[blindLaw] Firearms and the Blind?

Tue Jul 11 20:15:25 UTC 2023

You are probably right, particularly if the goal was to create a test case that would make it to the Supreme Court. The best thing to do would be to recruit someone in a state with discriminatory laws to attempt to obtain a license and get denied  on the basis of vision, whereupon suit could be filed very quickly. Putting the gun issue to the side (personally, I could care less about it, except maybe as a vehicle for challenging rational basis review as the constitutional standard for distinctions based on disability) I think we need to be more proactive about recruiting and using testers to go after discriminatory laws and practices. 

Sent from my iPhone

> On Jul 11, 2023, at 3:53 PM, Al Elia <al.elia at aol.com> wrote:
> 
> I’m not up to speed  on the requirements for pre-enforcement declaratory relief, but I suspect it is not available where the plaintiff is placed in no different a position pre-and post-ripening, as would be the case where a blind person has no license before applying for one, and has no license after being denied one due  to blindness. Now if persons were subject to a penalty upon being denied a license, that might allow for a pre-enforcement challenge. However, I suspect that is not the case.
> 
> And much though I dislike the 303 Creative decision, I think that if I wanted Planned Parenthood to have standing  to seek pre-enforcement challenges pre-Dobbs, then I have to accept 303 Creative’s standing as well.
> 
>> Yeah so last year, except for the time days later the Supreme Court
>> unanimously held that student loan challengers lacked standing.
>> Focusing on preferred results, indeed.
>> 
>>> On 7/11/23, 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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