How Brady Really Won

Dennis Henigan explains:

LaPierre may also be contemplating the future of the gun debate now that handgun bans are “off the table,” in the words of the Heller majority opinion. How long will the NRA’s leadership be able to argue, with anything approaching a straight face, that the Second Amendment precludes gun regulations like background checks, limits on large-volume sales, safe storage requirements, assault weapon bans, owner licensing, and registration of gun sales, when both Heller and McDonald read like legal briefs for the constitutionality of those laws? And, more importantly, how long will the NRA’s leadership be successful in using its legendary scare tactics to convince gun owners to oppose every gun regulation as a step down the “slippery slope” to a gun ban, when Heller and McDonald have taken gun bans “off the table”?

Wayne’s really scared, you see. The gig’s about to be up. This was a secret plan to win it all on the part of the Bradys all along!  I am the Great Oz! Pay no attention to the man behind the curtain. But how is the Brady Campaign going to keep raising money based on an end product they can no longer deliver? How many people are going to give to close the gun show loophole? How many people even understand it? No, the fight isn’t over. Not by a long shot. I don’t know anyone at NRA who believes that, or is worried about too many people without enough to do. But let’s go down the list anyway:

“like background checks”

No one, to my knowledge has made that argument yet. But what if the system goes down for a few days? For those two days, the Second Amendment is cancelled? I that case it defaults to the Brady waiting period. But is a waiting period unconstitutional? Can you delay exercise of a constitutional right? If so, by how much? The Supreme Court in Casey upheld a waiting period for abortions of twenty-four hours, but rejected a forty-eight hour period.

“limits on large-volume sales”

What other constitutional right can you ration? If you want to buy a gun for your vacation home, and a gun for your regular home, and of course we don’t have carry, because the Bradys tell us a ban on that is constitutional, so you can have your Second Amendment rights at your home, but not your vacation home, unless you wait a month?

“safe storage requirements”

Already largely thrown out in Heller because it substantially burdens self-defense with a firearm.

“assault weapon bans”

Assault weapons are in common use, and used for lawful purposes. They are useful for self-defense, otherwise the police would not use them.

“owner licensing, and registration of gun sales”

The only other fundamental right that’s licensed is marriage. There are some rights you have to register to exercise. This one they might have the strongest case on. But it’s not open and shut, like they make it out to be. There’s ample reasons with other rights why you can’t be required to get a license or register. This is one area that’s probably smarter to fight in the political arena rather than the Courts.

23 thoughts on “How Brady Really Won”

  1. Sebastian … is that a straight face you have on? It would seem that way to me.

    Henigan is such a spinmaster.

  2. “like background checks”

    Or, in the case of the 1st Amendment in today’s modern Media driven 24/7 News cycle, “Are You Now or Have You Ever Been…”
    You have only 24-hours to submit your political affiliation or Victim-Group Membership Status to the Registrar of Voters, which then qualifes you to express an opinion on a Blog, comment in a Newspaper, or vote on an issue. After that you have to wait until the .Gov or Media.Gov generates another narrative-cycle.

    “limits on large-volume sales”

    No Big Books! No Asault Encyclopedias!

    “safe storage requirements”

    Locked bookcase and locked computer with government issued S-CHIP identifying web usage and content observed.

    “assault weapon bans”

    An end to word-processors and xerox machines, but an exemption for Teleprompters.

    “owner licensing, and registration of gun sales”

    Clear enough.

  3. Not to be facetious, but in some states, “common law” marriage, or “informal” marriage, still exists. No license required, generally just something along the lines of (1) agree that you’re married, (2) live together, and (3) hold out to others that you’re married… and presto! You’re on the hook.

  4. And licensing and registration FEES should be unconstitutional, just like a POLL TAX! MA now charges $100 for a 6 year “permission slip” and they BAN the evil black rifle. Hope someone up there files suit shortly.

  5. Quibble: Marriage isn’t a right. That’s like saying health care is a right.

    If it requires the sanction and/or actions of anyone else in order to be implemented, it is not a right.

    Even “common law marriages” aren’t recognized by all states and, depending on the state, even in the state in which they are recognized, there can be a quite rigorous documentation requirement to do so.

    Basically, you have the right to enter into any familial relationship you wish, but you do not have the right to demand that familial relationship be recognized by society as a marriage.

