Civil Rights Progress

The 7th Circuit has been surprisingly good when it comes to Second Amendment issues, so it’s not a huge surprise that Ezell II has scored a victory. If you recall, Chicago tried to zone gun ranges out of the city. That was struck down in Ezell I. So the city basically rewrote the law so that gun ranges aren’t technically banned, but they are subject to a patchwork of regulation that amounts to a de facto ban. They also prohibited minors from using legal gun ranges in the city.

Basically, in Chicago you couldn’t teach your kids to shoot, which wasn’t an issue anyway, since there were no ranges in the city by design. The city’s new laws, designed to evade Ezell I, is now struck down in Ezell II. The opinion being delivered by Judge Diane Sykes. Judge Sykes is on Trump’s list of judges he told us he’s considering for nominations to the Supreme Court.

We affirm in part and reverse in part. The two zoning regulations—the manufacturing-district classification and the distancing rule—dramatically limit the ability to site a shooting range within city limits. Under the combined effect of these two regulations, only 2.2% of the city’s total acreage is even theoretically available, and the commercial viability of any of these parcels is questionable—so much so that no shooting range yet exists. This severely limits Chicagoans’ Second Amendment right to maintain proficiency in firearm use via target practice at a range. To justify these barriers, the City raised only speculative claims of harm to public health and safety. That’s not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights.

The age restriction also flunks heightened scrutiny. We held in Ezell I that the Second Amendment protects the right to learn and practice firearm use in the controlled setting of a shooting range. The City insists that no person under age 18 enjoys this right. That’s an extraordinarily broad claim, and the City failed to back it up. Nor did the City adequately justify barring anyone under 18 from entering a range. To the contrary, its own witness on this subject agreed that the age restriction is overbroad because teenagers can safely be taught to shoot and youth firearm instruction is both pruent and can be conducted in a safe manner.

What really pleases me is that the judges took note that the zoning rules allowed law enforcement ranges on any commercial property, and the city notes those ranges operated safely. They looked at that and balked at how that argument wouldn’t apply somehow to civilian shooting ranges. In a small way, they looked at police exemptions and called bullshit on it. This is what I think courts should do. If they are exempting the cops, something is fishy.

And if more were needed, the City concedes (as it must) that law-enforcement and private-security ranges operate in commercial districts throughout Chicago near schools, churches, parks, and stores; the City acknowledges that they operate quite safely in these locations. Common sense suggests that law-enforcement ranges probably do not attract many thieves, but the City’s theft-protection rationale for these zoning rules is so woefully unsupported that the distinction between law-enforcement and commercial ranges doesn’t carry much weight. The City doesn’t even try to argue that commercial ranges create greater fire or environ- mental risks than law-enforcement ranges.

The whole opinion is pretty decent. Scalia was passionate about the issue because he was a shooter. I’d like to see a shooter replace him. I don’t know if Judge Sykes is a shooter or not, but from what I’ve seen from her, I’d definitely find her to be an acceptable court pick by Trump.

Common Arguments Against National Reciprocity

I’ve been watching the debate unfold, and wanted to address some common arguments I see from people on our side. I’ll address them one-by-one:

The constitution is the only carry permit I need! It should be, but that is not the current reality we live with. We’re now double digits on the number of states that don’t require a permit, and hopefully that will continue to spread. I actually think H.B. 38 deserves kudos for recognizing the Vermont situation, and codifying nationwide Constitutional Carry for citizens whose states don’t require permits. I don’t know if that will survive the final vote, but it’s worth reaching for.

Most Americans are living under some kind of permitting regime, with about 1/3rd of our fellow citizens still living in may-issue states. None of these states will go shall-issue, let alone Constitutional Carry on their own. The only way you’ll ever carry in New York City, for instance, is if the federal courts or Congress force them to allow it, and they might not get into the finer points of reciprocity. There aren’t enough votes in Congress for just preempting permitting altogether, and if you think we have City of Bourne v. Flores problems with National Reciprocity now, wait until Congress tries to do something more appropriate for the Courts to do, like striking down state permitting laws.

