Apr 30, 2013
From Washington Examiner:
Just one in four younger Americans believe the nation is headed in the right direction, and a majority of so-called Millennials disapprove of President Obama’s gun control initiatives, according to a new Harvard University poll …
… The pollsters said that reflected “disapproval with President Obama’s proposals more than with legislative results in Congress.”
Millennials don’t seem to have the same appetite for fighting culture wars that Baby Boomers do, and that’s could become an issue for both parties.
Apr 30, 2013
So a poll says that 54% of Arizonans are either happy with the state’s gun laws, or want the law to be less strict, and what was the headline read? “Poll: Most Arizonans want stricter gun laws.” This is not even remotely accurate, given that only 42% of Arizonans said “the sale of guns should be subject to stricter laws.” This would, at best, be a plurality, if you ignore the fact that the rest of those polled said they were fine with the laws as is or wanted them to be less strict. There is no universe where this poll says that most Arizonans want stricter gun laws.
Apr 30, 2013
This is the case challenging the prohibition on 18-20 year olds being able to purchase a gun from a federally licensed dealer. You can find the opinion here. I haven’t read it in detail, because it’s rather lengthy, and I don’t have time. But skimming through the opinion, I think the Circuit Court seems to have done a combination of analysis through history and tradition, like we saw with Judge Kavanaugh’s dissent in the DC Circuit in Heller II, and intermediate scrutiny analysis. I wouldn’t go so far as to suggest the “Intermediate Scrutiny Two-Step” is at work here. This is what I have dubbed the practice of relabeling rational basis review, or something only slightly more rigorous, as intermediate scrutiny, in an attempt to uphold a favored law with a minimal burden put on the government, in terms of justifying the restriction. But I do want to take a look at some parts of the opinion that jumped out at me:
In the view of at least some members of the founding generation, disarming select groups for the sake of public safety was compatible with the right to arms specifically and with the idea of liberty generally.
This may be true, but what does it really tell us? Large numbers of the founding generation also thought chattel slavery was compatible with “the idea of liberty generally,” but changes in the Constitution since then have rendered many of these ideas moot. Granted, it shows us that the founding generation understood some controls over arms were acceptable, but it tells us little about what kinds of restrictions are acceptable. Are minors among “select groups” which can be disarmed “for the sake of public safety?”
Notably, the term “minor” or “infant”—as those terms were historically understood—applied to persons under the age of 21, not only to persons under the age of 18. The age of majority at common law was 21, and it was not until the 1970s that States enacted legislation to lower the age of majority to 18. See, e.g., Black’s Law Dictionary 847 (9th ed. 2009) (“An infant in the eyes of the law is a person under the age of twenty-one years, and at that period . . . he or she is said to attain majority . . . .” (quoting John Indermaur, Principles of the Common Law 195 (Edmund H. Bennett ed., 1st Am. ed. 1878))); id. (“The common-law rule provided that a person was an infant until he reached the age of twenty-one. The rule continues at the present time, though by statute in some jurisdictions the age may be lower.” (quoting John Edward Murray Jr., Murray on Contracts § 12, at 18 (2d ed. 1974))); see generally Larry D. Barnett, The Roots of Law, 15 Am. U. J. Gender Soc. Pol’y & L. 613, 681–86 (2007). If a representative citizen of the founding era conceived of a “minor” as an individual who was unworthy of the Second Amendment guarantee, and conceived of 18-to- 20-year-olds as “minors,” then it stands to reason that the citizen would have supported restricting an 18-to-20-year-old’s right to keep and bear arms.
That’s what the analysis should hinge on: is the age of majority 18 or 21? If the answer is 21, then the analysis can proceed from there. But I think you’d find precious few laws restricting the purchase, possession, or bearing of arms by juveniles during the time the Bill of Rights was framed. The Court essentially admits that:
To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction. The important point is that there is considerable historical evidence of age- and safety-based restrictions on the ability to access arms. Modern restrictions on the ability of persons under 21 to purchase handguns—and the ability of persons under 18 to possess handguns—seem, to us, to be firmly historically rooted.
I don’t think mere existence of some kinds of restrictions in historical record necessarily ought to mean that restriction is presumptively constitutional. I believe finding an analogous law in the historical record, and declaring the restriction constitutional, is lazy. A law, for instance, barring permanent residents from their right to keep and bear arms might find analogues in laws which prohibited loyalists, but because of the changes in the Constitution since those times, such a law should not withstand any level of scrutiny in modern times. I don’t think the existence of such laws inform us of much, other than many in the founding era shared many of the irrational prejudices held by people today. Also, you can find in the historical record, laws prohibiting selling or trading guns with Indian Tribes, which may have served a “public safety” purpose at one time, but that’s not to suggest it would still serve the same purpose now.
