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The High Ground

Kurt Hoffman has been among the bloggers doing an admirable job presenting the other side of the coin when it comes to political action against Holder.  Regarding NRA’s letter to Congress opposing the nomination, which mentioned Project Exile, he had this to say:

Every time the NRA advocates “enforcing existing gun laws,” they surrender the Constitutional high ground. How can they, with a straight face, argue that the Constitution prohibits all federal gun laws, except the ones that they endorse? How does that differ from rank hypocrisy? Finally, how dare they demand that the citizen disarmament advocates have any more respect for the Constitution than they do themselves?

If that’s an example of the (dare I say it?) pragmatic approach, I’ll stick to tilting at windmills.

I don’t think NRA has ever taken the position that every federal gun law is unconstitutional.  Even I don’t agree that every single one is unconstitutional on its face.  No constitutional provision in the Bill of Rights has ever been held to be absolute.  Even the First Amendment, which is fairly broadly protected, probably more broadly these days than the founders ever envisioned, has exceptions (not all of which I agree with).

Even if you argue that the commerce clause doesn’t give the federal government the power to regulate, say, possession of arms by convicted felons, which I would agree with, the commerce clause isn’t NRA’s issue, and do you really want NRA to come out and say that they support gun rights for felons?  I doubt even most NRA members would be happy with that.

There seems to be a constant desire among some in the movement, to continue using the belabored combat metaphors, to plan for the sack Rome when we haven’t even pushed Caesar out of Gaul yet.  With Ceasar’s legions regrouping to come at us yet again, I would rather focus on defending against the main attack, rather than getting distracted by diversions, or dreaming of sacking Rome.  Rome might be the prize we seek in the end, but for now there is a battle coming.

11 Responses to “The High Ground”

  1. . . . and do you really want NRA to come out and say that they support gun rights for felons? I doubt even most NRA members would be happy with that.

    I agree that doing so wouldn’t make a lot of sense. My point is that there is a middle ground between “supporting gun rights for felons,” and actively advocating federal gun laws–they could simply stay out of that debate, and push for more vigorous prosecution of, and longer sentencing for, violent crime. Since a significant majority of murders committed with guns are committed by repeat offenders, such an approach would pay real dividends toward enhancing public safety.

    Keep in mind that under “Project Exile,” before the expiration of the AWB, the mere possession of a standard (non-reduced) capacity magazine by a felon was aggressively prosecuted.

  2. mike123 says:

    I suppose that I’m in the minority and believe felons should have thier gun rights restored after satisfying thier sentences. I believe its cruel to punish someone for a lifetime. Felons don’t lose their other Constituitional rights, why is the 2nd any different.

  3. Sebastian says:

    My main problem with Project Exile was that it morphed into something I wouldn’t support. If you look at the original program:

    Project Exile specifically targets previously convicted felons carrying guns and armed persons involved in drug or violent crimes.

    If they limited it to violent felons, I wouldn’t have too much of a problem with it from a gun rights point of view (but not from a 10th amendment view). But you know a program like that is going to end up throwing some guy that was convicted of tax evasion in prison for 10 years because his divorced wife ratted him out to the feds for having a gun.

    The problem is, it morphed into Project Safe Neighborhoods, which is zero tolerance for any federal gun law violation, which to the best of my recollection, NRA has never gotten behind.

    But look at it from NRA’s point of view. I’m not asking you to agree with it, because there’s a serious downside to Exile, which you’ve outlined, and I don’t think it’s unreasonable to there’s too much downside. But here’s the upside in the late 90s, when you had Clinton beating the gun control drum every chance he could get:

    1. Lets people know that there are already gun laws. You’d be surprised how many people don’t know this, and when you explain what the laws actually are, back off their assertion that we need more gun control. I’ve even gotten some to admit that some of the existing laws are stupid.
    2. Lets people know that Clinton is asking for more gun control laws, when he’s not doing squat to use the ones he already has to lock up criminals
    3. Lets people know NRA is not unconcerned about the problem of criminals misusing guns, and that it is willing to propose solutions that work, whereas the other solutions (gun control on the law abiding) do not work.

    The tactic is basically to reframe the public debate on guns on terms more favorable to NRA. That’s not to say perfectly favorable, but more favorable than the terms Clinton was framing the debate in.

    You could argue that just a general “get tough on crime” approach would be better suited, but it would lack a lot of the benefits above. NRA made a decision to cede the ground on felons and guns long before it embraced Project Exile. The danger of NRA embracing Exile is that it legitimizes the notion that gun control laws can work. But I think when gun control laws are aimed solely at those that have been convicted of violent crimes, whether they work or not is not so much of a threat to us.

  4. Sebastian says:

    I suppose that I’m in the minority and believe felons should have thier gun rights restored after satisfying thier sentences. I believe its cruel to punish someone for a lifetime. Felons don’t lose their other Constituitional rights, why is the 2nd any different.

    There was a provision that NRA got inserted into FOPA to provide for the restoration of rights to people convicted of violent crimes, but since the early 1990s, Congress has refused to provide any funding for it. I would support restoring funding for this.

    But the question of whether felons shouldn’t lose their rights for life, post conviction, doesn’t offer much guidance as to whether the practice is constitutional or not. Under conditions of parole, we allow quite a number of restrictions on fundamental liberties. I think a good argument can be made that you get your rights back once your sentence is up, but I don’t necessarily agree that restrictions on some essential liberties post sentence would be, per se, unconstitutional. I believe there have been attempts to restrict freedoms like free association post sentencing that have been upheld.

