November 2010 – Page 4 – Shall Not Be Questioned

More on the New Jersey Suit

Commenter Patrick noticed that this lawsuit against the State of New Jersey is a facial challenge, rather than an as applied challenge. Meaning the argument is that the law is wrong in all circumstances. Read his entire analysis. One thing I’d add, though cautiously, because I’m not sure about this, is if sections of New Jersey’s carry laws are Â found facially unconstitutional, the law is essentially treated like it never existed:

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.

Since the facial challenge only applies to a few sections of New Jersey’s carry laws (which you could get slapped with if you stop by a Starbucks drive through for some coffee on the way to a match), I don’t think it will affect people who have been convicted for carrying without a license in New Jersey, nor make it suddenly lawful to carry a firearm in the Garden State. But New Jersey law does provide for issuance to non-residents, and you can bet I’ll be the first in line to apply if that ends up being the case. What I don’t know if whether someone could then challenge his conviction as-applied if the current permitting statutes are found unconstitutional.

High Speed Rail

I’ve never understood the left’s fascination with high speed rail. Maybe it’s because it makes them feel unenlightened that Europe so heavily invested in it, while the US ignored it. Maybe it’s because they hate the automobile that much. But whatever the reason, Megan McArdle, who has been in China on a business trip, shows why the US isn’t going to have China’s high speed rail system. Today she points out that the efforts to make high speed rail a reality in the US could have a detrimental effect on freight rail, which is truly green.

I am not against high speed rail per-se. It makes sense where cities are packed tightly together, like the Northeast Corridor Washington to Boston route. But for passenger travel to distant cities, planes are probably going to more economically efficient, and likely more energy efficient as well (depending on how fast the trains go, how full you can keep them, and the types of grades they have to traverse). Speed is costly in terms of energy. It doesn’t take a trivial amount of power to keep something as large as a train running 200 MPH at sea level or close to sea level, and even at that speed, it’ll still take close to 14 hours to get from New York to Los Angeles. That’s more than twice as long as a typical flight to Los Angeles. Even New York to Dallas would be a whopping 8 hours.

More Bad Polling New for Brady Folks

From Gallup:

For the second year in a row, a record-low 44% of Americans say laws governing the sale of firearms should be made more strict, while 42% say gun laws should be kept as they are now. Twelve percent say gun laws should be made less strict.

Let’s hope for more record lows to come for those supporting stricter gun laws.

NRA Influence on Voters

Dave Hardy links to a new poll that shows NRA’s impact in the elections this cycle. Overall, this looks really good. A total of 44% of voters polled claim they listen to what the NRA has to say in an election all, most or some of the time. Among independents this number is 42% on those polls.

â€œThese numbers show that the tea party and the NRA were the two major voices that influenced voter opinion in the midterm elections,â€ said Brad Oâ€™Leary, publisher of The Oâ€™Leary Report.

I suspect NRA’s numbers may even be better in a year where they aren’t endorsing a lot of Dems who voted for Health Care and other measures unpopular with the Tea Party movement. But this is an overwhelming amount of influence. And the Brady’s wonder why politicians don’t want to cross us?

Pretty Outrageous

From Students for Concealed Carry on Campus:

Dr. Bill Holda, president of Kilgore College in Kilgore, TX, will have to do some fast backpedaling if heâ€™s to have any hope of outrunning his recent comments about the 1991 massacre at a Lubyâ€™s Cafeteria in Killeen, TXâ€”the second deadliest mass shooting in U.S. history, surpassed only by the 2007 Virginia Tech massacre.Â Dr. Holda recently angered both survivors of the shooting and concealed carry advocates by claiming that some of the victims of the massacre (which became a rallying cry for supporters of lawful self-defense) actually shot each other.

It’s not even close to true. This was before Texas passed right-to-carry. The only one shooting anyone that day was the killer. This statement was made in response to a bill introduced in Texas that would repeal the current prohibition of carrying on college campuses.

Federal Complaint Against New Jersey

Can be found here. The lawsuit is being filed by the Association of New Jersey Rifle and Pistol Clubs, which is NRA’s State Association for New Jersey, and by the Second Amendment Foundation. This is not an Alan Gura case, though I’m told Gura will be advising in this case, and that SAF is providing the funding for it. The federal complaint is for “Deprivation of Civil Rights under Color of Law,” under 42 U.S.C. Section 1983.

