DC Circuit Overturns “Good Cause” Requirement

This opinion was just handed down today, before Judges Griffith and Williams who were in the majority, and Judge Henderson who dissented. I’d note that Judge Griffith was a George W. Bush appointee. Judge Williams was a Reagan appointee, and Henderson an George H.W. Bush appointee. Elections do matter, and as I’ve said before, we can move the ball forward even with very flawed candidates.



This point brings into focus the legally decisive fact: the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self- defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. We say “necessarily” because the law destroys the ordinarily situated citizen’s right to bear arms not as a side effect of applying other, reasonable regulations (like those upheld in Heller II and Heller III), but by design: it looks precisely for needs “distinguishable” from those of the community. So we needn’t pause to apply tiers of scrutiny, as if strong enough showings of public benefits could save this destruction of so many commonly situated D.C. residents’ constitutional right to bear common arms for self-defense in any fashion at all. Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test that was appropriately written and applied, so we strike down the District’s law here apart from any particular balancing test.

Finally, a court willing to reject interest balancing approaches to the Second Amendment! The ruling upholds licensing for carry, which is disappointing, but at this point eliminating “good cause” requirements and rejecting the assertions that entire cities can be off limits to carry is a step in the right direction.

We pause to draw together all the pieces of our analysis: At the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense.

One thing I’d notice, however, as we look toward this case possibly moving forward, is that Justice Kennedy has not announced any retirement, and it’s getting late in the summer. The Court goes back to work September 25th.

Not So Smart Gun

Really, this can never work without some kind of electronic primer. Anything else is just feel good theater.

Did the Brady Campaign Explain the Risks? Why Aren’t They Paying Up?

Mother Jones has an article about the Phillips suit against Lucky Gunner, et al over selling the Aurora killer ammunition. Mrs. Phillips notes:

Working for the Brady Campaign became a flurry of media appearances and meetings with politicians, police, and survivors. The Brady leadership also encouraged Lonnie and me to sue Lucky Gunner, the dealer that sold the stockpile of ammo to Jessi’s killer. We agreed that dealers should have to take some responsibility. Shouldn’t they have to vet a buyer of military-grade weaponry? Or a buyer of bullets en masse? The primary goal of our lawsuit was to make the gun dealer change its business practices—at a minimum, to ask for proof of identity and do a background check.

The PLCAA does not exempt suits for negligence per se, which means that if Lucky Gunner violated the law, they can be liable despite the PLCAA protections. This is exactly the kind of lawsuit PLCAA was meant to stop: roughly the equivalent of suing a gas station that sold a tank of gas to a drunk. Lucky Gunner broke no law. They did not have any idea what the killer intended, just as no gas station could possibly know someone filling up is a drunk who might later that day get tanked and plough into a van with kids. The Aurora killer was not a prohibited person, because despite being out of his gourd, he never came in contact with the mental health system to become prohibited. He purchased his firearm legally after passing a background check.

Today, after nearly five years of activism, Lonnie and I continue to struggle. We filed for Chapter 11 protection in January because we could not afford to pay the legal fees for Lucky Gunner.

I’ll assume here that she means Chapter 13 protection, because that would be the typical filing for this kind of personal bankruptcy. But I think it’s terrible that she’s having to apply for personal bankruptcy when it’s the Brady Campaign that encouraged her and her husband to file a frivolous that was doomed the failure, and where the statute allows recovery of attorneys fees for such suits deemed frivolous. They should have warned them, and been ready to pay up when the inevitable happened. Sounds to me like they might have a pretty good case against the Brady Campaign and its lawyers!

Because I Don’t Know the Answers, It Means There are No Answers!

These days, you don’t see much in the way of ridiculous op-eds on guns being published in the papers. Neither the media or the NRA are paying much attention to the gun issue today, and media is all too happy to attack NRA over their latest nothing-to-do-with-guns attack ads.