This will be the federal camel’s nose under the tent! The federal nose got under the tent in 1934. In 1938, we let it under a little more. Then in 1968 we got half the camel under the tent. Then in 1994, three quarters camel. My point is, the Congress knows how to pass gun control laws. They’ve been doing it a long time. I’m not of the opinion that we shouldn’t move the ball forward because a future hostile Congress might pass gun control. That can happen regardless of whether we pass National Reciprocity. The question is this: do you want a future hostile Congress to have to start from farther away from your rights or closer? Would you like Bloomberg focused on repealing gains we can make now, or focused on gains we made last decade, like getting rid of gun bans and passing FOPA? I know I’d prefer fighting him back to today rather than fighting him back to what I already won last decade. That’s the choice.

Let me address the Brady Act analogy here, because I think it’s worthwhile. We made a number of concessions in the Brady Act that weakened our arguing position. We ended up arguing that instant background checks were great in order to stave off waiting periods. Well, if instant background checks are great for retail sales, why aren’t they great for every sale? You see where the other side can go with this. Well, since every sale gets phoned in to the FBI or State Police along with the buyer information, why can’t we just keep that? Just a little record keeping, you know. Nothing to worry about!

The compromises that went into the Brady Act inherently weakened our position for future fights. Where does National Reciprocity weaken our arguing position? That there should be no federal gun laws? I’m sympathetic, but if the Second Amendment is a recognized fundamental right, I want the federal government to be empowered to protect it against state encroachment, just like it does with other fundamental rights. Are we to believe that a hostile Congress has never thought of using its power to screw us until we came along and decided to use it to help? Congress liberally used its power to our detriment for most of the last century! Believe me, whatever your fears about what a Congress will do to state permit systems the anti-gun legislators have already thought about, and they’ll do that to us if they have the votes even if we never pass National Reciprocity.

Let me take one common fear: a future hostile Congress will mandate state standards for issuance, like they’ve done with Real ID. OK. I’ll buy that. Say a future hostile Congress decides that only states that require 8 hours or more of training and a live fire test qualify for national recognition. I would certainly oppose that. But are we still ahead of where we are now? Yes. Did the future  hostile Congress just blow political capitol pissing off 10 million people who have permits in this country just getting halfway back to where they were? Yes. Would you rather them chip away at gains we made a decade ago instead? Right now their goal is extending the Brady Ac, repealing FOPA, and as a stretch goal banning “assault weapons.” If we pass National Reciprocity, that’s going to become their target. That’s a good thing.

It’s a useless bill. My guns are illegal in the hostile states!  H.B. 38, and most of the other proposed National Reciprocity laws that have been proposed have attempted to preempt local gun bans. If you look at the language of H.B. 38, it allows anyone to carry a handgun (other than a machinegun or destructive device). It makes clear that magazines and ammunition are included. Now, I actually think H.B. 38 needs to be made more clear that Congress is intending to preempt state law in this matter. It should make clear that any handgun legal under federal law is covered, regardless of state laws on magazine capacity or ammunition type. But there is an attempt to ensure you can carry everywhere with the guns you own.

New Jersey will just change its laws to eliminate the permits. So will other states! That might be so. But I’d still argue we’re way ahead. Will states that issue but have bad reciprocity arrangements, like Minnesota, Nevada and Oregon, repeal their laws? Probably not. Will New York City, which hands out carry permits as patronage, repeal theirs? Maybe. But maybe not. Don’t underestimate how powerful patronage is. We don’t know what will happen. Also, what happens if a future Supreme Court rules that outright prohibitions on carry are unconstitutional? This puts a lot of the hostile states in an outright bind. It’s worth doing. Also, don’t underestimate our ability to make improvements to the law after they pass it and the sky doesn’t fall. Perhaps repealing concealed carry won’t get New Jersey out of recognition forever.

