Jun 30, 2014
Thanks to Bearing Arms for pointing to Dick Metcalf digging ever deeper whining about the premature demise of his career. He also shows a poor understanding of the standard model of the Second Amendment.
The Second Amendment says the right of the people to keep and bear arms shall not be infringed, Metcalf noted, “not that it shall not be regulated.” Rather the first four words of the amendment, “a well regulated militia,” not only allow but mandate regulation.
We’ve been over and over this, again and again. The prefatory clause is simply a justification for acknowledging the right. There are other such prefatory clauses in the Constitution, such as:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
People have argued, in front of the Supreme Court, that the prefatory clause meaningfully modifies the nature of the power in question, and the Supreme Court rejected the idea. Only two justices tried to argue that the prefatory clause limited the power to only those things which promoted the progress of science and useful arts. The structure of the Second Amendment is nearly identical. The prefatory clause, which states the case for acknowledging the right, does not meaningfully limit it, anymore than the patent and copyright prefatory clause limits Congress’ power. That’s without even needing dissect the 18th century meaning of “well-regulated,” which in this case means regulated like a clock, and not regulated like a chemical plant.
“Everything is regulated, but everything is not infringed. Not all regulation is infringement. Is your right to drive a car being infringed by a speed limit?”
There is no right to drive a car. Some may say there ought to be, and I would be among those who would agree with that, but current law treats the “right” to drive a car on public roads as a “privilege.” If it was recognized as a right, things might be different. Also, a speed limit only regulates what you may do with a car. No one would argue the Second Amendment is so absolute as to preclude how one may employ a firearm. You have no Second Amendment right to rob a bank with a gun. No one would argue that you have a Second Amendment right to shoot across your neighbor’s yard, or shoot across a public road or waterway absent any exigent circumstances. That’s very different than some of the regulations Metcalf has advocated for, which would amount to a prior restraint when it comes to other rights.
Those are debates we can have. Some have argued that the prior restraint doctrine from First Amendment law might not be completely applicable to Second Amendment law, and I don’t see people calling for Dave Kopel’s career on a platter. The problem with Metcalf’s article, and his continuing statements in the media was/is ignorance. I can point to numerous examples of people getting away with the kind of things he’s been saying without getting skewered. Metcalf’s problem is he’s adopted many of the shopworn arguments of our opponents. No one argues the Second Amendment is absolute, or that we could reasonably expect the courts to find it as such. There’s plenty of room to argue about this or that. But when you adopt the same rhetoric and tired arguments as our opponents, people are going to react badly. That’s what Metcalf did, and has been continuing to do.
Jun 30, 2014
It looks like a Pennsylvania gun show vendor may end up facing a reckless endangerment charge after he accidentally shot a customer in the leg. Not surprisingly, the gun show organizer told him to pack up his table and get out.
The vendor is trying to claim that someone else must have loaded the gun while he had his back turned, and then when he picked it up to show the woman the gun in a holster, it went bang and she was injured. There’s so much that sounds wrong here, I’m not going to speculate.
Jun 30, 2014
Thanks to several people who earlier in the weekend had sent the news that Google was about to bring forth greater restrictions on gun advertising. I was confused as to what was new about this, because I was pretty certain Google had restricted these items some time ago. I certainly would be a prime site to place some of those ads on, and they don’t appear. So what’s really new about this? Bob Owens took a look, and the answer is “quite frankly, much ado about nothing.” I’m glad to hear that, because Bing sucks. Google is one of those products I wouldn’t frankly be able to boycott. It would be like boycotting roads.
Jun 30, 2014
Virginia gun lawyer John Frazer has information for Fairfax County concealed carry permit holders who may be facing minor misdemeanor charges that won’t impact their eligibility. According to John:
Fairfax County gun owners should be aware that the Circuit Court clerk’s office may treat concealed carry permit applications as incomplete, and forward them to a judge for review, based on disclosure of pending criminal charges. …
People whose applications are denied in this situation can either wait until their pending charge is resolved, or challenge the denial in an ore tenus (“word of mouth”) hearing in circuit court.
