Category: Guns

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.

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

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.