Plaintiff selection in this case appears to be quite good. The first plaintiff, Mr. Muller, was attacked and kidnapped and beaten after the Hell’s Angel’s mistook him for someone else. Fortunately he escaped, but his kidnappers still have yet to stand trial. Mr. Piszczatoski is a civilian employee for the FBI, and a former Coast Guardsman. The FBI informed him of islamic extremist threats against families and employees of the FBI, which caused him to desire a carry permit. A third plaintiff, Mr. Drake, carries large sums of cash in connection with his business. One of the plaintiffs is also a part-time deputy sheriff in Essex County, which aren’t authorized by the State of New Jersey to carry a handgun off duty. All plaintiffs have applied for and been denied a license to carry. They should easily pass standing requirements.

Some of the assertions of this case in terms of constitutionality:

The States retain the ability to regulate the manner of carrying handguns within constitutional parameters; to prohibit the carrying of handguns in specific, narrowly defined sensitive places; to prohibit the carrying of arms that are not within the scope of Second Amendment protection; and, to disqualify specific, particularly dangerous individuals from carrying handguns.

The States may not completely ban the carrying of handguns for self defense, deny individuals the right to carry handguns in non-sensitive places, deprive individuals of the right to carry handguns in an arbitrary and capricious manner, or impose regulations on the right to carry handguns that are inconsistent with the Second Amendment.

That seems to me where we should go with this. We have to accept, because of dicta in Heller about concealed weapons, that the states have the power to regulate how arms may be carried or worn, they just may not prohibit the carrying of defensive arms altogether, or restrict carrying them arbitrarily and unjustly. It’s a very short complaint, so it won’t take long to read, if you’re so inclined.

I would like to take some time to ask readers to join ANJRPC. You don’t have to live in New Jersey to join. Or if you would rather, donate to their litigation fund. Their e-commerce software sucks, and I apologize for that ahead of time. But it’s a worthy cause. Also, donations to SAF would be in order as well, since they are funding the case.

UPDATE: I was informed that my assumption the case was jointly funded was incorrect, and it is being funded by SAF and have adjusted the article accordingly. That was my mistake.

UPDATE: OK, got it wrong again. SAF is funding counsel of record, which is most of the cost of the suit. ANJRPC is funding additional elective resources, so the suit is not without cost to ANJRPC.

ANJRPC/SAF File Civil Rights Suit Against New Jersey

For a while now, many have wondered when New Jersey was going to get sued for their gun laws. The answer to that question would appear to be right now:

TRENTON, N.J.,Â Nov. 22, 2010Â /PRNewswire-USNewswire/ — The Association of New Jersey Rifle & Pistol Clubs (ANJRPC) announced today that it has joined in a federal lawsuit challenging a provision ofÂ New JerseyÂ law that effectively denies law-abiding citizens the civil right to defend themselves with a firearm outside the home.

The suit, brought together with The Second Amendment Foundation and six private citizens, challenges the constitutionality of New Jersey’s extreme and subjective “justifiable need” standard for issuance of handgun carry permits â€“ a nearly impossible standard to meet that has all but eliminated the right of self defense with a firearm in the Garden State.

“The fundamental right to defend yourself does not evaporate when you walk out your front door,” said ANJRPC PresidentÂ Scott Bach. “The U.S. Supreme Court has recently made it clear that this right belongs to all Americans. Â This lawsuit will ensure thatNew JerseyÂ finally stops denying its citizens this basic freedom.”

40 states currently have laws recognizing the right of law-abiding citizens to carry a handgun for self defense, 28 of which have been enacted in just the last two decades. Despite the mountain of evidence showing that sustained reductions in violent crime rates result after enactment of these laws,(1)Â New JerseyÂ has refused to modernize its own laws, instead choosing to imperil its citizens and force them to remain defenseless victims against armed criminals who don’t follow the law.

“It’s no mystery why violent crime rates plummet wherever right to carry laws are enacted,” said Bach. Â “Criminals go somewhere else when they think their victims might be armed. Â When predators can’t tell the difference between the sheep and the wolves, the whole flock is safer.”

One of the plaintiffs in the new lawsuit is a kidnap victim, another is a part-time sheriff’s deputy, a third carries large amounts of cash in his private business and another is a civilian employee of a law enforcement agency. Â The fact that such persons are unable to qualify for aÂ New JerseyÂ carry permit underscores how arbitrary and unreasonable the Garden State’s laws are. Â “New Jersey’s carry laws are blatantly unconstitutional,” said Bach. Â “We intend to change that.”