Every single one of these old lady’s complaints could be successfully addressed by training. It would relieve her of our ignorance on this topic. But I suspect she’s not about to seek training, because the parade of ignorance that is her op-ed wasn’t about that.

But I do have to hand it to her writing an op-ed about guns. She seems more interested in the gun rights battle these days than NRA is, at least.

NDAA Would Allow 1911s to be Sold Through CMP

Good news if it passes:

Included in the NDAA was an amendment I offered that would allow the Army to release excess 1911 pistols from storage and transfer them to the Civilian Marksmanship Program (CMP) for them to inspect, grade, prepare for sale and sell the pistols to the public.

Now if we could just get an exception to the “once a machine gun, always a machine gun” rule and allow semi-auto converted surplus M14s to be sold through CMP.

Quote of the Day: Policing

Tam commenting on the recent shooting of an Australian woman by an apparently jumpy Minneapolis cop:

Policing is generally something folks get into because they knew they always wanted to as a kid, or because it’s a reasonably easy gig to land getting out of the military. It’s the ones who suddenly decided in their thirties that they wanted to drop everything and be Batman and a Force For Good that worry me.

I think people also go into law enforcement because their parents were in law enforcement. But the point is very well taken. Read the whole thing.

One More Thought …

Following up on the previous post … in the great monopolies of the 20th century, IBM and Bell Labs, to name the big players, maintained great laboratories of innovation. If they were going to be monopolies, they wanted the public to feel they were benefiting from it. We’re still benefitting from much of the innovation today that has come out of those two monopolists in the 20th century.

The robber barons of the 21st century will captivate the public imagination with space travel, supersonic transport, electric cars, and other wonders. They will do their best to bring us the future we were promised, so we will also remain happy with our monopolies and accept their political power.

There has to be a balance. I don’t believe the economic and social policies of the 20th century will achieve what we need, and I notice a lot of the elders in my life are myopically still fighting yesterday’s battles, and settling old scores which don’t honestly matter anymore.

One thing I do believe is that Trump and Obama are both transformative figures. They are two peas in a pod, even if neither they nor their supporters could ever accept that. Both are products of the 20th century post-WWII political arrangement. Sooner than most anyone else, they came to understand the post-WWI arrangement was breaking down. Wishing to make their mark on the world, both are now locked in a struggle to replace that order, but neither of them are really in a position to do so. Something will replace that order, but whatever it will be, and whoever will be its standard bearer, has not fully developed.

I Guess it Took Modern Day Robber Barons to Realize This

One area where I’ve always departed with libertarian market purists is on anti-trust, but I could never really articulate it well until now:

One place where I break with the Borkian consensus on antitrust is that I don’t think the Sherman Act was about maximizing consumer welfare so much as it was about inhibiting the growth of unaccountable political power. (The drafers of the Sherman Act, of course, weren’t aware of Bork’s theories.) We’re seeing a lot of unaccountable political power here, and it’s going to get worse if nothing’s done.

I probably couldn’t have come to the conclusion in my 20s, but these days I think political power and economic power aren’t really separable. The latter breeds the former.

If you worked in tech in the 1990s, you remember Microsoft using its monopoly in operating systems to essentially strangle Netscape. By the time the government came around to dealing with that, technology had moved on. Back then I felt it was a pretty good example of how anti-trust law wasn’t really well suited to a post-industrial economy such as ours. But Microsoft’s great accomplishment was swindling IBM out of their monopoly on computing. Jeff Bezos has laid waste to main streets across this country. Google has absconded with the advertising revenues of all the local news rags we grew up with. Don’t even get me started on Facebook.

And we all cheered while they were doing it. What a fool I feel like for believing technological and free market progress would eventually solve all our ills. I might not believe Trumpian populism is the answer, but I can’t help but say we’re in a hell of a pickle now.


When it comes to issue advocacy or issue activism, I’ve never believed it’s beneficial to do battle with a caricature in your head about what the other side is like. You have to study their arguments, study their behaviors and inclinations, and how they organize themselves.