Nor do I don’t think the fact that a law existed, and has been longstanding, should be sufficient as to deem any such law constitutional. This is the “tradition” part of “history and tradition.” The Sullivan Act is both historical and longstanding, but is it common practice or an outlier? It would be hard to argue that something practiced by half the states, and upheld by numerous state courts, is an outlier. Something practiced by only small number of states or localities is an outlier, and not part of our general tradition on regulation of firearms. How many states require a license to own a gun? I can think of five? Maybe six. The Circuit Court points out:
Arms-control legislation intensified through the 1800s, see Cornell & DeDino, 73 Fordham L. Rev. at 512–13, and by the end of the 19th century, nineteen States and the District of Columbia had enacted laws expressly restricting the ability of persons under 21 to purchase or use particular firearms, or restricting the ability of “minors” to purchase or use particular firearms while the state age of majority was set at age 21.
The question, in a tradition and history analysis, ought to be whether such restrictions were widespread and accepted, and also whether they were enforced fairly and evenly. I’d not give too much weight, for instance, on the existence of a law that, by language, applied to everyone, but in practice was only ever enforced on disfavored minorities. I also think the nature of the restrictions needs to be at issue. How many amounted to a blanket prohibition on purchase? I think “history and tradition” analyses need to take this into account.
Alternatively, Congress could have sought to prohibit all persons under 21 from possessing handguns—or all guns, for that matter. But Congress deliberately adopted a calibrated, compromise approach.
Really? It could have? And would that have created any constitutional issues? So are the young deserving of absolutely no protection under the Second Amendment? Not even to possession for training purposes under supervision of a responsible adult? Perhaps Congress could have done that, but it shouldn’t say anything about whether or not it would be constitutional for Congress to do so.
I don’t deny that from a legal standpoint, this is a complex issue. Eugene Volokh spoke of this in his quite widely read paper on this issue:
The rule that majority begins at 21 endured until the early 1970s,281 so most right-to-bear arms provisions were thus enacted while 18-to-20-year-olds were technically treated as minors. And the same issue arises as to other rights as well: Consider, in the First Amendment context, a recent proposal to set 21 as the age of consent for being filmed or photographed naked or in sexual contexts, and the possibility that this is already the law in Mississippi and as to under-19-year-olds in Nebraska. Consider the Nebraska requirement of parental consent for marriage of under-19-year-olds. Or consider the Alaska law barring possession of marijuana by under-19-year-olds even though the Alaska Supreme Court has interpreted the Alaska Constitution’s right to privacy as securing adults’ right to possess small quantities of marijuana at home.
I’m skeptical about this argument, because the pre-1970s cases that I’ve seen involving lesser constitutional rights for minors—lesser free speech rights, lesser religious freedom rights, and lesser criminal procedure rights—involved age cutoffs of 18 or less. Whatever setting the age of majority at 21 might have meant for purposes such as contracting, parental authority, and the like, it seems not to have affected those other constitutional protections. At the same time, for much of our nation’s history, the right to contract was seen as an important constitutional guarantee, and that right was not fully secured to 18-to-20-year-olds. The matter of the historical constitutional rights of 18-to-20-year-olds warrants more research.
I also think it should not be overlooked that this is a federal restriction rather than a state one. If a state wants to lower its statutory age of majority from 21 to 18, to what extent does the federal government have the power to override that when the exercise of a constitution right is in question? Indeed, every state save Alabama (19), Nebraska (19) and Mississippi (21) have age of majorities at 18. I tend to think the federal government ought to face a substantial burden in justifying this restriction. Why can’t the states arrive at a new consensus on age of majority? What other rights could the federal government restrict contrary to that new consensus? How do you square this with Congress’s other enactments which declare anyone to be 18 years or older an adult?
This was a more rigorous analysis than most federal courts have engaged in when considering Second Amendment issues, but is still insufficient treatment for a fundamental constitutional right.
Apr 30, 2013
Bloomberg and Menino capitalize on the Boston Bombing to promote their anti-gun political agenda. Quotes Glenn Reynolds saying:
Reynolds said people can be placed on terror watch lists without evidence, based on suspicions, saying, “It hasn’t been adjudicated … the government doesn’t take its own list seriously enough to keep track of the people on it when foreign governments call attention to them. Why should we believe it’s solid enough to take away people’s rights?”
“Menino and Bloomberg should be ashamed,”
Apparently the serial number had been obliterated on the bomber’s pistol. That’s usually a pretty strong indication it was obtained from black market sources. Those guys don’t do background checks. The brothers also could have done the obliterating themselves. It should be noted that obliterating a gun’s serial number is a violation of federal law, and most states have laws against it as well. And they wonder why we say gun control doesn’t work? I’m sure everyone is comforted that they can add that charge onto the laundry list the remaining bomber will be facing.
