Second Amendment

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Trying To Decide Between #NeverTrump Or #NeverHillary? Ponder This.

July 13, 2016 by 8 Comments

This presidential election may be historic if for no other reason than both presumptive nominees are grossly unpopular. Now if you like Donald Trump or you like Hillary Clinton and you object to that statement, then you are probably in the minority. Both candidates had unfavorability ratings of over 50% as of late June. Frankly, I don’t see that changing.

I’ll admit right up front that Donald Trump was not my first choice. Heck, he wasn’t even my fourth choice. At the start of the primary season, I considered Rand Paul, Marco Rubio, and Ted Cruz as potential recipients of my vote. I added Carly Fiorina to that list after I saw how she handled the press.

As to Hillary Clinton, oh, please. Her primary qualification to me seems that she married the right guy to have pulled her along with him to national prominence. Without Bill Clinton, she’d be just another Yale educated lawyer with political ambitions. It is doubtful that she would have ever been elected a US Senator from any state especially given she had held no prior elected offices. She would never have been Secretary of State as she wasn’t one of the “wise old men” like a Warren Christoper, a college professor specializing in foreign policy like  Kissinger or Madeleine Albright, or a general like George Marshall.

To those who would say I’m forgetting about Gary Johnson, I’m not. While he has gathered more support than prior Libertarian candidates, his role in this election is that of a spoiler. He will either take just enough #NeverTrump Republican votes from Donald Trump for Hillary to win or he will take just enough Bernie supporting Millennials from Hillary for Trump to win. I’ve participated in every election since 1976 and have studied American presidential politics at the graduate level. Gary Johnson being elected President just isn’t going to happen.

Justice Ruth Bader Ginsburg was interviewed by the New York Times on Friday. What she said should clarify for any gun owner or any Second Amendment supporter what this race for President is really about. This holds true for both the deer hunters in Gun Culture 1.0 with their .30-06 Remington 700s and the non-hunting concealed carriers in Gun Culture 2.0 with their Glock 19s.

This election is about the Supreme Court which now stands in a four to four split between conservatives and liberals. Another way of putting it is that neither the Originalists nor the Living Constitutionalists hold a majority.

Justice Ginsburg was asked whether there were any cases of recent memory that she would like to see overturned. Here is what she said:

Asked if there were cases she would like to see the court overturn before she leaves it, she named one.


“It won’t happen,” she said. “It would be an impossible dream. But I’d love to see Citizens United overruled.”


She mulled whether the court could revisit its 2013 decision in Shelby County v. Holder, which effectively struck down a key part of the Voting Rights Act. She said she did not see how that could be done.


The court’s 2008 decision in District of Columbia v. Heller, establishing an individual right to own guns, may be another matter, she said.


“I thought Heller was “a very bad decision,” she said, adding that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.


Should Judge Garland or another Democratic appointee join the court, Justice Ginsburg will find herself in a new position, and the thought seemed to please her.


“It means that I’ll be among five more often than among four,” she said.

Rest assured that Michael Bloomberg would spend big bucks to get a gun control case before a Supreme Court in which Justice Ginsburg was now among the five who believe there is no individual right to own a weapon of any sort (firearm, knife, sharp stick). The Wall Street Journal noted yesterday in an editorial that Justice Ginsburg thinks the Second Amendment obsolete and that there isn’t even a need for the militia anymore.

So unless something untoward happens this week or next at the Republican National Convention, Donald Trump, warts and all, will be the nominee. He is on record as supporting the Second Amendment as an individual right and is on record as opposing gun-free zones.

The coronation of Hillary Clinton will take place in Philadephia the following week. She is on record as saying she’d “change the gun culture”. To think that a President Hillary Clinton would appoint anyone to replace Justice Scalia that believed as he did that the Second Amendment guarantees an individual right is ludicrous.

I still don’t really like Donald Trump. However, I am adult enough to realize that stomping my feet and saying I’m not going to vote or that I’ll vote for Gary Johnson is giving aid and comfort to Hillary. This election has become a zero-sum game for the Second Amendment. If Hillary wins, we lose.

I’ll boil it down to the essentials:  If you are #NeverTrump, then you are #NeverGuns.

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A Win In The 4th Circuit (Updated)

February 5, 2016 by 4 Comments

The 4th Circuit Court of Appeals has not been too good for gun rights in the past few years. However, a case involving Maryland make signal a change. Kolbe v. Hogan (formerly Kolbe v. O’Malley) challenged Maryland’s ban on certain semi-auto firearms and standard capacity on Second Amendment and Equal Protection Clause grounds. The District Court for Maryland agreed with the state’s arguments and found the bans were constitutional using intermediate scrutiny.