The Constitutional Authority for National Reciprocity

I’ve run into a few threads over the weekend discussing National Reciprocity, and the power Congress is relying on to pass it. There seem to be a number of misconceptions.

First, Congress is not required to state what power its authority to pass a bill falls under, and so often bills do not discuss that. The argument for whether a bill falls outside of Congress’ enumerated powers is an argument for the courtroom. Previous National Reciprocity Bills have had statements speaking to Congress’ power to pass it, but this latest bill, H.B. 38, does not. It is probably best that the bill does not discuss that. National Reciprocity relies on three powers of, with some arguably weaker than others. I will discuss them from the strongest to the weakest (in my opinion, reasonable people can differ):

Commerce Clause: Much of our federal gun control law rests on Congress’ power to regulate interstate commerce. That’s why in much of federal gun control law you see “in or affecting interstate or foreign commerce, ” and why you’ll also find that type of language in H.B. 38. Granted, I strongly believe the Courts have interpreted this power way too broadly, but if we can prosecute felons for possessing firearms because that firearm was once transported in Interstate or Foreign Commerce, it would be interesting to see the Courts’ reasoning on why it can’t apply to firearms carried by civilians. That’s why I believe this is probably the strongest argument for the bill, even if I don’t personally like it. The apple cart that would be upset by the Courts rejecting what is sometimes called the “Herpes Theory” of the Commerce Clause is big and consequential enough I don’t think the federal courts would want to risk it.

14th Amendment: A lot of people have argued that the 2nd Amendment trumps the 10th Amendment. This is true, but only because the 14th Amendment made it so. The 14th Amendment prevents states from interfering with the civil rights of Americans, and also gives Congress the power to enforce that amendment via legislation. This is the power I’d like to be the most solid, but we have a big complication with City of Bourne v. Flores, which argued Congress could not extend the meaning of a right beyond what the Courts have recognized. I would argue Heller and McDonald both acknowledged a right to carry defensive arms, so in this case, Congress is not overstepping its bounds. Additionally, there is a Right to Travel under the 14th Amendment that is recognized by the Courts, and which provides us with additional structure in this area. Finally, National Reciprocity is something more suitable for Congress’ powers than the courts. The courts can strike down laws, but the creation of a reciprocity regime is something only Congress can do appropriately.

Full Faith and Credit: A lot of people mistakenly believe driver’s licenses are recognized in every state because of this clause. That is not the case. Driver’s licenses are recognized in every state via an interstate compact, or by direct state recognition. It is purely a function of state law. What the Full Faith and Credit Clause means is not terribly well defined, and I believe we’d have trouble with the “public policy” exception the Supreme Court laid out in Pacific Employers Insurance v. Industrial Accident. I think this is the weakest power of the three, but Congress has never done anything quite like National Reciprocity, so it’s still there.

If you want to read a more in-depth analysis of what I’ve discussed here, I’d recommend Clayton Cramer’s new paper: “Congressional Authority to Pass Concealed Carry Reciprocity Legislation” Please keep these arguments in mind when you run into people spouting “states rights” arguments against National Reciprocity. You’ll find a lot of conservatives doing this if you look. Congress has had the power and used the power to protect the civil rights of Americans since the end of the Civil War. It should not be shy about using those powers to protect the Right to Keep and Bear Arms any more than it other civil rights which have been long protected under federal law.

Weekly Gun News – Edition 53

Welcome to the 53rd edition of Weekly Gun News, also known as “My browser is drowning under the weight of dozens and dozens of open tabs.” Maybe some of them will make it here, but I usually end up only posting maybe a third of what I have open. Some news seems interesting at first, but then it gets more “meh” as you take a second look. But here goes:

Headline Fail: “With 2016 over, a toddler has now shot a person every week in the US for two straight years.” Someone should probably apprehend the Diapered Killer before he kills again!

Lori Haas of Coalition to Stop Gun Violence is a sad panda. Though, the massive increase in the federal government under Obama has blued Virginia, perhaps irrevocably.