  6. And licensing and registration FEES should be unconstitutional, just like a POLL TAX!


    If you try to claim marriage as a right just like the right to self defense, you are explicitly admitting that licensing and permitting to exercise a right are perfectly acceptable.

    Licensing and permitting of rights is not acceptable under any circumstances. Laws like those in MA should be challenged and overturned.

  7. “The only other fundamental right that’s licensed is marriage.”

    Expanding on Mike’s comment –

    Actually, no marriage requires a license. You can be married in, say, the Roman Catholic religion without a State license: those licenses are actually a contract with the State, in which the State pledges to protect some concerns of married people (eg inheritance) against others. Heck, a Kennedy could fly the Pope to Newport and be married by him, but he could not sign the State license – unless he first established residency in Massachusetts, and then applied for and received a pre-requisite State license authorising him to sign a “marriage” license on behalf of the State.

  8. John A.,

    You’re incorrect about being married in a church without a state license. At least here in PA, it is a crime for the priest, reverend, rabbi, et cetra to perform a ceremony without first receiving the license.

  9. Sailorcurt:

    I was speaking in terms of the Supreme Court. Philosophically, under natural law, you only really have a right to seek marriage as part of your religious freedom, and be free from Government interference in that endeavor. But under Supreme Court jurisprudence marriage is considered a fundamental right, at the minimum with respect to being able to marry someone of any race.

  10. JohnA, residency isn’t required. MA has a special provision for one time marriage officiants.

  11. Quoting from your post:
    “”assault weapon bans” – Assault weapons are in common use, and used for lawful purposes. They are useful for self-defense, otherwise the police would not use them.”

    One small quibble…to use the phrase, “assault weapon” buys into their usage of pejoritive terminology. ANYTHING can be an assault weapon, from a tree branch to a rock, if it’s used to assault someone.

    “Assault rifle” on the other hand, has a specific meaning, defined as a compact rifle of intermediate power, capable of full-auto or semi-auto operation. They are NOT in common use by either citizens or the police, since they’ve been heavily restricted by arbitrary and capricious laws limiting their availability.

    Things that simply LOOK like an assault rifle, but do not actually fulfill the criteria (primarily, not being capable of (or being capable of readily converted to) fully-automatic fire) ARE in common use…but are no different than any other semi-auto firearm, other than typically being a lot less powerfull.

    A Remington 7400 in .30-06 is a lot friendlier looking (as a “DDR”…Daddy’s Deer Rifle) than the PSH-inducing EBR (Evil Black Rifle) in .223/5.56, but the business end is typically a whole lot more powerful.

    Nothing you don’t already acknowledge, just a quibble about buying into their nomenclature.

  12. “assault weapon bans”
    Assault weapons are in common use, and used for lawful purposes. They are useful for self-defense, otherwise the police would not use them.

    I have a quibble w/this myself.
    AR’s are also used very effectively for hunting and target shooting, as you know. I’ll give you a bit of a pass on this one Sebastian since you’re not “allowed” to hunt with AR’s in PA. I would give up deer & antelope hunting if they banned the use of AR’s for hunting here in N.D. But there are so many people up here who hunt with .308 & .223 AR’s that I’m not too concerned about it..

  13. Oh, I don’t disagree… but the Supreme Court seems to actually agree with us that the Second Amendment doesn’t have anything to do with hunting. They’ve stated, twice now, the core of the Second Amendment is self-defense.

  14. I stand corrected. I was unaware of the Loving decision. The phrase “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival” makes it pretty clear that the Supreme Court recognized it as a right.

    The bad thing is, the decision was correct. It’s just that one unfortunate phrase, included seemingly almost as an afterthought, that causes the problem.

    I guess getting rid of licensing and registration schemes for gun ownership isn’t as much of a slam-dunk as I thought it would be.


  15. Voting is a fundamental right that you are required to register for – and some people want to make you show a license to do so… Sorta playing the devil’s advocate, sorta not – I happen to believe that requiring showing ID at the polling station might not be a bad idea; as long as appropriate ID is readily obtainable at nominal (or no) cost.

    It used to be, in many places, you couldn’t get a marriage license without a blood test (though, as of ten years ago when I got mine in NJ, I didn’t have to get one); a very profound intrusion of government into personal privacy. I don’t recall this requirement being struck down on constitutional grounds (as of Roe v Wade and Lawrence v Texas it’d be very dubious).