There’s a little more that people who might know someone in this situation should read.
When I renewed my permit there, they tried to play games with me, too. I was told that I would hear back in just beyond the deadline. I asked her if she meant to say that they would have a permit to me before the deadline, and it’s clear she was not happy about an informed applicant. I got my renewal on the last possible day.
Of course, she was also probably a little angry at me because when I said I was renewing, but the county it was issued from was Montgomery County, she went off about how it’s not a renewal from another state and how I needed to learn my new local laws, etc. When she stopped, I finally let her know that there is, in fact, a Montgomery County in Virginia that issues Virginia carry licenses. (h/t to VSSA)
Jun 30, 2014
This is off topic, but it’s the big case of the year, so I thought it warranted coverage. The Supreme Court issued a narrow 5-4 decision in Hobby Lobby’s favor. Narrow because the decision only applies to closely held corporations, and applies to contraception mandates, but not to all insurance mandates. I tend to agree with the applicability being only to closely held corporations, in it would be difficult to divine the religious views of a widely-held, public corporation. Objections would tend only to reflect the views of management, who are in no respects representing the will of shareholders. It would be interesting to know what affect this would have in a non-profit corporation, say, a Catholic Charity, but I suspect it would apply to them as well. It would be less clear how this would apply to a membership non-profit like the NRA.
I’m more skeptical of the notion that the RFRA doesn’t apply to all insurance mandates. If a Christian Scientist business doesn’t want to offer coverage for “blood transfusions or vaccinations,” who are the courts to come along and say some people’s religious beliefs against contraception or abortion more legitimate than other people’s religious beliefs against blood transfusions or vaccinations? That’s the government deciding some religions are greater religions, while others are less so. It smacks of establishment to me.
Jun 26, 2014
Given what I had heard about the trial, and the fact that the judge seemed to be a gun owner, I was optimistic that maybe this case wouldn’t end up being the typical District Court loss, but that would appear not to be the case. Grab your partner, gather round, and dance the intermediate scrutiny two-step on more time! Now granted, in the realm of Second Amendment opinions, I’ve read worse. I’ve actually read far worse, unfortunately. But I’m tired of this right being treated like the crazy uncle in the attic of American rights by judges. You don’t get to do that. The footnotes in this case are particularly tough to stomach:
The M-16 rifle mentioned by the Court is a military version of the AR-15 rifle, a rifle that several witnesses in this case testified that they possess for their own self-defense purposes. If, as Heller implies, the M-16 rifle can legally be prohibited without violating the Second Amendment, it seems to follow that other weapons such as the AR-15 may also be prohibited, notwithstanding the fact that some individuals believe that such weapon is important, or even essential, to their self-defense.
The M16 is a machine gun, Judge. The AR-15 is not. The AR-15 functions entirely differently. I don’t think that can just be glossed over so casually. Would it be legal to ban any firearm that has a military full-auto equivalent? Even the Browning BAR hunting rifle is based on a full-auto, military design. There’s a military version of the Glock pistol, and the Beretta pistol. This is poor reasoning.
After that, there’s this footnote about the paradox of better-trained users needing less rounds in a magazine:
There is a curious paradox here: the more competent the defensive firearm user, the more likely he or she is to hit her target with fewer shots, and thus, the less likely that user is to need a large-capacity magazine for defensive purposes. By contrast, the less competent or confident the user, the greater the number of rounds the user perceives he or she needs. One wonders how these perceptions are affected by exposure to military grade weaponry in news and entertainment.
What she doesn’t understand is that the dirty little secret is a big reason that cops almost universally carry large caps these days is because they need them, often due to poor firearms training. There is honestly no argument here that applies to civilians is not equally or more applicable to cops. Courts should not overlook police use in these cases. If magazines holding more than X rounds are routinely issued to officers, then they should be protected arms for civilians as well. End of analysis. We should not require civilian firearms owners and carriers to be trained gun ninjas, while we allow police officers to roam the streets with firearms, many of whom get no more practice in than their yearly qualifications.