Lower Merion Township, PA will appeal ruling, which nixed their ordinance banning guns in municipal parks, to the PA Supreme Court. The township argued it had a right to control its own property, Superior Court ruled that preemption still applied. Under the existing preemption statutes, local governments have typically lost, but it’s hard to get to court because of standing requirements.

Czech President Milos Zeman encourages Czech citizens to arm themselves.

The feds are appealing the Binderup ruling to the Supreme Court. The Third Circuit ruling in Binderup essentially said that gun rights could only be stripped away for serious crimes, and a misdemeanor with no element about unlawful use of force does not rise to that level. I had lost track of the case since District Court, but it won all the way up to Third Circuit en-banc. UPDATE: Oops, no they aren’t appealing. This is what happens when I let posts sit in the queue for days.

Makes you wonder how often this kind of thing is going to happen.

Debunking the arguments against Constitutional Carry. With patrol cars now being networked, cops can tell if someone is prohibited or not. Even at a practical level, permits are antiquated.

Shannon Watts lands an article in Teen Vogue. Do teens even still read magazines?

A War Without Rifles.

Are Gunsmiths Screwed?

Massad Ayoob: The Coolest Shooting Match Ever is Back!

Off Topic:

Reason: “If You’re Freaking Out Over Donald Trump’s Presidential Powers, Thank a Liberal!” Both Bush and Obama greatly expanded executive power. Do you see Trump trying to undo that? I don’t. Thanks guys.

I’m starting to think this might be a good idea: “The failed F-35 fighter-jet program can’t be fixed — it’s time to turn the page.

Tam: “A God-bothering SoCon drug warrior career politician for GOP AG? Wow. That’s so maverick. I can feel the swamp draining.” I know NRA has been pulling for him, and certainly Sessions will help us there, but the drug war is yet another issue that alienates the GOP from younger generations.

More Media Wagon Circling Over the Hearing Protection Act

This time the LA Times is getting in the game:

Stiff federal regulations on silencers date back to 1934, when they were enacted as part of a crackdown on machine guns and other instruments of mobster violence.

Actually, silencers were included in NFA because of concerns over poaching during the Great Depression. I think it’s hilarious that the LA Times writer cited the Michael Rosenwald’s WaPo article we talked about the other day, because Rosenwald’s article actually said as much. It’s almost as if no one who comments on Rosenwald’s article actually read it! Was the concern over poaching legitimate? I don’t think so. I’d argue politicians back then were just as ignorant as they are now, and Maxim had only started selling them three decades prior.

Manufacturers say it’s illogical to raise a higher bars to silencer purchases than gun purchases, but this is a double-edged sword. They may be right, but that’s an argument for making guns as hard to buy as silencers, rather than the other way around.

That’s not politically tenable in this country. Again, this is the kind of crap the bores me. You’re never going to get ordinary handguns under NFA-like restrictions. Originally, this was tried when the NFA was passed, and handguns were awkwardly removed under pressure from the National Revolver Association and the NRA. What we were left with was the AOW designation.

“There’s no evidence of a public health issue associated with hearing loss from gunfire,” says Kristin Brown of the Brady Campaign to Prevent Gun Violence. “There is evidence of a public health crisis from gun violence, and we think that’s where legislative efforts should be directed.”

Yeah, she’s an authority for sure. Let’s get Kristen to stand next to a Glock 19 as its magazine is emptied and then see how long it takes her hearing to come back to normal, assuming it does not cause permanent damage. Why doesn’t Kristen ask some of the old dudes at my club, who grew up around unsuppressed gunfire in the days before hearing protection was all that good? She won’t be able to without shouting at them, because they are all deaf as a post. Even those of us who wear hearing protection have had instances where either the foam didn’t fully expand, or the rifle butt slipped them out of position and your next shot rings your ears.