  16. I disagree on that one too.

    Voting is a right of citizenship. It isn’t a “fundamental right” granted by God, it’s reliant upon the form of government you are a citizen of.

    There is no guarantee of the right to vote for President. The President is elected by Electors which represent the states. The electors are selected by whatever means the state determines.

    If the State determines that the Governor selects the electors, that is perfectly Constitutional and the citizens would have no right to vote for them.

    In fact, in some states there is no law that the Electors must vote for the candidate that the People of that state voted for. The people may have voted for one person, but the Elector can legally vote for another.

    In other words, voting is more a “privilege” of citizenship than a right.

    It is only a right in the sense that, if the opportunity to vote is offered by the unit of government in question, that government cannot discriminate among who is permitted to cast a vote.

    Besides which, Voting doesn’t fit my understanding of the basis of a “fundamental” right. A fundamental right, as granted by God (or by birthright, or natural law, or however you want to put it), requires no action on the part of anyone else to exercise. How can you exercise your right to vote if no one sets up a voting booth, collects the ballots, completes the count and enforces the results?

    Voting is a privilege granted by the government which can be effectively rescinded by the government simply by declining to promulgate any one or more of the above steps.

    But, again, my opinion doesn’t count when it comes to “legally” speaking so there’s probably some (incorrect in my opinion) court ruling declaring voting to be a fundamental right out there somewhere.

  17. Curt is correct. If voting were a fundamental right, they wouldn’t have needed to amend the constitution to allow blacks and women the right to vote. It’s only modern case law that makes it a right. Under natural law theory, it isn’t.

  18. I’m going to argue that determination of the direction of government *is* a natural right; the one that justified the Declaration of Independence and the “doomsday provision” aspect of the 2A, as well as parts of the 1st.

    Ballot box, jury box, soap box, ammo box. The right to participate in of all of those are “natural” rights. (Jury box is an interesting case, too. My right to *be* in a jury and pass judgment on the law under which you are being prosecuted is a natural right, your right to have me, as an individual, sit on a jury to decide on your guilt is a little more nuanced).

    Natural rights do not flow from the Constitution – and as enacted the Constitution contained several clauses that are antithetical to natural liberties. The fact that the Constitution had to be amended to require the states to allow blacks and women to vote is an indication of the (interpretation of) Constitution’s flaws, not of the “unnaturalness” of the right to vote.

    So, yeah, in that the natural right to self-determination necessarily includes the right to have input into the guidance of the nation, there is a natural right to vote for all citizens of the nation. And as with most other natural rights, this one can be limited on certain grounds, such as age of majority, punishment of the uncivilized, etc. In a republican form of government, the input of the citizens is provided via voting for our representatives. Preventing access to the ballot box and jury box, but allowing access to the soap box and bullet box doesn’t make a whole lot of sense.

  19. That’s an interesting take on what constitutes “natural” rights.

    The list of “boxes” isn’t actually a list of natural rights, but a list of methods available to redress grievances.

    The thing is, the first two “boxes” you mention specifically requires support and cooperation from the government, while the last two do not.

    This is what makes the last two stand apart and defines them as natural rights.

    “The People” only have access to the ballot box or jury box if the government affords us that access. The soap box and bullet box may result in a violent, oppressive and even deadly response from the tyrannical government, but there is no way for them to effectively prevent us from employing them short of just throwing everyone in prison from the get-go.

    The use of the “four boxes” serves as a warning, not a statement of rights. If the government chooses to take the first two methods of redress off the table, the people always have the option of employing the ones that no government can ever completely prevent…the ones that are natural rights not dependent upon the cooperation of the government for their existence.

  20. How about: freedom to vote voting (both on the ballot and in the jury chamber) is an example of speech? I’m not changing my argument, per se here, but I’m trying to change angles. Voting is a particular expression of freedom of speech – in that I am expressing my particular opinion on a particular subject, in a particular method.

    I think the right to vote is possibly more analogous to the right to a firearm rather than directly analogous to the right to a firearm, in that voting is the (current) most effective means of providing input into governance, just as a firearm is the (current) most effective method of self-defense. So the right to vote derives from the (natural) right to live under a government that operates with the consent of the governed, just as the right to keep and bear arms derives from the (natural) right of self-defense. Both self-defense and consent of the governed would appear to be negative rights as I understand it(exercise of these rights does not prevent another from exercising the same, nor force anyone to provide a good or service).

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