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Another Response to Jan Morgan

I believe this response goes farther than either Caleb or I did in excoriating Jan Morgan from banning muslims from her gun range, much of which I agree with. Reading some of the comments over at Caleb’s post, I was struck by how many folks don’t really get the context under which we’re arguing, so I thought I’d take a minute to explain it.

The key law at work in this context is Title II of the Civil Rights Act of 1964, which outlaws discrimination based on race color, religion, or national origin in “public accommodations.” When most people talk about the Civil Rights Act, they usually mean the 1964 Act. There could be some debate about whether a gun range is a public accommodation under the act, but I think it would be quite surprising if a court were to agree that it is not. There had been an attempt in the Civil Rights Act of 1875 to use the Thirteenth and Fourteenth Amendments to reach a similar result, but the Supreme Court said no. The 1964 act relied heavily on Congress’ power to regulate interstate commerce. So it has been established law for some time that this type of discrimination is unlawful.

There are some who argue that the Civil Rights Act of 1964 went too far in regulating private behavior and limiting property rights. Barry Goldwater was one of the more famous opponents to Title II of the Civil Rights Act, but it’s likely his opposition cost him his bid for the Presidency. I do believe the libertarian argument against Title II of CRA64 is a legitimate one, is not based in a desire to perpetuate racism, or beyond debate. But politically, I’ve written before, opposition to CRA 64 is a non-starter, and probably will continue to be for some time.

It’s worth making sure people understand what the law currently says about what Jan Morgan is doing, and why I think that makes her a distasteful person to have on “our side.” Opposition to the Civil Rights Act of 1964 has never been a winning political position, and she’s bound to lose any lawsuit. This was attention grabbing, pure and simple.

Alan Gura in Harvard Law Review

The Second Amendment as a Normal Right. It is rightfully harsh on how some federal circuit courts have treated the Second Amendment. Here’s an expert:

Suppose a state were to prohibit abortion at 20 weeks of gestation absent a doctor’s certificate of “medical emergency,” invoking “documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.”30 In a world where Kachalsky-style “scrutiny” applied to the abortion right, it simply wouldn’t be the courts’ job to second-guess a legislature’s regulatory oversight of the medical profession in the important interests of patient safety and prevention of cruelty. Yet when Arizona enacted just this law, the Ninth Circuit wasted no time striking it down:

Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term. Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusion of the choice to terminate a pregnancy altogether.31

The court properly made quick work of the theory that a fundamental right is not infringed when everyone is free to exercise it upon proving need.32 “The presence of a medical exception does not make an otherwise impermissible prohibition constitutional. The adequacy of the medical exception has no bearing on whether the prohibition is permissible in the first place.”33 Regardless of what the legislature may earnestly believe to be required in the interests of health and safety, the Supreme Court has guaranteed a woman’s right to terminate pregnancy until viability.34 “The twenty-week law is unconstitutional because it bans abortion at a pre-viability stage of pregnancy; no health exception, no matter how broad, could save it.”35

Heller and McDonald leave no doubt that the Second Amendment must operate similarly, as a normal constitutional right…

Read the whole thing. The courts seem to know how to treat rights when a case involves a right that judges favor.

More Female-Oriented Political Advertising

Speaking of reaching out to more women, this is one of the first ads I’ve seen from NRA that really tries to hit at female voters.

It’s message is much closer to that of other female-centered general political advertising. It’s personal and has a specific story, which is a refreshing change from many of the ads running from the NRA commentators which are general “the world sucks and the sky is falling” kind of themes.

The fact is that advertising like this is much easier to identify with, even if someone has never been in that situation. A similar humanizing ad from Sen. Mitch McConnell is getting attention specifically because of how much it makes him seem like a real human instead of just some robot in Washington.

Just like a candidate isn’t likely to jump all over a sexual assault victim, they aren’t likely going to try and attack this woman who obviously believes that McConnell was key to her daughter’s return. These are ads that make lower information voters feel good and make them think, “Yeah, I can identify with that person if I was ever in that situation. If I can identify with them, then maybe I should consider the candidate they are backing.”

The only concern I have about NRA’s ad is that it may be assuming too much in that lower information voters have any idea who Bloomberg is backing. He’s a great guy to demonize because few people like wealthy billionaires who haven’t lived their lives telling them what to do, but that doesn’t mean they know which candidates he’s backing or exactly how he’s involved in their local races. It would be most effective if the ad was shared by local folks along with a message of which area candidates are anti-Bloomberg. Maybe that’s what we’ll see happen. With about an hour on Facebook, it’s already nearing 700 shares.

Pretty Gun Gear

I am just now starting to really like some of the efforts to market more feminine gun accessories.

For years, the extent of actual gun gear related to women was having something come in pink. Pink is fine. Plenty of women like pink, and it’s great that their market is served. But when I see pink guns, I think of how much my 6-year-old niece would like it.

I have never liked pink. When I was a girl, my preference was purple. As an adult, it’s all shades of brown and shiny like rose gold – which another company just released to the market recently.

But when I saw this pop up on Jacqueline Janes’s Facebook page, I fell in love.

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This is beautiful, and feminine, without a trace of pink.

It’s almost like men in the industry are starting to realize that adult women probably shouldn’t be exclusively marketed to like 10-year-old girls. Or, maybe women have finally taken over enough spots in the shooting world that they could now voice their opinions that the novel pink offerings are cute and all, but they aren’t really attractive. (In the case of the pretty fleur-de-lis hand guard, it’s a woman-owned company from the looks of it.) It’s nice to really start to see more variety in the pretty gun gear market.

