Paul Helmke thinks everything is going to stand post McDonald. I think that’s a tad optimistic, and I suspect he thinks so too, if he’s honest with himself. But I guess they have to look in the bright side at Brady these days:
A Virginia Tech student files suit against the university’s policy prohibiting concealed weapons on campus. Will theÂ McDonald decision have an impact?Â We believe the answer is “no,” because as a school, a college campus is one of those “sensitive places” that Justice Scalia cited as being allowed to enact gun prohibitions.
Is it? Why is a college or university more sensitive than say, a boardwalk, or other place where young people congregate. These are adults, not children. This isn’t to say private colleges and universities can’t ban guns on their campuses, but can public institutions do so? Maybe that’s the case, but you can’t just declare any place where someone having a gun gives you the willies as “sensitive.” That’s not a legal standard.
A farmer in Kern County, California files suit against California for prohibiting him from purchasing an AR-15 rifle with a folding stock and scope, which he wants to have for coyote control on his land. How doesÂ McDonald relate to this case?
Semi-automatic rifles are in common use, as there are tens of millions of them owned by civilians, and the AR-15 is one of the most popular firearms. California’s ban is an outlier, and far broader than other prohibitions. Perhaps the Kern County farmer has arthritic hands, and has difficulty handling a firearm with a traditional stock. Perhaps he wants a folding stock for compact storage in his vehicle. Outlier case? Well, maybe so, but there are implications for it being an individual right.
Justice Scalia also noted that laws protecting Americans from “dangerous and unusual weapons” are “presumptively lawful.” An AR-15 is a military-style assault weapon, which elected officials in California have decided is so “dangerous” that they have banned it.
Except that it’s not dangerous or unusual, at least not any more than other semi-automatic rifles. See, you Brady folks could rely on deception and obfuscation before — tricking people into thinking semi-automatics were machine guns. It might be harder tricking the Courts, where truthfulness is generally required.
John Hinckley, Jr., who was found not guilty by reason of insanity in the shootings of President Ronald Reagan and Jim Brady, has been approved for extended visits to family away from a D.C. institution for the mentally ill. If he files suit against the federal government for rescinding his gun rights, doesÂ McDonald give him a legitimate case?
No. I don’t think anyone is even arguing that. But we’ll burn this straw man regardless.
Brian Borgelt, the former owner of Bull’s Eye Shooter Supply in Tacoma, Washington, which “lost” the gun used by the snipers who murdered 10 and shot three others in the Washington, D.C. area in 2002, files suit against the Bureau of Alcohol, Tobacco, Firearms and Explosives for rescinding his federal firearm dealer license. Does theÂ McDonald decision provide support for Borgelt’s case?
I don’t think anyone seriously expects the Courts to substantially interfere with the commercial regulation of the firearms business. Heller pretty much accepted broad authority for commercial regulation.
None of this is to say I’m all that optimistic about the Courts tossing California’s assault weapons ban, or removing the ability of colleges and universities to ban firearms. The Brady folks are bound to have victories, and we’re bound to have setbacks. But these issues are not as cut and dry as they would like people to imagine. Clearly they won’t save their whole agenda.
But where I think this will end up long term is it will be accepted that the Second Amendment right does not extend to certain kinds of criminals, and that Government has a legitimate interest in keeping firearms out of the hands of this prohibited class of people, and to that end, the Government may regulate firearms to that extent, provided it does not substantially interfere with the right protected. That’s going to mean we get a few things ruled constitutional that we would really prefer tossed, but it’s also going to mean whatever barriers are put in place can’t, in any meaningful way, interfere with the right. At that point, why bother? The Bradys might want to bother, but will anyone else? Can you raise money and build grassroots support around regulating private sales at gun shows? Not when that’s one step along the way, but when that’s all the Courts will let you push?
10 thoughts on “Paul Helmke Grasping Desperately”
Like the 4 McDonald dissenters, Helmke cannot accept the right, and will try to keep rearguing Heller over and over.