Today, the 4th Circuit overturned that decision in part and remanded it back to the District Court to be reconsidered using strict scrutiny. The court affirmed the District Court’s dismissal of the Equal Protection claims involving retired law enforcement and the vagueness claims that “copies” of certain firearms were not specific enough.

From the synopsis of the decision:

TRAXLER, Chief Judge, wrote the opinion for the court as to
Parts I, II, and III, in which Judge Agee joined.

In April 2013, Maryland passed the Firearm Safety Act
(“FSA”), which, among other things, bans law-abiding citizens,
with the exception of retired law enforcement officers, from
possessing the vast majority of semi-automatic rifles commonly
kept by several million American citizens for defending their
families and homes and other lawful purposes. Plaintiffs raise
a number of challenges to the FSA, contending that the “assault
weapons” ban trenches upon the core Second Amendment right to
keep firearms in defense of hearth and home, that the FSA’s ban
of certain larger-capacity detachable magazines (“LCMs”)
likewise violates the Second Amendment, that the exception to
the ban for retired officers violates the Equal Protection
Clause, and that the FSA is void for vagueness to the extent
that it prohibits possession of “copies” of the specifically
identified semi-automatic rifles banned by the FSA. The
district court rejected Plaintiffs’ Second Amendment challenges,
concluding that the “assault weapons” and larger-capacity
magazine bans passed constitutional muster under intermediate
scrutiny review. The district court also denied Plaintiffs’
equal protection and vagueness claims.

In our view, Maryland law implicates the core protection of
the Second Amendment—“the right of law-abiding responsible

citizens to use arms in defense of hearth and home,” District of
Columbia v. Heller, 554 U.S. 570, 635 (2008), and we are
compelled by Heller and McDonald v. City of Chicago, 561 U.S.
742 (2010), as well as our own precedent in the wake of these
decisions, to conclude that the burden is substantial and strict
scrutiny is the applicable standard of review for Plaintiffs’
Second Amendment claim. Thus, the panel vacates the district
court’s denial of Plaintiffs’ Second Amendment claims and
remands for the district court to apply strict scrutiny. The
panel affirms the district court’s denial of Plaintiffs’ Equal
Protection challenge to the statutory exception allowing retired
law enforcement officers to possess prohibited semi-automatic
rifles. And, the panel affirms the district court’s conclusion
that the term “copies” as used by the FSA is not
unconstitutionally vague.

 The decision from the 4th Circuit was not unanimous and contains dissents, concurrences, and multiple parts. Indeed, the full decision is 90 pages long. Needless to say, it will take some time to read and digest this decision. That said, having the case sent back to the District Court to apply strict scrutiny to the Second Amendment claims is a definite win.

It will be interesting to see what legal legerdemain that Judge Catherine C. Blake will employ to assert that Maryland can still ban the most popular firearm in common use in America today even if strict scrutiny is applied.

UPDATE: Sebastian has more on this case at Shall Not Be Questioned. He is correct in saying that the ban on semi-auto rifles and standard capacity magazines still remains in place. The 4th Circuit didn’t find the law unconstitutional. It merely said that it needs to be reheard using the correct level of scrutiny. This is a win but not a complete win.

UPDATE II: Attorney Andrew Branca (Law of Self Defense) has his take on the case here.

UPDATE III: Gun rights scholar and attorney David Kopel examines the case in detail in the Washington Post’s Volokh Conspiracy blog. As he notes, the Second Amendment protections should extend to gun parts (magazines) and that strict scrutiny is appropriate in this case.

UPDATE IV: Dave Hardy weighs in on Kolbe. He makes note of the dissent and the response from Judge Traxler to it.

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Setting The Hook

December 15, 2015 by 4 Comments

Watching Rep. Trey Gowdy (R-SC) questioning a governmental official is a thing of beauty. It is like watching a master angler letting the fish nibble the bait and then suddenly setting the hook. The fish is hooked and wondering just what the heck just happened.

This past Thursday, the House Oversight and Government Reform Committee’s Subcommittee on National Security held a hearing on “Terrorism and the Visa Waiver Program”. The lead witness was Kelli Ann Burriesci, Deputy Assistant Secretary of the Department of Homeland Security. She heads the Screening Coordination Office. Part of her office’s job is to facilitate transfer of information from the FBI’s Terrorist Screening Database to the TSA’s No-Fly List.