OSHA says that any noise over 85 decibels is the “action level” for requiring workers to wear hearing protection. OSHA warns that exposure of 110dB for a period of one minute risks permanent hearing loss. The sound of a 9mm firing is 160 decibels. That is loud enough to physically burst your eardrums. It will hurt if you’re near it. Also note that the decibel scale is logarithmic rather than linear. For those who don’t get that, it means that 160dB is a whole crapload louder than 85dB that OSHA considers action level. Silencers reduce the report of gunfire to below the level that risks bursting eardrums, but it’s still loud: about 120-130 decibels.

Others point to indications that silencers can reduce public awareness of developing firearm attacks and interfere with law enforcement.

Nonsense. Can you hear the sound of a jackhammer from a pretty good distance? Then you can hear the sound of a suppressed firearm.

The fact is this: if you are around a gun being shot in an indoor environment without suppression, you are more than likely going to suffer permanent hearing loss if you’re not wearing hearing protection. Most people who don’t shoot have have no idea how loud gunfire really is. TV and computer speakers cannot do it justice. People like Kristen Brown and her allies are going to deliberately lie about the effects because they are depending on that public ignorance to derail what is, actually, a legitimate effort to make it easier for people to buy what is honestly a firearm safety accessory that never should have been regulated the way it was in the first place.

Reciprocity for non-resident permits

Via the NRA’s FB page I just found out that Rep. Richard Hudson (R., N.C.) does intend that his bill cover reciprocity of non-resident permits. Which means I probably ought to start looking into getting a non-resident permit from someplace, so I can join Sebastian and Bitter in a small victory dance in Central Park :)

From a purely pragmatic viewpoint, this may make it harder to get passed, because states which have training requirements might object to having them bypassed. So we shall see how that fares in the sausage grinder. And then it has to survive the inevitable court challenges. That having been said, that the bill’s author is starting with that as the base is something I wouldn’t have expected even a couple of years ago.

Journalists’ Gun Policy Arguments Bore Me to Death

Just Don't Bore MeBy now we’ve all head of the mass shooting at the Fort Lauderdale Airport terminal. Joe Huffman speculates whether he picked Florida specifically because Florida banned carrying firearms in airports. Despite what many would accuse, this is not crazy talk: mass shooters often carefully plan their attacks, and consider the possibility of counter attack.

One issue I have with gun policy debates today that play out in the mainstream press is they’ve just gotten utterly boring. Take one of my favorite boring arguments: “He was a law abiding gun owner, until he wasn’t.” You don’t say? People don’t become criminals until they commit a crime? Bowl me over with a feather! This is essentially the argument of Daniel Ruth, columnist for the Tampa Bay Times, who is upset the Florida legislature is debating whether banning firearms in non-sterile areas of airports actually deters anyone intending to go on a killing spree from carrying out the deed. You’d think most of the article would be a discussion about that, but you’d be wrong.

Throughout his article you have passages like: “which would allow some 1.7 million people with concealed carry gun permits to move freely through airport terminals while armed.” Does that not imply something is wrong with 1.7 million people having Florida concealed carry permits? Of course it does, because later Ruth states that allowing firearms in non-sterile areas of airports: “assumes those 1.7 million gun-packing Floridians are Atticus Finch meets Dirty Harry — cool and calm under pressure and always blessed with perfect aim.”

So what bores me with all of this? Here’s the core issue: is society better or worse off allowing ordinary people to possess the ability to effectively apply deadly defensive force in public places. It’s not even really about guns, because if we had particle disrupters as the leading technology to apply deadly force, we’d be debating that. On the core issue at hand, the side represented by Daniel Ruth has pretty much lost the policy debate. Their current arguments on this topic are little more than channeling their anxiety at having lost by attacking the people who won.

It’s not that I have an issue, per se, with debates on the margins of a core issue: if you want to argue allowing teachers to carry firearms in schools risks a gun carelessly carried in a purse ending up in the hands of a student, I think we can have that debate. I can even think of arguments about guns in airport terminals that I might not agree with, but that wouldn’t bore me to death. But people like Daniel Ruth aren’t really interested in making actual arguments on the margins, or even rearguing the core debate with fresh arguments. They are only interested in public expressions of their anxiety at having lost. What surprises me, and is the reason I have absolutely zero respect for the media, is that anyone bothers to publish it. I am interested in sharing and debating ideas, but not so much reading or talking about the social anxiety of journalists.

