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Currently Browsing: 2nd Amendment

To All the Gun Voters Who Worked Hard: Thank You

I spent a lot of time and effort trying to convince people, despite serious flaws in their record on the gun issue, to vote for John McCain and Mitt Romney. I thought Barack Obama was going to be a disaster for gun rights, and he very nearly was! I don’t regret what I did, because we’d be 7-2 on the Second Amendment right now on the Supreme Court if McCain had won. I feared one of the Heller Five would not make it to the end of an Obama second term, and I was right. I did not expect the GOP to grow a pair and block Obama from putting a third Justice on the Court, but thank God they did. Even if the best McCain could do is Papa Bush, we’d at least be 6-3, which is a better place to be than 5-4.

But I can’t ask people to do something I am not willing to do myself, and I just couldn’t work up enough enthusiasm to shill for Trump, and my down ticket races were Toomey and Fitzpatrick. A lot of people were enthusiastic for Trump, and did the necessary and often unenjoyable ground work needed to win elections. The future of the Second Amendment will probably owe them a debt of gratitude. I’m sorry I could not join you this time, but I will continue to do what I can to fight the good fight in a future of hopefully better candidates.

I do not trust Trump, but hopefully he at least knows where his bread is buttered and gives us some decent Supreme Court picks. I am hopeful he’ll be a better President than I expect. The people have spoken! God help us, they have spoken.

Don Kates Dies

This is a real loss for our community:

I’ve received the following. For those who can remember the beginnings of the 2A movement, Don was the person who took it mainstream, with his article in the Michigan Law Review. He thereafter served an invaluable function in reaching out to academia […]

His work represented a key foundation of the Heller and McDonald decisions. I think it’s reasonable to argue that without Don Kates there would have been no Heller and McDonald. It would be awful for his memory if those cases end up reversed or limited to meaninglessness by future courts. Let us hope that does not happen.

Late Season NRA Ad

This one pretty much successfully sums up what’s at stake:

I’ve found a lot of folks who don’t seem to understand that the Second Amendment is not self-enforcing. You’d think this would be kind of obvious, but you’d be surprised how many people think just because the words are on a piece of paper that actually means something. When you start explaining it, I think inherently these people get that it’s not, just that they have such a difficult time wrapping their heads around the idea that federal judges would engage in such blatant skulduggery as to suggest the amendment doesn’t mean what it plainly says.

Our only hope for saving the handful of bad states for gun rights is the federal courts. If Hillary picks Scalia’s replacement, that path will be foreclosed for a generation. In that scenario, I’d be lucky, very lucky, to live to see that damage undone. Most of the folks who laid the foundation for Heller and McDonald will not live to see it. We’ll be lucky if we don’t see those cases reversed entirely.

Heller & Toddlers

I’m guessing we uncovered a bug in Hillary’s latest firmware update when she mentioned that the issue at hand in the Heller case was protecting toddlers. It’s like she watched the latest Brady video, and that confused the programming.

Fortunately, Hillary has the shills at Politifact to cover for her. Because DC claimed its safe storage laws were meant to protect babies from guns, of course it must be true! Because gun control people always raise the “For the Children” cliche, it is perfectly valid and factual.

Fact: the word “child” nor “toddler” can be found at all in the Heller decision. It was about whether a 66 year old security guard was allowed to keep a firearm in the home and ready for self-defense. Hillary Clinton has said she is opposed to the Heller decision. When she claims that this is about the children, she is out-and-out lying.

Hillary and the Second Amendment

Charles C.W. Cooke has a pretty good article challenging the left’s “You paranoid sensationalist gun nuts always thinking people want to take your guns! Of course Hillary doesn’t want to repeal the Second Amendment.”

As anybody with an elementary understanding of American law comprehends, one does not need to call an Article V convention in order to effectively remove a provision from the Constitution. If, for example, Donald Trump were to claim tomorrow that the First Amendment did not protect an individual right to speech, how do we imagine that the press corps would react? Do we think that the New York Times’s editorial board would nonchalantly say “well, that’s fine because he hasn’t called for Article V repeal”?

Even without overturning Heller, her nominees would still have the opportunity to narrow to meaninglessness. Sure, outright bans might never come back, but de-facto bans, like the one that exists in New York City, could be upheld. Even Washington D.C. responded to Heller by enacting restrictions that were still quite onerous, and would never be considered acceptable in the context of other Constitutional rights. Chicago fared a little better, but only because the 7th Circuit was unusually cooperative, and it bolstered the negotiating position of the rest of Illinois, which favors gun rights. Without a fourth and strong pro-2A Supreme Court ruling, the Second Amendment is already dead letter.