I will have more information on this suit as it becomes available.

UPDATE: I’ve linked to the federal complaint here.

That’s Kind of the Point

Eugene Volokh linked to this criticism of National Opt-Out Day:

The day before Thanksgiving is the busiest airport day of the year.Â The airport is full of families, many of whom are not frequent fliers, going home to see Grandma for the holidays.Â People who fly long distances between non-hub airports generally have to make connections.Â When you have a connection, a delay is not just a delay.Â It may mean not making it to your destination at all.Â Most families planning to travel tomorrow have nonrefundable tickets.Â Canceling is not an option.

I am sympathetic to the overall argument, but I would point Kent Scheidegger and Professor Volokh to Ilya Somin’s excellent body of work on the problem of political ignorance. That Opt-Out day is going to cause disruption to people who may only interact with TSA once a year is entirely the point. The point is to make them understand what their government is doing, instead of just quietly passing through security, blissfully unaware that a government agent in a remote room is looking at naked pictures of their children. They will see out in the open and clear as day what the government we voted for is doing, and what the consequences of it are.

So yes, it sucks that this is going to be a serious problem for some people. But we didn’t create this system. TSA did. And I don’t see that any American has any obligation to play along with their game for the sake of efficiency or expediency. To cause any social change you have to raise awareness first. That’s the first rule of activism. In this sense, National Opt-Out Day is a good idea.

I find it difficult to accept that there are people who value freedom out there suggesting that everyone should submit to a virtual strip search for the sake of everyone else’s convenience. The choice is now between that and groping. There’s no longer an option to just go through under the old procedures. It seems we have to endure quite a lot of hardship for the sake of freedom. Many have died for it. Missing grandma’s mashed potatoes seems a small price to pay in comparison.

More Debate on Gun Free Zones

From our favorite Brady Board Member:

If you spent any time with Colin Goddard and heard him describe the scene at VT, you would know that his having a gun would not have made a difference. In fact, he has said that if he had had a gun that day, he probably would have been shot to death by Cho.

This is the scene as described by Colin Goddard at the time of the Virginia Tech mass shooting:

Goddard’s ordeal began during French class, when he and fellow students first heard gunfire coming from a hallway, his mother said.

Professor Jocelyne Couture-Nowak told her students to dial 911, just seconds before Cho entered the room and sprayed bullets, wounding Colin in the leg. Cho “went first through one row of desks and started shooting just randomly,” Ann Goddard said.

Cho then left the classroom, she said, and returned minutes later.

Colin lay on the classroom floor, playing dead. He “turned his head and actually saw the shooter’s shoes come right up next to his body,” Ann Goddard said. “The shooter was standing right next to him.”

Her son was “absolutely scared to death,” she said. “He kept his wits about him, but he was scared to death.”

If you had time to hear the gunshots, you had the time to draw a gun had you had one. Probably even time to find or create reasonable cover. A reasonably trained shooter can go from leather to well placed shot in under 2 seconds. You had the advantage of knowing where the shooter was going to appear from and that he was coming. It’s certainly not a guarantee you won’t get shot. Gunfights aren’t exactly safe, even if your opponent is a lousy shot. The key to winning a gun fight is to be mentally prepared to win, and to keep landing well placed shots on your attacker until he’s down. I’d be curious to know what Colin thinks the fundamental tactical difficulty would have been in taking Cho down had he had a firearm that day, other than his emotional state, which can’t be discounted.

Goddard was frightened into inaction, by his own account. I don’t mean that as any kind of admonition; the same thing happens even to trained soldiers and police officers. No one can predict what their reaction is going to be when bullets start flying, and I won’t blame anyone for being petrified by fear in a situation like that. Since I’ve never been in a situation where someone is shooting at me, I have no idea whether I’d react any better.Â Dan McKown certainly wasn’t exempt in a similar situation, even though he was carrying a firearm.

But just because being frozen by fear was one person’s reaction doesn’t mean it will be everyone’s. Many of the young adults involved in the campus carry movement are people who are not unfamiliar with being shot at, since a lot of them are veterans completing their education after serving our country in Afghanistan and Iraq. I’m skeptical that enough college students are going to carry firearms to make any significant difference in a potential mass shooting situation, but the odds at least won’t be zero. I don’t see any reason why someone who is licensed to carry everywhere else shouldn’t be able to carry onto campus. In short, I just don’t see any reason not to allow it.

The Man Who Coined the Term “Security Theater” …

… comments on TSA new screening procedures.