Guns – Page 605 – Shall Not Be Questioned

Kopel’s Testimony on Kagan

I meant to post this earlier, but I’ve been distracted by a few things – including talking to a potential new addition to the EVC program in Pennsylvania. Woo hoo. But, I’ve also been trying to keep up with the Kagan hearings. What’s interesting is that as I was reading Dave Kopel’s testimony on Kagan, I heard his concerns brought up by Sen. Jeff Sessions.

The unfortunate lesson of the confirmation of Justice Sotomayor is that Senators who care about the Second Amendment cannot rely on platitudes about “settled law” or even direct promises to abide by Heller. Before this Committee, Ms. Sotomayor declared, “I understand the individual right fully that the Supreme Court recognized in Heller.” And, “I understand how important the right to bear arms is to many, many Americans.

To the Senate Judiciary Committee, Justice Sotomayor repeatedly averred that Heller is “settled law.” The Associated Press reported that Sen. Mark Udall “said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases.”

Yet on June 28, 2010, Justice Sotomayor joined Justice Breyerâ€˜s dissenting opinion in McDonald v. Chicago, and announced that Heller was wrongly decided and should be over-ruled. Apparently her true belief was not what she told this Committee, but instead: “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.”

So by “settled law,” nominee Sotomayor seems to have meant “not settled; should be overturned immediately.”

Accordingly, statements from Ms. Kagan about Heller being “settled law” provide not an iota of assurance that as a Justice she would support Heller, rather than attempt to eliminate it.

Can Board Members Speak for NRA?

For folks who don’t know much about how NRA works internally, I can probably explain this Politics Daily article, and also what’s appearing over at Bucks Right. NRA’s internal board rules (which are set by the Board itself, as an elected body) prevent Board members from speaking on behalf of the organization. This is longstanding practice by the Board, and not something new. This rule exists because everyone recognizes that NRA must be able to speak with a single voice on issues. NRA would not be able to function if each individual Board member could speak out on positions on behalf of the organization as a whole. One can imagine what that would be like, if, say, Joaquin Jackson thought it was OK to speak on NRA’s behalf.

During the Sotomayor hearings, there was confusion among Senators about NRA’s position, despite efforts by Board members speaking out against Sotomayor that they spoke for themselves and not in any official capacity with NRA. I am not privy to what goes on in executive session duringÂ committeeÂ meetings, so I really don’t know what happened. I am sure, just like with any family dispute, there were issues and sore feelings over how the Sotomayor thing went down. But I am also sure there were no gag orders. The Board does not take orders from staff. Things just don’t work that way.

Won’t Someone Think Of the Children?

That’s what Mom’s Against Guns is saying, as they merge with CeaseFirePA. We covered Mom’s Against Guns once before, when they obtained free billboards in the Philadelphia Area on false pretenses of being a 501(c)(3). Well, I guess now they won’t have to worry about their corporate status, having ~~failed and~~ merged withÂ CeaseFire PA.

Reciprocity Under Attack Again

For those of you in Pennsylvania, today the anti-gunners are coming after concealed carry reciprocity once again. They have put off the vote over and over again since they can’t quite scrape together enough. If this really comes up, it likely means they have the votes or they are close enough that they think they can swing it.

You know what to do. Contact information is here.

McDonald Quote of the Day

From Glenn Reynolds’s article on gun rights becoming normal:

For gun rights activists, that has both upsides and downsides. On the one hand, it means that some gun-control laws, at least, will now be found unconstitutional. Most of the work of doing this will be done by lower courts, which have traditionally been pretty dismissive of Second Amendment rights, but thereâ€™sÂ some sign that lower courts are taking things more seriously sinceÂ Heller, and this case is likely to reinforce things considerably. Chicagoâ€™s existing anti-gun ordinance is very likely to be struck down now, as it is virtually the same as the D.C. gun ban struck down inÂ Heller. Other highly restrictive laws are also likely to fall.

