local ball club, it is pretty clear that team loyalty is less admirable when it comes to politics. It happens too frequently that a policy denounced by one party as despicable one year becomes the same party's grand plan the following year.

Take for example the Republican criticism of Clinton for his military interventionism in places like Bosnia. Clinton was decried for wasting taxpayer money and sacrificing American lives at the behest of the United Nations. Clinton was again criticized for the suspicious timing and questionable policy basis for an Iraq bombing run in 1998 on the eve of impeachment proceedings. Senator Trent Lott said, "Both the timing and the policy are subject to question." In 2000, George W. Bush ran on promises of a "humble" foreign policy and no nation-building, questioning Clinton's use of American combat personnel in Haiti and elsewhere. He said, "We must be proud and confident of our values, but humble in how we treat nations that are figuring out how to chart their own course."

Yet, the opportunity to attack Iraq proved too great a temptation for Bush as well. Like Clinton's intervention in Bosnia, Bush's military activities were partially obscured from public view by the use of mercenary troops. Clinton notably hired DynCorp contractors who were later accused of participating in sexual abuse and even child sex slavery. Complaints of human rights abuses by Blackwater and other corporate troops in Iraq are still fresh in the public memory. Although Bush's heavy use of Blackwater private security details and operational teams in Iraq resulted in a greater public awareness of the use of such private soldiers, it is clear that both presidents sought to make it appear that fewer casualties were being sustained than was really the case. Regardless of the scale of these engagements, both presidents seem to have forgotten that the secession announced in the U.S. Declaration of Independence was justified in part by another head of state, King George III, "transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation."

It is only by the deceptive hand of bipartisan politics that the population has been divided against itself with each faction eagerly supporting one day policies that it ridiculed the previous day. This election season, when the need for political change seems more desperate than any time in recent memory, it is vital that we as thinking citizens drop the team politics and worry less about which self-aggrandizing politico has his finger on the button and more about whether we need that button in the first place.

(Also published in the Fall 2008 orientation issue of Suffolk Law's newspaper, Dicta.)

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