Shall Not Be Questioned

Josh Sugarmann would probably love it if we called for a Zumboing of Jan Libourel.  It would confirm everything he believes about us.  But it’s not likely.  See, I don’t have a problem with Libourel expressing his opinion:

However, being an old-fashioned, low-tech sort of guy, I always felt that a plain old short-barreled 12 gauge pump gun or autoloader was all the urban defense gun I’d ever need. In most urban jurisdictions, it would be pretty hard for a civilian to plead necessary self-defense if he engaged in a shootout at ranges greater than the 35 yards or so at which buckshot is effective.”

There’s a big difference between that, and:

I’ll go so far as to call them “terrorist” rifles.[…] We don’t need to be lumped into the group of people who terrorize the world with them, which is an obvious concern.[…] To most of the public, an assault rifle is a terrifying thing. Let’s divorce ourselves from them. I say game departments should ban them from the prairies and woods.

One is an opinion.  The other is advocating imposing an opinion on others who don’t share it through force of law, with more than a bit of condescension for people who don’t follow his ‘true way’ mixed in.  I would expect Josh to have a lot of sympathy for such a position.

I have not read Libourel’s entire article to say for sure I have no quarrel with anything written, but I certainly don’t take serious offense to any of the parts that Josh quoted.  I might not completely share his poorly hidden condescension toward survivalists, and disciplines like “urban rifle,” but it’s not on the order of what Zumbo wrote.  Not even close.

Based on what was quoted by Sugarmann, Libourel isn’t specifically calling for bans on politically incorrect firearms.  Is he expressing skepticism of their utility in certain situations?  Yes.  Is expressing disagreement with survivalist notions, and those who wax nostalgic about revolution?  Sure.  But anyone who’s read this blog for long enough knows that I have not been shy about directly challenging some of these philosophies myself, and while I’ve caught a lot of fire from some quarters for it, I don’t think I’m an isolated outpost in a vast sea of radicalism.

I think Sugarmann makes the mistake of believing that, as a community, we’re ultimately conformist and single minded; mindless sheep bleating whatever the NRA tells us to bleat.  I would expect someone as academic in his opposition research as Josh to know that’s not true.  There’s room to argue whether a shotgun loaded with buckshot (far more deadly at close range than an AR-15) might be better in urban settings.  There’s room to argue over philosophy.  We do it all the time.  But as a community, we know the dangers of driving division, which is what Zumbo was promoting. Libourel hasn’t, claiming membership in a common community of gun owners, advocated for the firearms of some members of that community to be banned or restricted.  He has not called on people to condem survivalists as terrorists, or said that the real shooting community ought to distance itself from these scary practical shooters. That was Zumbo’s sin.  Libourel might be and old fashioned kind of guy when it comes to guns and shooting, but if Josh is expecting a Zumboing to soon follow, he’s going to be sorely disappointed.

Over at the AHSA Facebook site, Ray Schoenke says:

The truth is the lower courts of appeals are supposed to follow precedent. That is what Sotomayor did. When she’s a supreme court justice, she will follow the precedent set by heller, and hopefully incorporate the right as fundamental to ALL STATES.

Except you’re ignoring evidence that she doesn’t believe in incorporation at all.  Understand Ray, that means something.  Are you really willing to stake the reputation of your organization (not that is has much of one) on Sotomayor ruling in favor of incorporation when the issue comes before the Court?  That seems like a lousy bet to me.

But on the issue at hand, he’s correct.  Sotomayor was bound by precedent to rule the way she did in Maloney.  In Nordyke, the 9th Circuit case, the Court of Appeals had the option of proceeding forward with analysis of the Second Amendment under the due process clause because that path had not been closed by prior circuit precedent.  Now, a circuit court can overturn its own precedent, but only in an En Banc hearing.

If it hadn’t been for Bach vs. Pataki, it might have been possible for the panel in Maloney to take a more detailed look at incorporation, and whether Presser vs. Illinois is still binding, but Bach vs. Pataki shuts the door on how much a panel can do.  Because in Bach, the 2nd Circuit Court of Appeals did not address the issue of the Second Amendment being an individual right or not, and only focused on application to the states through the 14th amendment, Heller can’t really be seen as overuling Bach.

None of this means that Sotomayor believes the Second Amendment should be incorporated.  We have some evidence that she does not believe this.  It’s a question she will have to answer in her confirmation hearings.  The fact that Ray Schoenke is already jumping on board the Sotomayor train, before we’ve had an adequate opportunity to flesh out her views in a hearing, tells me that AHSA is not a serious gun rights group, but is rather a shill for the Democratic party.  Any real gun rights group would be supremely cautious about Sonya Sotomayor.