What will he be left with once AW bans are overturned, shall-issue is the rule of the land and complicated licencing vanishes? A few attempts at bypassing justice through the terrorist watch list?
Two years, and the landscape for the Bradys should be quite bleak.
I don’t know about public colleges or about folding stocks. Public colleges aren’t always subject to pre-emption. Regardless, they can still impose alternative sanctions (“academic discipline”) on those with guns if they choose. I personally still think it’s wrong, but there are several hurdles to be cleared first.
As for folding stocks, I suspect that so long as barrel length limits are upheld then so will be bans on folding or collapsible stocks. People can argue about those things, but I don’t think the courts are really in a mood to do away with those limits (at least, absent a showing of medical necessity). Maybe in 20 years, but not right now. We’d do better to focus on suppressors.
I actually don’t think that barrel-length restrictions or bans on folding or adjustable stocks will stand. A short-barreled carbine or shotgun w/ a folding stock makes an excellent home-defense weapon, possibly as good or better than a handgun. A handgun makes a-more-concealable option for carry. Historically the barrel length restrictions were due to people sawing off for concealment, but what’s the difference between a Taurus Judge & a sawed-off .410?
Once more, with feeling: Scalia and Alito noted in dicta that current regulations on everything from concealed carry in sensitive places to gun types allowed for purchase in a state are NOT repealed by Heller and McDonald. They did not state that these regulations were constitutional, that these regulations could not be challenged, or that these regulations made any more sense than ice skates on a peccary in the Arizona desert.
The justices noted that the regulations were not overturned. They did so simply because the question of the constitutionality of these regulations was not an issue before the court. Neither was the time of sunset on July 13, 2011. The court did not strike down sunset today either, and for the same reason: they were not considering the question.
Don’t let this idea of “Heller and McDonald certified all current regulations as OK” to gain any traction. It is an insidious effort by the losers in Heller and McDonald to negate the profound implications of these two court rulings.
“Justice Scalia also noted that laws protecting Americans from â€œdangerous and unusual weaponsâ€ are â€œpresumptively lawful.â€ An AR-15 is a military-style assault weapon, which elected officials in California have decided is so â€œdangerousâ€ that they have banned it.”
People keep overlooking the footnote in Heller which basically said that M16s could not be banned because if they could that would sever the prefatory clause from the 2nd Amendment, which would be absurd and prove the supporting premise invalid. Considering old M16s are legal, they must not be too “dangerous”. Perhaps we will see 922(o) overturned someday.
@Ian: the difference is that the Judge has a rifled bore. That’s about it.
Anyways, I’m quite tired with the Bull’s Eye garbage. The new management has vastly improved the store and I am proud to spend my money there!
@Kevin: Exactly. For that matter, what’s the difference between a sawed-off lever gun in .45 long colt and a wheelgun chambered in same? The AR pistols that are floating around and an M4gery? Etc, etc…
The SBS/SBR and (most) AoW restrictions fall at almost any level of scrutiny.
Not to mention that it must be infuriating to Paul Helmke that it is legal in one manner or another to walk down the streets of 44 states (I think…) with an “AK47” so long as it was built with a short barrel and no stock.
Wasn’t that what the NFA was “supposed” to prevent?!
The NFA must be amended. Remove lines 1 through 5 along with line 7 of section “A” (firearms) from the definitions. As well as removing section “E” (Any other weapon) entirely.
I *think* we could get rid of .50 being the line for destructive device; considering that a 12-gauge is larger in bore than .50 – I’m pretty sure you could monkey around iwth the definition of shotgun.
Which would really make Paul Helmke a sad panda (though I suppose .577 Tyrannousaur does that already – doesn’t that have a “sporting purpose” exemption?)
I agree that the .50 cal limit should go, but they already want to ban .50s to begin with, so I think it would be wise to leave it alone for now and focus on the biggest problem; the illogical restriction of stable pistols and handy carbines.
Comments are closed.