Month: February 2014

It’s well known that the American Bar Association are a left-leaning organization that is institutionally anti-gun. But just how institutionally anti-gun? Well, they are having a symposium in Philadelphia that essentially invites no one who is any kind of expert on the current state of Second Amendment law, despite the fact that we have at least one local expert, and several others that aren’t too far away. The closest they come is Erwin Chemerinsky, who as far as I know has only published one very brief law review article on the subject that really breaks no new ground on the subject. The only other bit of legal writing on the Second Amendment I can find was his Amicus Brief before the Heller Court, which he co-authored with Professor Adam Winkler, in support of the District of Columbia. Their brief argued such things that even if the Second Amendment is an individual right, unlike any other right it may be subject to essentially no higher scrutiny than rational basis review:

Assuming an Individual Right Unrelated to Militia Service, the Text of the Second Amendment and the History of the Right to Bear Arms Support the Application of Reasonableness Review [..] Reasonableness Test Is Consistent with the Text of the Second Amendment, Which Explicitly Acknowledges the Necessity of Government Regulation for Public Safety and Security.

These arguments were rejected, and thus don’t represent the current state of the law. I have no doubt that Prof Chemerinsky is well aware of the current state of Second Amendment law, but let’s not pretend this is anything other than refighting the Heller and McDonald decisions, and commiseration on just how wrong the Supreme Court got it. Meanwhile, next week in Knoxville, there will be a symposium on the Second Amendment that discusses “New Frontiers in the Second Amendment.”

The scary thing in all this? All it would take is one death or retirement out of five for the ABA viewpoint to become law, and for all our gains to end up reversed or minimized into little to no effect. We are essentially walking a dangerous tightrope for the next three years, and that’s assuming we win in 2016, which I’d not bet money on at this point.

The tears of journalists and editors with an axe to grind against the Right to Keep and Bear Arms are sweet indeed, so let us savor.

Delaware Online is concerned for what this could mean for Delaware gun laws, stating that we just can’t have “common sense.” Such hand wringing is unwarranted. In the lower counties CDWLs are effectively will-issue already, and Delaware is also an unlicensed open carry state. That makes the situation different from must other restrictive may-issue states. I’m not sure I’d feel good about challenging Delaware’s law, even if Peruta prevails in the end.

The LA Times is naturally wringing their hands over the ruling, and in the process gets nearly everything wrong.

There are two problems with this conclusion. In 2008, the Supreme Court did rule that the 2nd Amendment protected an individual right to “keep and bear arms” — a decision that upended a long-standing consensus that the amendment was intended only to provide for a “well-regulated militia.”

There was never any such consensus. Research on this topic began in the 1970s, you know, right after the federal government gave people a reason to inquire about the Second Amendment. The consensus of that research was what informed the Heller decision. That consensus only exists in the ignorant minds of the LA Times editorial board, who are not experts on this subject, and don’t even have the barest of educations on it.

Justice Antonin Scalia‘s majority opinion made clear that the case involved only prohibitions on handguns “in the home.”

I don’t think these people even read the Heller decision. I wouldn’t even involve myself in a forum debate with someone this ignorant, to be honest. “Go read the Heller decision in its entirety, and then you might relieve enough ignorance to even have this debate,” is what I would say.

Equally important, Scalia acknowledged that the right to bear arms is “not unlimited.” He specifically noted that “the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the 2nd Amendment or state analogues.

Read the Peruta decision too, while you’re at it. Because the prohibition on concealed weapons still allowed for open carry of firearms, which California law also prohibits. Heller mentioned that as well. Peruta flows from the Heller decision. The editorial board of the LA Times does know how to read, right?

The Brady Campaign seems to be the only gun control group out there to do a formal press release about the Peruta decision, and they essentially say it’s an “aberrant” decision, out of touch with history, and will just allow more people to defend themselves from people beating their heads into the pavement, and isn’t that an awful thing?