Discriminating Gun Range?

Bob Owens has the story about a gun range that has decided to exclude muslims. I’m with Caleb of Gun Nuts Media on this one. This does not show gun owners in a good light, and merely serves to reinforce the stereotype of gun owners being ignorant bigots. This kind of discrimination is also illegal, so this is certain to invite a lawsuit which Jan Morgan will lose.

She could refuse to rent to someone who came in and said “Please, I would like to rent a semi-automatic rifle so I can practice killing infidels.” But refusing to rent to someone for just being muslim would violate the Civil Rights Act’s prohibition on discrimination in public accommodations.

It’s my view that this is a shameless publicity stunt done by a woman who makes money feeding the worst instincts of the political right. One problem I think the right has is too many people who make a living doing that.

Civil Rights Victory in Pennsylvania

The case is Binderup v. Holder, filed in the Eastern District of PA. The plaintiff was convicted years ago of Corruption of Minors for having sex with a 17 year old. In Pennsylvania, Corruption of Minors is a misdemeanor, but has a possible sentence of up to five years, so it applies for the purposes of a federal prohibition. Corruption in Pennsylvania tends to occur for one of two things, alcohol and sex. Often both. Furnishing liquor to minors in Pennsylvania can cost you your gun rights. So can sex between a 18 year old and 17 year old. The age of consent in Pennsylvania is 16, so the charge is not Statutory Rape, but Corruption of Minors is still an option for the prosecution.

This is an “as applied” challenge, meaning the statute was challenged as applied to this person’s individual circumstance. It was not a facial challenge to the statute as a whole. This would presumably apply to other persons similarly situated to this defendant. To read more details about this case, see Of Arms and the Law and also Alan Gura’s blog, who is the attorney who argued this case.

Slowly but surely, we are chipping away here and there. The other side may brag about our defeats, but we’ve also had some very important and circumstantial wins. There are a lot of people in Pennsylvania, who are no threat to anyone, who have gotten caught in this trap. Now there may finally be some relief for them.

Eric Holder Resigning

Eric Holder has announced he’s stepping down as Attorney General. The best prediction of the next happenings at the Department of Justice was found on Twitter:


Shaneen Allen to Pre-Trial Diversion

According to attorney Evan Nappen, the Atlantic County Prosecutor has suddenly decided that Shaneen Allen is now eligible for the pre-trial diversion program. It would seem he has decided that she is no longer a bigger danger to society than Ray Rice.

UPDATE: Here’s the story in the press.

“Temporary Intrusion” of the First Amendment

The Express-Times in Lehigh Valley area decided to attack those concerned about potential constitutional violations in an op-ed, saying that those who have had their rights violated and want to stand up for them are merely “opportunistic” and too concerned with themselves to put up with a “temporary intrusion” that has lasted at least a week.

They even highlight a quote from the Pennsylvania State Police’s PR guy that assures us that not all people are completely cut off from their homes. Citizens can trust that if the police think you actually have a good reason to go to your home, then they will be the ones to decide if/when you get access, and only under escort if they like your reasons for wanting to go home.

So, I’d like to know how the Express-Times staff would react to the news that the state police argue that their coverage of the events is helping the suspect evade law enforcement. Sure, they have no actual evidence that the suspect has access to their papers, but it’s a possibility that he might be in the area and using the resources to evade them – like he might possibly be hiding out in every single car in the area or every home in the area.

Therefore, the police ask that the Express-Times stop publishing their paper during this “temporary intrusion” and that any efforts to argue that they have a First Amendment right that must be respected is a case of them being “opportunistic” and overly greedy with their Constitution rights claims.

Some public relations officer will remind their editors that they aren’t really blocking all access to their publishing equipment – because if the police determine there’s any message worth hearing, then they will provide an armed escort to any reporter or editor they hand select to supervise their limited visit to the printer.

I find it hard to believe that the Express-Times staff wouldn’t be on the phone to lawyers trying to argue for their Constitutional rights. Why are they condemning anyone else who is concerned that in specific instances, perhaps law enforcement have gone too far and actually crossed the line into violating someone’s rights?

According to another report on the situation, attorney Josh Prince has already talked to someone who was forced out of their home, despite having three dogs there, and has been refused access to care for them since Sunday. It was Tuesday when that story was posted. The New York Times found a man who was thrown to the ground and detained in handcuffs just for going to his own home.

Regardless of what the public relations officer is telling the media, it’s clear that there are reports from those forced to leave that the police are keeping people away from their homes. If they aren’t keeping them away from their homes, it’s clear that at least some officers have gotten a little too quick to act against local citizens. Any lawyer who is helping someone understand their rights – and whether or not they have been violated – should be applauded.

Pennsylvania Pre-Emption Became a Gun Control Battle

There were dueling amendments proposed in the Pennsylvania House this week, and yesterday afternoon, the votes came down.

Gun owners should definitely say a word of thanks to the state representatives who voted to support pre-emption reforms and thanks to those who voted against the Bloomberg-backed effort to add more restrictions (and expenses) to long gun sales. In fact, an election year is a great time to remind our lawmakers that we’re watching their votes. Even better, if they voted with us on the bills, track down their campaign and get a yard sign or volunteer to lend a hand. That’s a huge thank you that will be remembered.

NRA is asking folks to pester their senators about getting this bill moving in the Pennsylvania Senate.

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