Stun Gun Rights Spreading

Eugene Volokh takes a look at various stun gun bans. A lot of states and localities were moving in the direction of repeal before Caetano v. Massachusetts. So far, post Caetano repeals:

  • The US Virgin Islands
  • Baltimore County (though it is still on the books, but the County Attorney has announced it will no longer be enforced)

Philadelphia still has its ban in place, but at this point it’s hard to see how it would be enforceable in light of Caetano. Like I said when the ruling came out, I don’t think anything should be read into that ruling in regards to how the liberal justices would treat a firearms case, but I can’t discount the fact that Caetano was a good ruling. If we can defeat Hillary, and get a few more friendly justices on the Court, it would be possible to build on this ruling in a positive way. If things go the other way, I think we’ll be lucky to hold on to Heller and McDonald.

I hate to admit that, because I don’t like Trump, but that’s the way it is.

Supreme Court Denies Appeal to Connecticut Assault Weapons Ban Case

The Supreme Court has denied cert in Shew v. Malloy, the challenge to Connecticut’s enhanced assault weapons ban, which was passed after Sandy Hook. This will leave the ban in place. It’s probably the best possible outcome after losing Scalia, so we shouldn’t be too disappointed this was the result. It would have been far worse for cert to be granted and to lose the case, which we probably would have.

Reading the tea leaves a bit, which is always dangerous, this at least tells me the four Dem appointees on the Court probably aren’t interested in taking Second Amendment cases while the court is split four to four.

A Strategy for Opposing Terror Watch List Legislation

Charles C.W. Cooke is onto something here, in his very Glenn Reynoldsesque suggestion:

I shan’t re-rehearse my case against the civil use of terror watch lists here; those interested can read my three offerings from last year here and here and here. But I will suggest a modest course for those in Congress who remain opposed to this folly: Why not amend any bill so that it covers the entire Bill of Rights? Hillary Clinton is on record suggesting that the United States should impose some censorship on the Internet so that would-be terrorists cannot communicate with one other. Well, if the prospect of terrorists using the internet really is that dangerous — and if those who oppose Clinton’s coveted reforms are just dogmatically wedded to outdated concepts such as “freedom of speech, et cetera . . .” – then there shouldn’t be any problem with the federal government preventing anybody suspected of terrorism from using a modem, should there? Sure, at one point in American history it made sense to require due process before we stripped core rights. But that was back in the days of pamphlets and printing presses, not now when one can spread information across the world in the blink of an eye.

Read the whole thing. He also has clearly read his Alinsky: make them live up to their own standards. The arguments the Dems will make against this will destroy their own arguments for the gun portion of it.

Not all news from New Jersey is bad

Scott Bach wins one in New Hampshire for out-of-staters.

Third Circuit: No 2A Right to Machine Guns

Thompson Submachine Ad

This decision was released right before I left for Louisville. The Third Circuit contains Pennsylvania, Delaware and New Jersey, and has not, in general, been a very Second Amendment friendly circuit.

Heller and subsequent decisions in our Court make clear that the de facto ban on machine guns found in § 922(o) does not impose a burden on conduct falling within the scope of the Second Amendment. Turning first to Heller, we note that that opinion discusses machine guns on several occasions, and each time suggests that these weapons may be banned without burdening Second Amendment rights.

I’ll be honest, I think that’s a misreading of Heller. The Heller opinion does strongly imply that perhaps bans on M16s might be permissible, but it does not explicitly state it. The Court’s opinion calls the reading of Miller that would rule the NFA’s machine-gun provisions unconstitutional “startling.”

Read in isolation, Miller’s phrase “part of ordi­nary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

I think the Court is correct, except I think the only fair way to determine “common use” is to examine whether the weapon is part of “ordinary police equipment,” the police being the nearest modern analogue to the militia. If the Heller “common use” test were untempered by any analysis of police equipment, the government could evade the “common use” test by banning any new defensive technology before it has a chance to end up being commonly used, as the State of Massachusetts tried to do with electric stun guns (which SCOTUS struck down recently).

So was the NFA truly banning unprotected weapons that have no common defensive use, or was it merely trying to evade Second Amendment protections by preemptively banning it before the people had a chance to speak? To look at that, you have to look at what the police are choosing to arm themselves with, since police carry guns for self-defense, and not to conduct battlefield operations. Are machine guns in common use among police? I don’t know, but the courts should be asking that question before simply categorically declaring machine guns outside of Second Amendment protections.

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