Shall Not Be Questioned – Page 878 – The right of the citizens to bear arms in defense of themselves and the State …

DC Voting Rights Moving With Pro-Gun Amendment

Looks like, much to VPC’s chagrin, Elanor Holmes Norton is conceding to moving the DC Voting Rights bill forward with the language that removes DC’s gun laws and preempts them from making more. The New York Times calls this “extortion.” I call it making them follow the constitution if they want representation. What will be the likely effects of this?

For one, the voting rights language is pretty straightforwardly unconstitutional. It’s hard to see how it’s going to stand up to scrutiny in the Courts. Article I, Section 2 of the Constitution only specifies representatives are to be apportioned to states, and the extra Utah representation is clearly a violation of apportionment. In addition, it is a violation of several Warren Court decisions that found the 14th Amendment’s equal protection clause prevents some people from having disproportionate representation over other people. It’s hard to see how the actual voting rights bill stands up to constitutional scrutiny.

The gun rights language should be completely severable from the voting rights language. In other words, when the voting rights language is likely invalidated by the Courts, the gun rights language is going to stand. If this passes, and is signed by the President, the “Heller II” case, which just lost at the District Court level, but is appealing, lawsuit will become moot. I don’t consider this a bad thing. We should prefer legislative solutions to unconstitutional laws where we can accomplish that. The Courts are far more risky.

The net effect on this will be that the District of Columbia’s gun laws default to the federal law. To buy a gun you fill out a 4473, and go through the background check. It guts all the assault weapons nonsense out of their law, as well as the licensing, registration, training and ballistic testing requirement. The Districts laws on carrying in public will remain untouched, so the Palmer case, which is being advanced by Alan Gura and SAF will be undisturbed.

I am not too keen on passing an unconstitutional law in order to repeal another unconstitutional law, but in the end I am pragmatic about these things, and believe that this will work out fine for us in the end.

Even More on NRA Terrorist Meme

Noted in Politics Daily, that all these scary guns nuts are coming down for a big rally on April 19th, which happens to be entirely associated with terrorism, and nothing else, of course. It’s just filled with scary Oath Keepers, a group who promises to throw down their government-issued arms and not follow unconstitutional orders. The horror! Because we all know that leads to bombing federal buildings:

Put this all together — saber rattlng, militia fomenting, demonizing government — and you have a brew of far-right paranoia mixed with guns. When have we seen this before? Oh yeah, Timothy McVeigh and the 1995 Oklahoma City bombing. And here’s the kicker: this pro-gun march will happen on the 15th anniversary of the Oklahoma tragedy. This is not insensitivity; it’s a message.

I’m pretty sure that was paranoia mixed with diesel fuel and fertilizer, but that’s splitting hairs to the nuts on the other side of this issue. I don’t want to detract from theirÂ condescension:

That’s right. When people are blasting the federal government as tyrannical, suggesting that government-imposed concentration camps are around the corner, encouraging people to threaten the government with force, orÂ comparing the president to the Nazis and accusing him of being a secret Kenyan-born Muslim imposing socialism on the United States, they are setting the stage for violence. The Tea Partiers are extreme in their hatred of the Obama administration, but these gun-rights radicals are downright dangerous. They talk of insurrection — and they do have guns.

Except many of us here on this loony right fringe have been debunking and denouncing much of this fear mongering and rumor mongering. And I seem to specifically recall stipulating that we don’t start shooting people because we lose an election. I also haven’t made any secret my low opinion of Larry Pratt, who this article paints as a leader in this issue, and someone associated with neo-Nazis.

The problem I have with so many of these so-called pundits and journalists is they assume the people who believe these things are being manipulated and egged on by leadership on the right, who are clearly the masterminds behind the quackery. I suspect behind that belief is a prejudice that the people who believe these things are probably too stupid to think for themselves. These ideas clearly could not have sprung from an organic social movement of thinking people. The great irony is this kind ofÂ condescensionÂ is what’s partly responsible for a lot of this movement to begin with. If you believe these people are wrong, say why they are wrong. But give them the dignity of being able to come up with their own ideas. I agree that many of them are bad ideas, but there’s a way in our society we fight bad ideas, and it’s not what we see from the VPC or Politics Daily.

