by Dave Kopel and Joseph Greenlee - Thursday, September 28, 2017
This feature appears in the October ‘17 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.
In the 2016 election, many gun owners and other civil rights advocates voted for Donald Trump at least partly because of the vast importance of the U.S. Supreme Court and other judicial appointments. On the Supreme Court, new Justice Neil Gorsuch is already building a record as a Second Amendment defender. Less well-known than Gorsuch are Trump’s nominees to lower federal courts.
The vast majority of litigation concerning the Second Amendment never gets to the Supreme Court. Consequently, district court and appellate court judges make a great difference in whether the right to keep and bear arms is judicially protected.
Currently, there are 138 vacancies to fill in the federal courts. Because of announced retirements, there will be at least 21 additional vacancies by 2020. In the past, some federal judges appointed by Republican presidents have been excellent, while others have been disappointing.
Thanks to the input of the Federalist Society and other conservative groups, the Trump judicial nominees have established records of support for the original meaning of the Constitution and of deciding cases based on the law, rather than on political expediency. Even some of the harshest critics of Trump’s nominees acknowledge that they are the smartest and most capable set of judges ever nominated by a president. And since federal judicial appointments are for life (or until retirement), the Trump judges will be deciding cases for decades to come.
Most of the nominees do not yet have a record on issues related to the right to keep and bear arms in particular. For example, they may currently be judging in a state court, and a case involving the right has never come across their docket.
However, there are four recent Trump nominees who do have a record on the right to keep and bear arms. All of them were nominated in June or July. Let’s take a look at them. In two notable cases, Burke objected to overbroad application of gun laws. ... Both cases later went to the Alabama Supreme Court, which overturned the convictions and vindicated Burke’s dissents.
Since Gorsuch was elevated to the Supreme Court, one of the Colorado seats on the 10th Circuit Court of Appeals has been vacant. Trump has nominated Allison Eid, who currently serves as a justice of the Colorado Supreme Court. She began her legal career as a clerk for Justice Clarence Thomas.
Eid has written the opinion for the court in two major cases involving firearms. Colorado’s Concealed Carry Act was enacted in 2003, and it provides detailed rules for the limited conditions under which licensed carry can be forbidden on government property. The Colorado House of Representatives rejected an amendment that would have allowed public colleges and universities to ban guns.
However, then-Colorado Attorney General Ken Salazar issued an opinion claiming that the University of Colorado (CU) could still ban licensed carry. He argued that since CU is specifically mentioned in the Colorado Constitution, state laws do not apply to the university unless the legislature clearly states that the university must obey them.
Students for Concealed Carry on Campus subsequently brought a lawsuit. The organization was represented by the Mountain States Legal Foundation, a public interest law firm. The NRA participated by filing an amicus brief supporting them, as did the County Sheriffs of Colorado. The pro-rights plaintiffs lost in the district court, but prevailed in the Court of Appeals. The case then went to the Colorado Supreme Court, in Regents of Univ. of Colorado v. Students for Concealed Carry on Campus. Eid ruled in favor of the right to carry, and wrote the opinion for a unanimous court.
As she explained, the Concealed Carry Act had a “comprehensive statewide purpose, broad language and narrow exclusions.” These showed that “the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus.”
So starting in the fall semester of 2012, CU began allowing licensed carry on campus. Contrary to the predictions in the university’s hysterical briefs, nobody has pulled a gun in class because of a heated discussion about controversial literature. Nor has a student threatened to shoot a professor because of a bad grade.
Mark Norris has been nominated for the federal district court (the trial court) in the Western District of Tennessee, based in Memphis. He was first elected to the Tennessee Senate in 2000, and has been majority leader since 2007. In the state Senate, he was a tireless advocate for our right to keep and bear arms.
In 2003, Norris sponsored a bill that became law ensuring that citizens can lawfully acquire items regulated by the National Firearms Act (NFA). His bill required all paperwork by chief law enforcement officers related to the transfer of a firearm under the NFA to be processed within 15 business days.
Another Norris bill that later became law prohibits state and local governments from imposing special restrictions on the lawful sale, possession, transfer, transport or carrying of firearms during an emergency. This law aims to ensure that the type of gun confiscation that occurred in 2005 after Hurricane Katrina in Louisiana will never take place in Tennessee.
