Sebastian – Page 643 – Shall Not Be Questioned

Legislative Priorities in the 112th Congress

I don’t know what NRA is thinking, but I’m thinking our two top priorities need to be:

Trying again for national reciprocity.
Federal preemption of state and local gun bans.

I know that NRA probably also wants to push ATF reform, and I agree this is important, but these two issues can be carried out using Congress’ Section 5 enforcement powers under the 14th Amendment. There is court precedent in the case of City of Boerne v. Flores, which stated that Congress did not have enforcement powers that were more broad than the Court has established. Justice Kennedy’s opinion from that case:

Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation.

There have been subsequent cases backing up this one, which could make both of these legislative actions problematic. But I am not one to believe the Supreme Court’s rulings were chiseled on stone tablets brought down from Mount Horeb. There is language in Heller to support both of these. Let the Congress tell the Supreme Court what they think the breadth of the Second Amendment is, and let the Supreme Court tell the elected branches of government why that is not the case. Personally, I think they’ll be very reluctant to overturn Congress’ determination.

I believe these two items are more important than ATF reform because they put us on the offensive in the Courts, rather than the defensive. Rather than having to justify why certain restrictions are unconstitutional, we leave our opponents arguing why an Act of Congress is beyond its Section 5 powers under the 14th Amendment. ATF reform is great, but it doesn’t help us much in our struggle to define the meaning of the Second Amendment, which is the most important thing we’re facing right now.

A Right to Keep and Bear Ammunition

Decided by the DC Court of Appeals. Dave Hardy notes that a few years ago, this would have been unthinkable.

Self Absorption

Tam’s note on politicians:

It takes a special kind of hubris to wake up one morning and decide that what this world is lacking is your visionary leadership, and an even more perfectly-distilled narcissism to think that if millions of people don’t like you, the problem is withÂ all of them.

Pretty much. It occurred to me this election how I’d feel to have a group of people surrounding me with my name on buttons, stickers, hats, all cheering me on and chanting my name. Answer? Pretty damned awkward. In fact, creepy would probably be a better word. I don’t think I could ever be comfortable with it. Would you be? Think about the kind of person who would be comfortable with it, and you see the issue.

That’s not to say there aren’t politicians out there motivated by public service, but you have to have a bit of a narcissistic streak to want this kind of job. I’ve generally found office holders at the state and local level tend to be more real people. The higher you go, the more perfectly distilled the narcissism.Â Makes sense if you think about it. In a state level race at best you’ll get a room loosely filled with people cheering you on. Many of them will be friends and people you know. But imagine a Greek themed stadium full of people, all set up just for you, projecting their hopes, dreams and aspirations onto you, all because you can read a mean speech from a teleprompter. That’s a fundamental flaw in the human species that transcends politics.

Brady Goes Down to Defeat

Normally, I’d love writing that headline, but not for this particular Brady. The prospects for getting a pro-gun Governor of Illinois are very dim now, and as Bitter mentioned, the state House race we put the most effort into this year lost by 99 votes. Ninety-nine votes. This would have replaced an anti-gun Democrat with a pro-gun Republican. Despite winning in every other race, this one still stings. It would have been a great pickup for gun rights in our district, and in Pennsylvania. Never believe one vote doesn’t count, or one person can’t make a difference. Had I been able to send one or two more people to help out this campaign, we might have been able to make up those ninety-nine votes.

Can Condos Ban Guns?

It’s an interesting question, and it’s coming up in New Jersey. I’ve often heard of homeowners associations banning signage, or dictating what color you paint your house. But can they ban guns, or otherwise infringe on civil liberties? There’s quite a lot of confusion about how civil rights law is applied within the gun rights community, but it seems to me you might be able to sue the homeowners association under 18 USC 1595, which provides for civil action against violators of the Civil Rights Act, namely 18 USC 241, conspiracy against rights. Civil Rights Law isn’t something I’m an expert on, so maybe this isn’t actionable, but unlike pure advocacy against gun rights, which is not considered a legal conspiracy, actually preventing people, or conspiring to prevent people, from exercising a constitutional right would seem to be to be unlawful activity under the Civil Rights Act, and subject to civil as well as criminal penalties.

UPDATE: Thinking about it more, if you were a prospective homeowner, coming into an association that banned guns, you probably don’t have a case, because you willingly agreed to surrender your rights. If you were an existing homeowner within an association, and that association votes to ban guns, I think you may have a case. You may have contracted to abide by the dictates of the homeowners association when you bought the house, but I think a reasonable argument could be made that can’t extend so far as to deprive one of constitutional rights.