The video below shows Gowdy questioning Burriesci. The first two minutes are setting the stage for Gowdy’s question where he sets the hook. That question is at 2:50 in the video. While excerpts of this questioning are out there, I think it is instructional to watch Gowdy’s questioning before he begins to set the hook.

Gowdy’s key question is “Let me ask you another question about the terrorism list, what process is afforded a U.S. citizen before they go on that list?”

Burriesci’s answer is that there is no process afforded a citizen before they are put on the list but only a process after they get on the list. This is just the answer Gowdy wanted and as a prosecutor in a prior life he knew he was going to get it.

It only gets better after that.

Gowdy’s point, of course, is that the denial of due process with regard to an enumerated right such as the Second Amendment is, by its very nature, unconstitutional.

Those who would use the No-Fly list, the Terror Watch List, or the FBI’s omnibus Terrorist Screening Database as the basis to deny a citizen’s rights under the Second Amendment – or any civil right for that matter – are playing a dangerous game. That many Democrats and gun prohibitionists are doing it to score political points makes it unconscionable.

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Joe Manchin Said He Supported The Second Amendment, Too

September 28, 2014 by 2 Comments

Democrats running for the US Senate from red states love to say they are for the Second Amendment.

Sen. Joe Manchin (D-WV) said he was for gun rights, boasted he was endorsed by the NRA, and even showed himself shooting a rifle at the “cap and trade” bill. That was in 2010. In 2013, he introduced a bill that would “only add gun checks to online sales and gun shows.” That was a myth among many other problems.

Sen. Kay Hagan (D-NC) said she supported the Second Amendment in 2008 when she won against a lackluster Liddy Dole in the Obama landslide. That didn’t stop her from voting for Manchin-
Toomey in 2013 along with gun prohibitionists like Barbara Boxer (D-CA), Chuck Schumer (D-NY), and the late Frank Lautenberg (D-NJ).

Now comes Kentucky Sec. of State Alison Lundergan Grimes who is running against Senate Minority Leader Mitch McConnell (R-KY). She said she disagrees with Obama on guns, coal, and the EPA. She even ran an ad showing herself at the skeet range. She even chides McConnell’s waving a Kentucky long rifle a’la Charlton Heston at the 2014 NRA Annual Meeting saying, “That’s not the way you hold a gun.”

Then she was a guest on the Kentucky Sports Radio show in which she said was for the Second Amendment but supported closing the mythical “gun show loophole.”

I’m sorry but if you say you support closing the non-existent “gun show loophole” (sic) then that means you support universal background checks. Answering a question about whether you’d support banning any guns by saying “I support the Second Amendment” is nothing more than obfuscation. You want to appear gun friendly but you are supporting exactly the same thing as Bloomberg, Watts, and the rest.

Mitch McConnell is not my favorite Republican. I think what he’s done to undercut the non-establishment wing of the Republican Party is stupid politics. However, I vote the Second Amendment and he supports gun rights. I am also well aware that we are but one Supreme Court justice away from seeing Heller and McDonald overturned. The only way to ensure Obama doesn’t get a chance to seat another Kagan or Sotomayor on the Supreme Court is with a Republican-majority Senate. If Grimes wins, that isn’t going to happen.

UPDATE: Alison Lundergan Grimes’ support for closing the non-existent gun show loophole gets a “hallelujah” from the Coalition to Stop Gun Violence (sic).

Can we get a “hallelujah”? Thank you Alison Lundergan Grimes, for good old fashioned common sense.

We were told growing up that we are known by our friends. If these are her friends, well…..

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Interesting Second Amendment Case Out Of Massachusetts

September 25, 2014 by 8 Comments

If you travel abroad to a foreign country you carry your US Passport with you to prove that you are an American citizen. You don’t carry your birth certificate nor, if you weren’t born in the United States, do you carry your Certificate of Naturalization. Every foreign country around the world recognizes a passport as evidence of citizenship yet the Boston Police Department would not recognize Phuong Ngo’s US Passport as evidence of his US citizenship when he applied for a License to Carry. They demanded a US birth certificate or a Certificate of Naturalization and only would accept only one of  those documents.

Mr. Phuong Ngo came to the United States as a child with his parents. In  2006 his father became a naturalized citizen of the United States. 8 U.S.C. § 1431 provides that a child born outside the United States automatically becomes a citizen if at least one parent is a US citizen by either birth or naturalization; that the child is under age 18; and that the child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence (i.e., not an undocumented or illegal alien). Mr. Ngo thus became a US citizen without having either a US birth certificate or a Certificate of Naturalization. Nonetheless, he is a US citizen or the Department of State would not have issued him a passport.