On the other hand, if gun-rights activists sit back and expect the courts to do their work for them now, they will be sadly disappointed. If pressed with further cases (which Gura says he plans to bring), the courts will do some good. But the primary protection for gun rights up to now, and for all constitutional rights, really, is political. Judicial review was intended by the Framers to be a backup system, not the main source of protection. That was intended to come from the people â€” and realistically, because if people donâ€™t stand up for their own rights, courts are unlikely to take up the slack for long. (Especially when, as here, the protection comes in a 5-4 decision).

Absolutely. This is not the time for us to just let the courts handle things. SAF is a fine organization, and is doing great work with their litigation strategy. But they are a 501(c)(3), which means they cannotÂ participateÂ in the political process to the degree NRA can. Both groups are important. Professor Reynolds concludes:

Nonetheless, the Supreme Courtâ€™s Second Amendment decisions have made a major difference. In particular, they have offset the gun-control communityâ€™s longstanding effort to â€œdenormalizeâ€ firearms ownership â€” to portray it as something threatening, deviant, and vaguely perverse, and hence demanding strict regulation, if not outright prohibition. That effort went on for decades, and received much media support. Two decades ago, it seemed to be working.

But with the Supreme Court saying that itâ€™s clear the Framers regarded individual gun ownership as â€œnecessary to our system of ordered liberty,â€ that effort must be seen as a failure now. Gun ownership by law-abiding citizens is the new normal, and the Second Amendment is now normal constitutional law. It will stay so, as long as enough Americans care to keep it that way.

Read the whole article. Well worth your time. It’s almost hard to believe this is true, and when I first got into this issue I wouldn’t have believed it. But I’m increasingly believing it is true –they’ve lost this aspect of the culture wars. Now we just need to win broad protection for our rights.

Kopel to Testify at Kagan Hearing

Glad to hear Dave will be up on the Hill before the Judiciary Committee. Dave is not a Board member, but is friendly among NRA circles. Tomorrow on Red State:Â “Chris Cox seen boarding a flight to Denver with leg irons and a roll of duct tape.”

The Gag Order Rumor is Unequivocally False

Chris Cox made an appearance on NRA News about an hour ago where he talked about the rumors that NRA issued a gag order against it’s Board members. I pointed out yesterday, due to the structure of NRA, this is not really possible, but held out the possibility staff may have asked the Board not to get involved with the Kagan hearings. After doing all the research, I have concluded that they have not even done this. First, let’s see what Chris had to say:

[youtube]http://www.youtube.com/watch?v=0VHHpEplIvQ[/youtube]

Now, I figured some people reluctant to take Chris at his word, because no doubt many know he’s been secretly keeping the NRA Board members in the dungeon at HQ (it’s located in the space right next to the NRA range, for those who don’t know). So today I had Bitter digging around, and talking to Board members. Scott Bach was willing to go on the record and say there’s been no “gag” order, or even a polite request. Tom King you’ve already heard from. Joe DeBergalis is saying the same story over at AR-15.com. If there’s been a gag order, it would seem none of the NRA Board members got the memo! Perhaps Chris Cox’s e-mail was broken that day. Or perhaps they were afraid to talk with the .45 ACP held to their heads. Who knows!

The accusations that I’m a shill, brown nose, and suck up are going to keep on coming in. The truth is that none of these folks have even a vague idea of what NRA’s real problems are. To be blunt, most of them don’t even know or care how NRA functions. So yes, I will keep defending the organization against half-baked criticisms and false rumors, spread by people who are far better at tearing down than building up, and I will do it without apology.

Commentary on McDonald

Bob Cottrol, who was cited in McDonald, comments over at SCOTUSBlog.

How Brady Really Won

Dennis Henigan explains:

LaPierre may also be contemplating the future of the gun debate now that handgun bans are â€œoff the table,â€ in the words of theÂ Heller majority opinion. How long will the NRAâ€™s leadership be able to argue, with anything approaching a straight face, that the Second Amendment precludes gun regulations like background checks, limits on large-volume sales, safe storage requirements, assault weapon bans, owner licensing, and registration of gun sales, when bothÂ Heller andÂ McDonald read like legal briefs for the constitutionality of those laws? And, more importantly, how long will the NRAâ€™s leadership be successful in using its legendary scare tactics to convince gun owners to oppose every gun regulation as a step down the â€œslippery slopeâ€ to a gun ban, whenÂ Heller andÂ McDonald have taken gun bans â€œoff the tableâ€?