Apr 30, 2013
I do consider Mike Bloomberg’s money a serious threat to our Second Amendment rights. When it comes down to it, he can pay people to stand up against us and pay for ads to take up every single commercial break in key media markets. Like it or not, money talks and influences.
However, I was recently reminded about that other billionaire white old man who figured that if he could just throw enough money at the issue and start a new group with an innocent sounding name, then he could get more gun control. Anyone remember Andrew McKelvey and Americans for Gun Safety?
Back in 2001, AGS shot onto the scene by suddenly spending more than $1.8 million on lobbying Congress for gun control. This came after some federal spending in 2000, as well as a big state push focused on Colorado. Regardless, their 2001 reports showed more than seven times the spending levels of the Brady Campaign, VPC, and CSGV combined in the same year. (Remember, this was back when those groups actually had some money to spend.) Beyond their own internal lobbying expenses, they also hired two additional lobbying firms.
The following year, they dropped their federal lobbying expenditures to just under $1.4 million, but they were still the big lobbying players in the game in total spending and by expanding to hire three lobby shops to assist them.
In 2003, their lobbying efforts had fallen to less than $700,000, but that number was still more than any other group could afford. They cut back to only one additional lobbying firm to help out. A year later, at the height of the debate over semi-auto gun bans, they cut their spending to just over $275,000 and let the Brady Campaign take the lead in the gun control movement again. However, they did retain a new outside firm to assist. By 2005, they were no longer spending any money in the federal lobbying game and eventually saw their foundation folded into Third Way.
I’m not saying that we can get cocky and ignore the threats by Mike Bloomberg toward our fundamental rights. What McKelvey was willing to spend in their biggest year is less than what Bloomberg spent on just one Congressional special election to hold a Chicago seat. Bloomberg will not go away quietly. However, I thought that it should be noted that real grassroots action can compete against the big bucks of billionaires who want to tell you how to live your life.
Apr 29, 2013
It looks like the anti-gun groups are flying in non-residents in order to campaign for Democrats in New Jersey.
Let me repeat that.
The anti-gun groups in New Jersey are resorting to flying in Newtown, CT families in order to participate in Democratic campaign meetings and to lobby for gun control. This is New Jersey, it’s amazing they have to fly in outsiders to promote Democrats and make the state more anti-gun.
Of course, local gun owners are also planning to visit the State House and remind lawmakers who they really represent. Let us hope that these lawmakers remember that these Connecticut residents don’t vote in New Jersey.
Apr 29, 2013
That absurdly long headline sums up the contents of this UPI article.
I kid you not, there’s an entire piece running documenting the complaint of a single “Democratic political consultant” who supports gun control about how gun rights groups aren’t helping her to pass her partisan agenda.
“We have to balance the right to bear arms with the right to be safe. A gun giveaway right now inflames emotions and does not help us achieve that goal.”
How is this considered news? Would it make headlines that I did not assist the Brady Campaign in their effort to ban guns that I shoot? Is it now a major news story that I am not offering my services to Mike Bloomberg’s MAIG coalition to keep people who have no criminal record from owning guns? I mean I don’t do these things every day. I didn’t realize that it was somehow newsworthy.
Apr 29, 2013
Good at campaigning, bad at governing:
President Obama is a good campaigner. He won the big one twice and effectively made Republicans question their electoral existence. He also has shown once again, by not effectively managing his own agenda, that he has no appetite for governing.
Nothing proved that more than his approach to gun-control legislation …
It takes more than delivering a good speech from a teleprompter to get legislation done. In this late round with gun control, we’ve benefitted from a few things:
- We’ve legitimately shifted the culture.
- Barry doesn’t have the money to buy votes that Bill Clinton did.
- Barry isn’t nearly as good at governing as Clinton was.
Apr 29, 2013
This is an interesting analysis from someone on the other side. They make a lot of good points I would agree with, but I think the root of their problem is there just isn’t much grassroots energy in gun control. If there was, there would be a stronger impetus to become well-organized. Despite what many people on their side of the issue believe, NRA is a manifestation of the hunting, shooting, and Second Amendment supporting community, rather than a top-down outfit. A great deal of the organizing and activism that went into defeat this latest round of gun control came from outside NRA Headquarters in Fairfax. NRA plays a role, for sure, but without the millions of people who back the organization, it would not be effective.
MAIG is the latest, and now the most effective group to join the fight for gun control, and it is a top-down organization funded almost exclusively by a super-rich mogul, rather than a manifestation of a bottom-up movement. It remains to be seen how effective the new left, represented by MoveOn and OFA, will be at promoting gun control. Gun control has always been a movement of a few elites on the top, who market gun control to the media and political class. What grassroots activists they do have are often people channeling unresolved grief, and who often lack great organizational or political skills. There are simply far more people are involved in the shooting sports, or who own or carry guns for self-defense than there are people who are truly motivated to discourage or prevent that.