At the end of the day, if you don’t feel like you could successfully hold your own on their side of the debate table, using their arguments, you’re probably not being thorough enough in understanding your opponents. To defeat their ideas, and confront who they are, you need to actually know them.

That’s one reason I will read Ladd Everitt’s column. I want to share some tidbits from his latest:

The modern-day NRA is a white supremacist group that — because of the success of its lobbying at the federal, state and local level — is given broad legal authority by the government to sell weapons to the general public for profit.*

NRA is a multi-billion dollar a year organization, and only a small fraction of its revenue comes from the gun industry, either directly or indirectly. Brownells the company is, first and foremost, an accessories company. So is MidwayUSA. Both are some of NRA’s biggest corporate contributors, most of it being through the “Round-Up” program. That means that the donations are still sourced from individuals in small amounts. This is not bullshit. These are verifiable facts.

I’ve spent a lot of time at NRA meetings, much of which has been in environments frequented by ordinary members. I have never heard any white supremacist rhetoric in my entire history at Annual Meeting. In fact, I seem to recall last year NRA honored Josephine Byrd, the plaintiff on the Wilmington Housing Authority case, to the cheers of 20,000 or so apparent “white supremacists” in the room. I can also recall this past meeting, a line of people lined up to meet Colion Noir. Sound like the behavior of white supremacists? I don’t think so, especially given the number of people lined up were black. I also recall this supposed white supremacist pro-gun community rallying behind Shaneen Allen. I could go on.

I’m not going to claim that all 5 million NRA members are bastions of racial tolerance and understanding. Like any group with that many people in it, there are going to be some that are racist assholes. But I’m not really angry with Ladd for saying this. In fact, I hope he keeps doing it.

They are All-In at this point on a strategy to make conservative whites repeat gun customers for life (this includes white law enforcement officers as well, as recently highlighted by Radley Balko in the Washington Post).

Yes. Please keep this up, because this is not the rhetoric of a person who is concerned with winning. I think both Balko’s article and Ladd’s statement here are important. Our opponents have spent a lot of time and money trying to demonstrate to the public that the cops are on their side. There’s an important reason for that. Here you see them conceding the point. They might not be directly conceding it, but you can’t accept that Radley Balko has a point without also acknowledging a lot of NRA’s member support comes from cops and law enforcement families.

NRA has made a huge gamble, or perhaps that ought to be yuge gamble, in lashing their ship to Donald Trump. NRA’s bet is that essentially the Democrats will not come back from the wilderness by doubling down on the Obama coalition. To make a come back, they will need to soften their rhetoric and come back to the center, remembering that the Dems last time came back by a process that encouraged pro-gun Democrats.

My fear is and will remain that it’s a very risky bet, because I’m not sure the Dems are wrong about demographic trends. NRA hasn’t done as well as it needs penetrating outside its traditional demographic. It’s made some progress, but I worry not enough. But NRA has been playing Trump’s game since before Trump made it cool, and they are very good at it.

I will continue to rail against NRA dragging itself into the right culture wars, because I do ultimately think while we may see short term benefit in it, long term it’s not a winning strategy. But I’ve made big bets against the NRA before and turned out to be wrong.

Women’s March on NRA

The same people that organized the gigantic post-inaugural Women’s march decided to target NRA headquarters. The number I’ve heard is 212 people, including press. Pictures would seem to back that up.

As I saw on social media: “I’ve taken shits bigger than that rally.” That’ll show em! How many do you think will make the 17 miles to the DOJ building in DC? It’s a pretty long walk even to the Metro.

I will continue to assert: the left doesn’t give a shit about gun control. Ladd Everitt’s theme lately is trying to convince Progressives not to buy guns. He’s come seriously unglued over this. This is not what a successful movement looks like.

And why on earth would you march people 17 miles in July when you know you have commitment issues, and most of the people who care about gun control are old? The whole idea is a recipe for fail. But I’m not one to interrupt my opponent when they are in the middle of making a mistake.

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