Norris also worked diligently to improve Tennessee’s concealed-carry licensing system, authoring two bills during his tenure. The first allows renewal of a concealed-carry permit up to six months after expiration, with no penalty and the standard renewal fee of $50. Under the old scheme, lapsed permit holders had to go through the process as if they were new applicants, undergoing training and paying $115.
Then, in 2016, Norris introduced a measure that made concealed-carry permits valid for eight years and lowered fees for a first-time permit to $100 from $115.
In Alabama, Liles C. Burke has been nominated for the federal district court in the Northern District of Alabama. Currently, he serves as a judge on the Alabama Court of Criminal Appeals. He is also an officer in the Judge Advocate General’s (JAG) Corps of the Alabama Army National Guard.
In two notable cases, Burke objected to overbroad application of gun laws. In both cases, he was a dissenter in the Alabama Court of Criminal Appeals. Both cases later went to the Alabama Supreme Court, which overturned the convictions and vindicated Burke’s dissents.
2015’s Tulley v. City of Jacksonville, Ala., was the first case. Jason Dean Tulley openly carried a pistol into a credit union. He was spotted by an off-duty officer and later arrested. Tulley was convicted of violating an Alabama statute: “No person shall carry a pistol about his person on private property not his own or under his control unless the person possesses a valid concealed weapon permit or the person has the consent of the owner or legal possessor of the premises.”
However, that statute provided no punishment for violation. Based on a shaky and complicated theory, the prosecutor argued that Jacksonville’s municipal code had adopted the state statute, and that the municipal code did provide a punishment for violation.
Burke dissented. It’s obvious that these nominees would be judges that will uphold the Second Amendment-protected right to keep and bear arms.
The Supreme Court of Alabama determined that Burke was right. The statute prohibiting carrying arms on private property did not provide a punishment, and therefore any punishment would violate due process. A criminal statute must state with clarity the consequences of a violation.
In Pate v. City of Tuscaloosa, Luther Pate IV owned a building and rented it to a restaurant. The lease was terminated for non-payment. Later, some restaurant employees went back to the property to oversee the removal of equipment they left on the premises. Pate told everyone to leave, which they did. Pate then started checking for any new damage to his property. A restaurant employee returned, supposedly to retrieve a laptop he left behind. The two got into an argument, and Pate went to his truck and grabbed his shotgun. The restaurant employee then left.
Pate was prosecuted for the crime of “menacing.” There was a factual dispute about whether Pate had pointed the gun at the restaurant employee. The crime of menacing requires that there be some physical action. The trial court decided that the simple act of “getting the gun” was enough of a physical action.
In the Court of Criminal Appeals, the majority upheld the conviction. Burke dissented. Neither the majority nor the dissent wrote an opinion.
The Supreme Court of Alabama later agreed with Burke, and overturned the conviction: “We conclude that Pate’s getting the gun, without more, was not sufficient to establish the physical-action element of menacing.”
Finally, there is William M. Ray II, who is currently sitting on the Georgia Court of Appeals and has been nominated to the federal district court for the Northern District of Georgia. Before becoming a judge, Ray served for six years in the Georgia Senate. In his first race, in 1996, he received an “A” rating from NRA’s Political Victory Fund (NRA-PVF). Based on his leadership record on the right to arms, that rating was raised to an “A+” when he ran in 1998 and 2000.
Among the important reforms that Ray helped pass were banning reckless lawsuits against firearm businesses; pre-empting local anti-gun laws; removing the carry permit fee for retired law enforcement officers; eliminating the need for background checks when a gun owner reclaims his own gun from a pawn shop, if the gun was pawned less than a year prior; range protection; and preventing insurance policies from excluding or denying coverage based on firearms ownership.
It’s obvious that these nominees would be judges that will uphold the Second Amendment-protected right to keep and bear arms. Whether they become federal judges is now up to the U.S. Senate. Don’t be surprised if the gun prohibition lobbies work hard in an attempt to block them.Dave Kopel is research director of the Independence Institute in Denver.
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