Walking Through the Gun Show Loophole

The Brady Campaign is busy using the anniversary of the Virginia Tech tragedy, which has precisely nothing to do with gun shows, to promote their campaign to close the “loophole.” Personally, I plan to do something very different. Shortly I will walk through the “loophole,” not once, but twice.

One of the guys I shoot with at the club has been selling off bits of his collection. Last year I bought an M1903-A3 from him using this dreaded loophole. How he’s selling his M1 Garand. As it is, I already have an M1 Garand, but mine was made in 1955, so it’s a late production run. The one he’s selling was made in 1941, and is in pretty good condition. So I might want to make an upgrade. The 1941 model has more historical value, and would still be a decent shooter.

But I don’t have a need for two M1 Garands, so a friend of mine who’s blogged here once before when his Calico M950 blew up on him, is in the market for a new piece, so I figured selling my M1 to him might work out well. So sometime in the next week or two I’m going to buying an M1 Garand made in 1941 through the dreaded “Gun Show Loophole,” then using the same dreaded “Gun Show Loophole,” to sell my current M1 to a friend.

The Brady folks would like you to believe the vast majority of private gun transfers are from one stranger to another stranger, who clearly runs a good chance of being a violent criminal, or some kind of NRA XXXL t-shirt wearing tea party domestic terrorist. But most of them take on the character of what I’m trying to do. Close the gun show “loophole” and force me through an FFL, at the going rates in the Philadelphia area, it would add anywhere from 70 to 100 dollars to the cost of doing this transaction. All so we could make sure people I know for a fact aren’t criminals get the background check. Maybe that’s worth 100 dollars of my money to the Brady folks, but it’s not to me.

NRA is Full of Terrorists

According to Josh Sugarmann’s latest “study,” NRA is full of the next up and coming terrorists. What is their evidence?

Someone who volunteers for NRA once posted photos of a tea party protest she did not attend.
NRA sells shirts that come in XXXL!
We can’t ignore that NRA is hosting a speaker who has spoken at tea party events.
NRA allows outside groups using such inflammatory rhetoric as “pro-family and pro-American” to pay for the ability to add inserts to their catalog shipments.

I’m going back and forth between what the saddest part of this report is and how it speaks of the Violence Policy Center’s fall.

First, there’s the fact that I’ve been charged with doing the type of research he’s supposed to be doing for VPC for other organizations. If I had ever turned in something like this, I would have been laughed out of the building. I would fire an unpaid intern for this kind of work. Yet Josh is being paid more than $145,000 a year for it.

Second, there’s the concern that Josh has over whether or not NRA will meet its political goals. In noting that some NRA volunteers have political opinions on topics other than gun rights, Josh seems upset by this may interfere with NRA’s political success.

These links raise questions not only regarding the grassroots role of the NRAâ€™s activists on issues beyond gun control, but also whether the independence of Tea Party activists will conflict with their expected support of the NRAâ€™s preferred candidates.

I’m so happy that Josh wants us to have all of our activists dedicated to winning elections for pro-gun candidates all of the time! We’re really happy to have your support, VPC!

Third, there’s also the issue that Google seems to be failing for poor Josh. See, both of us are volunteers for NRA. And we attended a candidate forum – hosted by self-proclaimed tea party activists. We even attended a tea party event in a park that celebrates the actions of a traitor honored by the so-called pro-America movement. They embraced vulgar language. The participants were clearly future terrorists who are already prepared for war. As a fellow activist suggested, it looks like Josh needs to switch to Bing.

Colorado Preemption Applies to State Universities

An Appeals Court in Colorado ruled that the University Board of Regents is subject to preemption, and has to honor State permits to carry. If you want to read the opinion, you can find it here. As the Appeals Court says, “Had the legislature intended to exempt universities [from preemption], it knew how to do so.” The Regents, in this case, seem to have taken up two main arguments, arguing that they were not a “local government” under the preemption law, and that the Colorado Concealed Carry Act didn’t divest them of any power to regulate the campus environment. The Appeals Court rejected both of these arguments:

As with their “local government” argument, the Regents’ “express divestiture” argument is undermined by section 18-12-214, which reflects the legislature’s intent to subject “all areas of the state,” except those specifically enumerated, to uniform regulation of concealed handgun carry.