The judge read the Americans with Disabilities Act narrowly in considering the ADA claims in the suit, arguing that because the laws didn’t create any particular government service that discriminated against the disabled, the ADA was no obstacle to the law. The claim seems to be that the ADA doesn’t apply to laws that discriminate against the disabled, only services. I don’t know enough about the ADA to comment on this.
This judge was a George W. Bush appointee. It was apparent during the trial she knew something about guns, and there seem to be evidence to believe she may actually own one. But this shows how utterly hostile the ruling class is to civilians being well-armed, and at least as well-armed as the police. I’m sure this will be appealed, but I am not optimistic. I’m afraid the only way Coloradans are getting rid of these new laws is to repeal them. The courts cannot be counted on to give meaningful relief for infringements on this fundamental right. The refusal of the Supreme Court to hear any further cases on the matter will only embolden lower courts in their efforts to marginalize the right. The Second Amendment is to remain the crazy uncle in the attic of the Bill of Rights for the foreseeable future.
As always, I encourage everyone to read the opinion. It is important for every Americans to understand how much judges do not care for this right, and do not care to treat it seriously. The only way we win is by punishing anti-gun politicians and electing pro-gun politicians. Everything else is window dressing.
Jun 26, 2014
When anti-gun lawmakers in Pennsylvania want to derail a pro-Second Amendment bill, the first amendment they usually reach for is a ban on pigeon shooting. The ban is opposed by NRA, but they know they can pull a few lawmakers off from the coalition who will vote in favor of the ban. It’s basically their own little poison pill amendment.
Well, it looks like the sponsors finally decided to attach it to a non-gun bill today. If it hasn’t already happened, then it’s expected to get a vote today as an amendment on a bill that bans the consumption of cats and dogs. I don’t see any votes on the Senate Judiciary website for an amendment, nor do I see any amendments from the Senate on the bill history page.
It will be an interesting issue if this does end up going to a vote on a non-gun bill. It takes one of the biggest tools of the anti-gunners off of the table for stalling future pro-rights legislation. That’s typically a good thing. It’s an issue where I don’t think the activity should be banned, but the fact is that it’s an uphill climb to defeat the ban every time it comes up. I really hate the idea of throwing any member of the shooting community under the bus, but I’m also kind of tired of seeing everything else sidelined because of this one issue.
We’ll see how it works out – if it’s going to be a continuing issue for gun bills or if it was pulled from the calendar again.
Jun 26, 2014
It’s nearly 2AM, and my work was interrupted about an hour and a half ago because a relatively mild storm knocked our power out. I was this frigging close || to ending the crisis at the client and getting us some breathing room. It amazes me I weathered Irene and Sandy without losing power, and now I’m pushing two hours being out from a practically nothing storm. I have three UPSes to power my whole operation at the home office, and when things start running down, I feel like this:
We’ve already run down the UPS that powers the server. That’s on double backup, which consists of a marine deep cell battery with a 300W inverter. The blog will stay up as long as that lasts, but in the morning if we still don’t have power, it’s generator time.
Jun 25, 2014
ANJRPC is alerting members to keep up the pressure on Gov. Chris Christie:
Please keep urging Governor Christie to veto A2006 / S993 (gun ban / mag ban). We must continue to mount a sustained campaign until the Governor acts. If he takes no action, the bill will automatically become law when the deadline passes in early July. Talking points on this legislation can be found here.
Jun 25, 2014
Bob Owens highlights a blog post that asks when the government will just start taking out “non-criminal cranks — scofflaws and political malcontents” just to prove a point that they are in charge.
I just don’t even know how to respond to that. The fact that she states she wants to see people with whom she simply has a political disagreement with gathered up by our government forces and “mow[ed] down,” even if, as she acknowledges, they have committed no crimes is just beyond my comprehension as a normal human being.