  5. Dave R says:

    I understood Armed and Safe’s point, but arguing over whether the NRA thinks all federal gun laws are unconstitutional misses the central problem with the Holder letter. I believe the central issue is whether all existing gun laws are constitutional, desirable, but most importantly, whether all existing gun laws should in fact be enforced. Saying that concedes quite a lot. Some existing laws we fought against, some we possibly should have fought against, some are unjust regardless of constitutional status, and hopefully we may someday be in a position to repeal some of them. Except that the NRA is on record endorsing the whole package so strongly that they encourage active enforcement.

    For me this comes back to the concept of ratcheting regulations. The left has largely succeeded in taking their victories, waiting a generation if they have to, and taking last time’s “final” encroachment as the base for a new compromise in their direction. While it may not be possible to do anything more than hold or mitigate in the short term, in the long term we’re finished unless we can actually retake ground and repeal status quo laws, because the gun-banners will not stop moving the center.

  6. moorcat says:

    The Heller decision adds a whole new dimension to this issue as well. By stating that gun ownership is an individual right but then pushing the issue to the state and local governments, they have essencially made even knowing what the gun requlations are next to impossible. Under the Heller decision, you have conflicting laws between county and city, between city and state… the list is endless.

    My question would be.. is there one source that lists all the existing gun laws? As a gunsmith in training, I have attempted to find a single comprehesive list and found even the NRA lists to be insufficient.

    Another thing to consider is that – with the Heller decision, the next big battleground for gun rights WON’T be in Congress… it will be at the local and state level.

    Moorcat
    Montana Bullets and Blades

  7. Sebastian says:

    My question would be.. is there one source that lists all the existing gun laws? As a gunsmith in training, I have attempted to find a single comprehesive list and found even the NRA lists to be insufficient.

    If you’re an FFL, the ATF should be sending you a book of all the federal, state, and local gun laws in existence. It’s quite thick. If not, you can probably get the book from them as a non-licensee. But as a licensee they just send it to you when they update it.

  8. Sebastian says:

    Another thing to consider is that – with the Heller decision, the next big battleground for gun rights WON’T be in Congress… it will be at the local and state level.

    It’s going to be both federal, state and to some degree local. What Heller does for us is allow us to litigate all this in the courts as well. But right now Heller only means you can have a handgun of some sort in your home, within Washington D.C. Making it mean more than that will require a long, drawn out court strategy.

  9. moorcat says:

    “What Heller does for us is allow us to litigate all this in the courts as well. But right now Heller only means you can have a handgun of some sort in your home, within Washington D.C. Making it mean more than that will require a long, drawn out court strategy.”

    And for that very reason, Congress-Critters are in a holding pattern when it comes to Federal Gun Control laws. Some have stated up front that they are waiting until the Supreme Court further clarifies Heller. Others (like Tester) have said that Heller (and the Pro-Gun support existant right now) has made federal legislation damn unlikely. Maybe I am somewhat optomistic, but I just don;t see any federal gun laws being passed for at least a couple of years. They will wait for the Bruhaha over Heller to die down.

    As far as the book is concerned – do you have any further information on how I can go about getting it? I don;t have my FFL yet (still studying for the test).

    Moorcat
    Montana Bullets and Blades

  10. Sebastian says:

    Looks like it’s available online, actually:

    http://www.atf.gov/firearms/statelaws/

  11. RAH says:

    Actually Heller applied to the federal government as well as DC. But the federal gov’t does not seem to grasp that yet. It will take more successful court cases to get there. The problem is that SC is generally supportive of the federal gov’t position in anything. So is a real question if the SC would support 2 A against the federal gov’t.

    The NY magistrate that threw out under due process the Walsh amendment that stated the fed gov’t had the ability to deprive arms under a bail hearing for child pornography was a surprising ripple of Heller and very promising.

    There is a large body of law under the last 20 years that presumed the federal government could regulate freely against guns, ammo etc. The BATF and FBI and all the federal police and agencies are still operating under those presumptions.

    The recent example is the National Park issue. Since Heller declared possession of a firearm and pistol in a right under the 2A, it should have been clear that the DOI could not prevent the citizen from carrying a weapon. Since NPS regulations said a weapon could be with the citizen but not available they may have been within the letter of Heller though not the spirit.

    The next hurdle is the carry provision and I am not in a hurry to get the SC, under the Obama administration, to decide that. Lets keep that within the states, since most states do have that provision in their constitutions and laws.

    Kurt and the others are understandable impatient to claim the full range of 2A rights, but it was the last 10 years of pro gun laws in the states that led to a successful Heller like CCW and expanding the Castle doctrine.

    Incorporation is the next federal step and the SF and some other cases has seemed to imply that is a given. But it has not been specified. But SF gave up on guns in public housing and that was a Clinton policy that we are getting back.

    Like others I have been uncomfortable with the presumed agreement that illegal guns are a problem. The guns are just a tool. Lets focus on the criminal and not the tools. I think the NRA also has to think about their own assumptions over the accommodations to gun grabbers in the last 20 years. Kurt does have a point that the NRA in its pro LEO stance and trying to get ahead of Brady has pushed Project Exile. The idea that is a gun is to be allowed to all, that are not already a convicted felon, then Project Exile is just piling on charges when the initial criminal charges should be enough.

    Like the case of the Marine amputee in DC charged with his concealed gun while in a wheel chair leaving his car at a repair place and traversing to Walter Reed. DC tried him several time and the jury only convicted on an ammo charge, a misdemeanor. http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011302840.html?nav=rss_nation/special

    The original charge was a felony and it is too easy to get a felony charge these days for me to be comfortable with the idea that felons should not be able to have guns.

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