Congratulations also to Dave Kopel, who was cited in this Appeals Court ruling as an example of the scholarly and public debate on this subject, alongside the Brady Campaign folks who were examples from the other side of the issue.

Another bit of good news in this ruling is that the Appeals Court rejected rational basis review for claims under Colorado’s right to keep and bear arms provision. While not forcing strict scrutiny, it did adopt a “reasonable exercise test” that was applied in a previous case, and is a form of intermediate scrutiny. The case is remanded the case back to lower court for consideration along that standard. It doesn’t seem anyone wants to come out and say strictÂ scrutinyÂ for the RKBA, which is a shame, but maybe we’ll get there.

This would appear, to me, to be a great victory for Students for Concealed Carry on Campus, who were theÂ plaintiffsÂ in this case. Lets hope this goes as well at the Colorado Supreme Court should the Regents decide to appeal.

Hat tip to Dave Hardy for the pointer.

CWI Bill Killed in New York Assembly

Jacob is reporting that Bloomberg’s Carrying While Intoxicated bill has been killed in the New York State Assembly. As I mentioned before, while I don’t support carrying while intoxicated, the New York Bill had some serious constitutional problems, in that refusing to surrender your Fourth Amendment rights meant you lost your Second Amendment rights.

This is a victory for the Bill of Rights, all around. Now Bloomberg can go back to the important issues, such as regulating people’s salt and trans-fat intake.

NRA’s T-Shirt Terrorism

Josh Sugarmann is going way over the top again, trying to argue that NRA’s Gadsden Flag T-shirt is fomenting terrorism, along with standing up for the Constitution. I kid you not. One has to wonder whether Josh Sugarmann thinks that the United States Navy is also fomenting terrorism.

VPC is increasingly becoming anÂ irreverentÂ joke. A sadÂ caricatureÂ of a dying movement.

The ObaMessiah Issue

We’ve seen people praise Obama like he’s the Messiah. If you want to see that x10, well, just look forward to the 2012 election. I’m not just talking about the campaign workers.

Some are pushing the Department of Homeland Security to do a 2012 apocalypse-themed education campaign. I admit that it’s a witty theme for disaster preparedness. If I sold preparedness supplies, I would probably tap into it – at least based on the marketing data Yahoo mentions. But if the government hops on board with that theme in an election year for a President who has already been labeled a Messiah-like figure, it’s just going to make the crazy folks even crazier. I know I’m already tired of the nuttiness. I just want to get down to business and boot some lawmakers out, not deal with conspiracy theorists.

Takings Clause and the Second Amendment

Eugene Volokh takes a look at the case of US v. Edward L. Brown. The question seems to be whether the Court can order a collection destroyed after the collector is convicted of a felony, or whether the collector is permitted to transfer the collection:

For example, the ordered destruction would seem to raise serious Takings Clause issues. Firearms subject to neither lawful forfeiture nor confiscation as contraband (as in this case) remain valuable tangible personal property belonging to the convicted felon. I doubt the governmentâ€™s right to simply confiscate and destroy such valuable property without first affording due process and payment of just compensation, even if it is accepted that the felon-owner cannot unilaterally transfer his ownership rights following a felony conviction. In Cooper v. City of Greenwood, 904 F.2d 302 (5th Cir.1990), for example, the Fifth Circuit recognized that even one convicted of illegally possessing firearms does not lose his or her property interest in the firearms by virtue of the conviction alone. That property interest cannot be simply taken by the government without affording the property owner due process ofÂ law….

The Court seems to have argued that the government can direct the liquidation of the collection for the convicted person’s benefit. Meaning the government directs the collection to be sold, with the proceeds going to the convict. This would seem to me to be the fair way of going about it.

This is all assuming it’s a case where the firearm isn’t subject to forfeiture, or is contraband. Obviously if a collection of guns is pulled off a drug dealer, those guns are subject to forfeiture, along with other property used in furtherance of the crime. Another case would be an unregistered machine gun, being contraband, could just be taken.

California Considering Open Carry Ban

In response to the open carry controversy generated in California, it looks like anti-gun activists there are going to run a bill to ban the practice. Obviously there’s going to be opposition to this, but gun owners in California are at a political disadvantage. Whether you agree with open carry or not, this has to be opposed. Now isn’t the time to point fingers at each other.