[blindLaw] Firearms and the Blind?

Tue Jul 11 20:23:46 UTC 2023

This would not be a good case to change the rational basis review test, as there are sufficient statutory grounds for resolution to avoid the constitutional question. A court is only going to find a direct threat but nevertheless a constitutional right if they are trolling the supremes like the judge down in Mississippi that held the felon-in-possession law unconstitutional.
On 11 Jul 2023, at 16:15, James Fetter wrote:

> 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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