Wayne’s really scared, you see. The gig’s about to be up. This was a secret plan to win it all on the part of the Bradys all along! Â I am the Great Oz! Pay no attention to the man behind the curtain. But how is the Brady Campaign going to keep raising money based on an end product they can no longer deliver? How many people are going to give to close the gun show loophole? How many people even understand it?Â No, the fight isn’t over. Not by a long shot. I don’t know anyone at NRA who believes that, or is worried about too many people without enough to do. But let’s go down the list anyway:

“like background checks”

No one, to my knowledge has made that argument yet. But what if the system goes down for a few days? For those two days, the Second Amendment is cancelled? I that case it defaults to the Brady waiting period. But is a waiting period unconstitutional? Can you delay exercise of a constitutional right? If so, by how much? The Supreme Court in Casey upheld a waiting period for abortions of twenty-four hours, but rejected a forty-eight hour period.

“limits on large-volume sales”

What other constitutional right can you ration? If you want to buy a gun for your vacation home, and a gun for your regular home, and of course we don’t have carry, because the Bradys tell us a ban on that is constitutional, so you can have your Second Amendment rights at your home, but not your vacation home, unless you wait a month?

“safe storage requirements”

Already largely thrown out in Heller because it substantially burdens self-defense with a firearm.

“assault weapon bans”

Assault weapons are in common use, and used for lawful purposes. They are useful for self-defense, otherwise the police would not use them.

“owner licensing, and registration of gun sales”

The only other fundamental right that’s licensed is marriage. There are some rights you have to register to exercise. This one they might have the strongest case on. But it’s not open and shut, like they make it out to be. There’s ample reasons with other rights why you can’t be required to get a license or register. This is one area that’s probably smarter to fight in the political arena rather than the Courts.

More on NRA “Gag Order”

This is an update from the post from yesterday about an alleged “gag order” from NRA to its Board of Directors, as reported by Red State. From Tom King, President of New York State Rifle and Pistol Association, and also a member of the NRA Board.

NRA Members of New York,

There are a myriad of rumors regarding the NRA cluttering the internet but one in particular is causing me personal anguish. That rumor reports that the NRA staff has issued a gag order to the NRA Board of Directors regarding comments on the nomination of Elena Kagen to the Supreme Court. Let me explain something about the structure of the NRA; authority to do anything within the NRA comes from you the members of the NRA. That authority is delegated to your elected Board of Directors who in turn elects officers and formulate policy that is then issued to the Executive Vice President/CEO who then turns that policy into action through the professional staff. Gag orders for the Board of Directors do not exist.

Friends; those of you close to me should know by now that telling me I canâ€™t speak up on an issue of vital importance to the 2nd Amendment is going to get you into a war. I spoke vociferously regarding the nomination of Sonya Sotomayor to the Supreme Court; in fact I joined a number of national 2nd Amendment leaders protesting the appointment and urging through a nationally published letter she not be confirmed. I did that because of her ties to New York State and the position she took, on then recent, anti 2nd Amendment decisions. I have not taken a position on Elena Kagenâ€™s nomination to the Supreme Court because I find it absurd that anyone with no judicial experience would be nominated to the Supreme Court and fervently hope the Republican Senators will block this nomination.

The 2nd Amendment protects all the rest. Why would the NRA, the protector of the 2nd Amendment, attempt to limit the 1st Amendment rights of itsâ€™ own Board of Directors? It does not but if you think the Board members you voted for could be gagged then you voted for the wrong guys.

Tom King
NRA Board of Directors
President
NYS Rifle & Pistol Association
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So I think it’s safe to say that no such gag order exists. Like I said, really, the best NRA staff can do is ask. They’re not really in any position to demand. NRA has stated its position on this nomination, and we’re still going through the confirmation hearings currently.