Prepping the Ground for the Suppressor Fight

You can hate the Washington Post’s ignorant article about suppressors, but I have to admit that tying it to the Trumps was an effin’ brilliant way to frame the issue if the aim is to derail the bill. Why? Because most people don’t really give a shit or understand this issue, but if you try to imply the Trumps have something to gain from it, you trigger all the lefty hate rage, and that gets people who otherwise wouldn’t care motivated to oppose it. If the Trumps want it, surely it must be the Worst. Idea. Ever. That’s exactly what I’m seeing around social media.

The key is to speak out in favor of the issue. Put a human face on it. A lot of the same folks who complain about this bill are the same types who complain about noise emanating from gun clubs. Imagine if clubs could encourage members to use suppression? Right now that’s not a reasonable request because of the regulations. Push the training angle, and how it makes it much safer during instruction if the person being instructed can actually hear commands. This is one of those issues where we have really good arguments, and the other side is stuck hoping people believe Hollywood portrayals of how silencers work, and are willing to jump in and ra! ra! team! in opposition is the issue is framed in a way that triggers an emotional response.

Will Bloomberg Run a Semi-Auto Ban as a Ballot Measure?

I don’t think this Assault Weapons Ban will get through the Washington legislature, which makes me wonder if this is prep for accomplishing the same thing via ballot measure. While Bloomberg very nearly lost the vote in Nevada, and was outright defeated in Maine, he got a stronger margin for his Washington ballot initiative on “gun violence restraining orders” than he did on the private transfer ban. He might be feeling like Washington voters are in the mood for some gun control.

Generally speaking, gun bans have not done very well on the ballot even in liberal states, but as California has shown, things might have changed since the gun control movement last had money for this kind of thing. California is a lost cause, however. I don’t think Washington is. But I also think Bloomberg will keep pushing until he’s rebuked.

Hard to Believe It’s Been a Decade

Without really thinking about it, our 10 year blogoversary came and went. This blog has been sputtering along since January 6th, 2007. A decade of blogging is a lot for anyone, and I am getting tired. At some point, I probably will stop, but I’m not there yet. Obviously my posting frequency has dropped a good bit, but I’m not ready to completely throw in the towel.

A lot of that is really more lack of time than lack of interest. How many of you feel like you’re working harder today than you were a decade ago? A lot, I suspect. Maybe it’s easier when we’re younger. I was 32 when I started what was then Snowflakes In Hell, and didn’t fit the stereotypes of gun owners: the middle-aged fat white guy. A decade later at 42, I look a lot more like the stereotype than I really care to.

When I think back to what the blogging community was like in 2007 versus what blogging is all about today, it’s a night and day difference. When I started, you couldn’t swing a cat without hitting a new blog. Now bloggers who don’t blog for a living are almost extinct. The traditional blog look and feel has given away to the E-zine model (is e-zine even a word anymore?). If you’re not a Google News source, you might as well not exist.

When I started this blog, Facebook had only been open to non-college students for a few months. Twitter also had only been launched a few months before, and no one had really heard of it. Social Media was not a thing, and blogging was a place people went to share and discuss ideas. It was a means to route around the traditional media. Back then, it was even a way to keep the issue ahead of the NRA, who in the days before they had any real social media presence, was usually late to the debates of the day. Today is about as likely I find out about breaking news from NRA’s online presence as I do other sources.

It’s been a hell of a journey. I never would have imagined the people I would get to know through blogging. I hope, over the last decade, I’ve had some kind of positive impact on this issue. I’d like to think what I’ve done here has mattered. As we enter our second decade of publication, I still can’t believe there are people who stop by on a regular basis to read the reams shit that go through my brain and out my fingers! For those that do, a hearty thank you.

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