Right on Cue

The Bradys are beginning their bid to win back the support of the Democratic Party by arguing that NRA was hapless to save endorsed Democrats this election. I will retort back that this election was not about gun control or gun rights. In races where gun control groups tried to press the issue, they were defeated severely, such as in Pennsylvania, and in Virginia.

Why the Poor Senate Showing?

It’s hard to argue the GOP didn’t fall down a bit in the Senate races. In the races the GOP did win, the margins were closer than many of the House races, and in the ones they lost they lost pretty substantially. Jim Geraghty argues that it might have to do with the quality of candidates, a sentiment echoed by Michael Barone in the Washington Examiner. I tend to think this is a correct analysis, largely driven by the fact that the structure of the Tea Party movement. When it comes to Congressional Districts, most seem to have only one or two Tea Party groups, who presumably don’t find it too difficult to coordinate on local races, like a House race. The Tea Party movement at the local level have some defined structure, and look more like traditional political civic groups. But take that out to a statewide race and the Tea Party starts to look more like a mob than an organization. As our Founding Fathers were aware, mobs seldom make prudent choices.

Choices like Angle and O’Donnell, are examples of this, though there are many more. None of these candidates to me looked like winners. The big unknown question was how far could Tea Party enthusiasm take lackluster candidates in state wide races. The answer would appear to be not very far. This isn’t surprising considering Tea Party supporters only make up about 30% of the population. It doesn’t change the fundamental dynamic that you still have to build a coalition to win.

Choosing the right candidate is difficult when you’re an organic movement, made up of people who normally don’t participate in the political process. Organic movements are going to gravitate towards candidates based on ideological compatibility, rather than their ability to actually run a statewide campaign and win. When assessing the viability of a candidate’s political potential for federal office, I’m only looking at a couple of factors in order of importance:

His or her ability to raise money.
His or her ability to manage a campaign, or hire the right people to do it (see above)
His or her ability to connect with ordinary Americans who are not ideological in their political preferences.
His or her values in comparison to the voters they will be going before.

For a state level or local race, fundraising can drop in importance, depending on the district. A candidate that’s willing to go knock on thousands of doors, and has a way with people, can overcome a fundraising deficit in a local race. There are plenty of politicians in state and local offices who are dogged campaigners, but can’t raise money worth a damn when they try to move to a higher level office. That’s one reason, as much as I love Sam Rohrer, I didn’t think his candidacy had a chance. Look at any race, and how or why they lose comes down to one or more of these issues. When I’m looking at a candidate in a primary race, I’m only looking for someone who’s ideology roughly matches up with my own. I’m more interested in someone that can win in the district they are running in. Depending on the district, this is either going to mean high ideological compatibility, or having to pick a few issues of importance and compromising on the rest. In Delaware, Nevada, and many other places, Tea Party backers needed more of the latter and less of the former. I think the organic nature of the Tea Party movement is going to mean they get it wrong in state wide races just about as often as they get it right. How one could improve candidate selection, without destroying the grassroots nature of the movement, Â is an interesting question.

Silver Lining in New York

Although the GOP was trounced in state wide races, in state legislative races, there were some gains. We did not knock off Carrie McCarthy, but that was a long shot anyway.

Harry Reid’s Survival

Reid coasted to an easy five point victory over Sharon Angle, and as predicted, the GOP failed to win control of the Senate. The Democrats have 51 firm seats as of now, and look to pick up another two. Prospects for the Senate were grim the moment that O’Donnell defeated Castle in the Delaware Primary, and Lisa Murkowski announced a write-in campaign.

This leaves Reid still Majority Leader in the Senate, and to be honest, that’s the best outcome for us. This prevents Durbin or Schumer becoming majority leader. A great many conservatives were upset by NRA’s refusal to endorse Sharon Angle, but I think it’s hard to argue they made a poor strategic decision by sitting this one out. Reid probably would have won the day regardless, and now we at least have a majority leader we can hopefully still work with.

Declaring Victory

I said last night that the Bradys were sure to react to the elections by declaring victory, just like with Heller and McDonald. Here’s the declaration. Dave Kopel takes a more serious look at how this election fared for the Second Amendment. Last night may not have been the best of nights for NRA’s win-percentage, but it was still a good night for the Second Amendment.