[blindLaw] Firearms and the Blind?

Tue Jul 11 19:52:23 UTC 2023

Hence the futile gesture exception. To use a classic example, a wheelchair user does not have to attempt to crawl up a flight of stairs, in order to sue a business for being inaccessible to him. He merely needs to indicate that he intends to enter the business and cannot do so, due to the accessibility barrier.
Obviously, you would still need a blind person who lived in a state which prohibited blind people from obtaining licenses to carry concealed weapons  and who wanted to obtain such a license. But you would not necessarily need the blind person to attempt to obtain a  license and actually be refused based on the discriminatory law. Of course, it would be better if you could get that, but there is a colorable argument that it isn’t  necessary.

Sent from my iPhone

> On Jul 11, 2023, at 3:26 PM, Mike Mcglashon via BlindLaw <blindlaw at nfbnet.org> wrote:
> 
> I know, I am only a lost student trying to pass the bar, but,
> That to me would be a non-justiciable argument.
> Because there would be no injury in fact.
> The injury would not have occurred until the applicant applies and is denied the license.
> 
> 
> Sent from my iPhone
> 
>> On Jul 11, 2023, at 2:02 PM, James Fetter via BlindLaw <blindlaw at nfbnet.org> wrote:
>> 
>> Why couldn’t you raise a futile gesture argument? You may not need a blind person to be denied a license. You may only need someone who says they would apply for a license, but for the allegedly discriminatory standards preventing them from receiving one.
>> 
>> Sent from my iPhone
>> 
>>>> On Jul 11, 2023, at 2:35 PM, Al Elia <al.elia at aol.com> wrote:
>>> 
>>> 
>>> Yeah, but she was seeking a declaratory judgment in a pre-enforcement action. Different beast.
>>> 
>>>>> On 11 Jul 2023, at 14:22, James Fetter wrote:
>>>> 
>>>> Ripeness is so last year, or so it seems. https://www.npr.org/2023/07/01/1185632827/web-designer-supreme-court-gay-couples
>>>> 
>>>> 
>>>> Sent from my iPhone
>>>> 
>>>>> On Jul 11, 2023, at 1:38 PM, Al Elia <al.elia at aol.com> wrote:
>>>> 
>>>> So far as I am aware, we do not yet have a blind person who has been denied a gun license on account of blindness. Until such a person exists, there is no ripe case to be brought. Once that case is ripe, I would certainly consider bringing it.
>>>> 
>>>> 
>>>> 
>>>> 
>>>>> On 11 Jul 2023, at 13:25, James Fetter wrote:
>>>> 
>>>>> Then bring the litigation and see what happens.  I suspect that textualism will conveniently Fade into the background, if the Court is confronted with a scenario in which textualism does not justify its preferred result.
>>>>> I think we would be in a much better position, if a State or local government imposed an outright ban on us possessing  or purchasing firearms in any context. I think we could make a convincing argument that we have a constitutional right to self-defense, especially in our homes. This is now a well-worn path for  invalidating gun laws that the Supreme Court sees as overly restrictive.
>>>>> 
>>>>> Sent from my iPhone
>>>>> 
>>>>>>> On Jul 11, 2023, at 1:14 PM, Al Elia <al.elia at aol.com> wrote:
>>>>>> 
>>>>>> I’m sorry, I thought courts were supposed to read and interpret statutes based on their actual words, not their implications. Courts don’t do panumbras and emanations anymore, or so  I thought the Supreme Court suggested.
>>>>>> 
>>>>>>>> On 11 Jul 2023, at 12:43, James Fetter wrote:
>>>>>>> 
>>>>>>> In what world does a license to carry a gun not imply a license to shoot it under certain circumstances? Do you really think that any court would buy the argument that licensure requirements are discriminatory, because blind people would, on their honor, only fire weapons in the presence of sighted assistants? If we are actually serious about bringing litigation in this space, I think we need to convince some fraction of the public that we are capable of handling lethal weapons safely. I do not think we are there yet.
>>>>>>> 
>>>>>>> Sent from my iPhone
>>>>>>> 
>>>>>>>>>> On Jul 11, 2023, at 12:23 PM, Al Elia <al.elia at aol.com> wrote:
>>>>>>>> 
>>>>>>>> We are not talking about a license to shoot a gun, wee are talking about a license to carry a gun. I dare say that a sighted person does not have a right to fire a gun into a crowd, as that would be reckless and, if death resulted, would be depraved-heart murder. I would argue that a license to carry is just that – a license to carry, and thus cannot exclude a blind person. If they start going on about firing, I would argue that a licensee has a responsibility to wield their gun reasonably, and that a blind person thus has the responsibility to wield their gun in a manner that a reasonable blind person would. That may mean that a blind person can never discharge their weapon other than when in the presence of a competent sighted assistant, but that has no bearing on their license to carry it.
>>>>>>>> 
>>>>>>>> 
>>>>>>>>>> On 11 Jul 2023, at 12:12, James Fetter wrote:
>>>>>>>>> 
>>>>>>>>> Title II May well be a stronger argument, but the other side would beat the direct threat drum very loudly. They would raise the specter of people, dare I say, firing blindly into crowds and things like that. And most judges would probably buy that argument.
>>>>>>>>> I actually think that the current Supreme Court might be somewhat sympathetic to the constitutional argument here, given its solicitude to litigation expanding the right to bear arms across the board. If I were bringing this sort of litigation, I would obviously argue both in the alternative. Who knows, this might even be a good vehicle to get the Supreme Court to revisit whether rational basis is the correct standard for distinctions based on disability.
>>>>>>>>> 
>>>>>>>>> Sent from my iPhone
>>>>>>>>> 
>>>>>>>>>>>> On Jul 11, 2023, at 11:58 AM, Seif-Eldeen Saqallah <seifs at umich.edu> wrote:
>>>>>>>>>> 
>>>>>>>>>> Enlightening; I like that argument - thank you.
>>> 
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