22 U.S.C. § 2705 states that during its period of validity a US Passport shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction.

Because of the intransigence of the Boston Police Department acting as the BPD Licensing Authority, Mr. Ngo and Commonwealth Second Amendment have filed suit in US District Court for the District of Massachusetts against Commissioner William Evans. They are seeking to have Boston’s requirements for a License to Carry to be declared unconstitutional, as applied and facially, on Second and Fourteenth Amendment grounds as well as on the Supremacy Clause of the Constitution. They are also seeking a Temporary Restraining Order and Preliminary Injunction enjoining the BPD Licensing Authority from refusing to accept Mr. Ngo’s US Passport as evidence of his US citizenship.

From Comm2A’s press release on the case:

NATICK, MA – On Monday September 22nd, Commonwealth Second Amendment (Comm2A) and an individual plaintiff filed suit in federal district court against Boston Police Commissioner William Evans seeking a temporary restraining order against the department’s policy of refusing to recognize valid US passports as proof of US Citizenship.


“I think most Americans would find it deeply offensive to learn that the police don’t consider a US passport evidence of citizenship,” said Comm2A President Brent Carlton. “Sadly this is no surprise from a Police Commissioner who believes no one in Boston ‘needs’ a rifle or a shotgun. The US Constitution that Commissioner Evans has sworn to uphold has a Bill of Rights, not a bill of needs. This is just one more tool that the Boston Police use to prevent the people of Boston from exercising a fundamental right.”


Despite federal law to the contrary, the department refuses to acknowledge that a valid US passport is proof of US citizenship. The Plaintiff attempted to apply for a ‘License to Carry’ on several occasions but was turned away by the Boston Police Department because he did not possess the requisite birth certificate or certificate of naturalization. Mr. Ngo became a US citizen as a minor child when his father became a citizen. Mr. Ngo does not possess nor is he able to obtain either a US birth certificate or certificate of naturalization. Mr. Ngo was repeatedly told that his valid US passport would not be accepted.


In refusing to acknowledge a valid US passport as evidence of citizenship, the complaint alleges that the Boston Police have trampled upon Mr. Ngo’s rights under the Second and Fourteenth Amendments to the Constitution, as well as violated the Supremacy Clause of Article IV of the US Constitution.


Plaintiffs are represented by attorneys Margarita Smirnova and J. Steven Foley.

Frankly, I don’t see that Boston has a leg to stand on but that certainly has NOT stopped anti-gun bureaucrats in the past.

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New Frontiers In The Second Amendment

March 6, 2014 by 3 Comments

I attended the Tennessee Law Review’s symposium entitled New Frontiers in the Second Amendment held this past Saturday. I plan to have a series of posts about the material posted in the various panels with links to the papers where possible.

It was a great way to spend part of a Saturday and my only disappointment about it is that the attendance wasn’t greater. I guesstimate that there were 35-40 people there in the morning and about 30-35 there in the afternoon. Most of the attendees were law students at the University of Tennessee.

In the meantime, the Tennessee Law Review has posted video of both the morning and afternoon sessions online. They can be found here.

The upcoming symposium issue can be ordered from the Tennessee Law Review. The cost will be $10 plus shipping (approximately $3) when published. Contact the TLR Business Manager Micki Fox at mfox2@utk.edu or call her at 865-974-4464. She’ll be happy to help you out.

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Tenn Law Review – New Frontiers In The Second Amendment

February 25, 2014 by

The Tennessee Law Review will be hosting a symposium on the Second Amendment this Saturday in Knoxville. The symposium will feature a number of Second Amendment scholars including Glenn Reynolds, Stephen Halbrook, and David Kopel. It will have three panels discussing state regulation, the Second Amendment in the “academy”, and the reach of the Second Amendment after Heller and McDonald.

The symposium will take place at the UT School of Law located at 1505 W. Cumberland Avenue in Knoxville. Free parking is available in the White Avenue parking lot. Entrance to the law school is from White Avenue.

The Tennessee Law Review will be publishing the papers presented in an upcoming issue of the Tennessee Law Review (81:3 Spring 2014).  The cost for this issue will be $10 plus postage and can be ordered from TLR.

If you live within driving distance, this sounds like a good way to spend a Saturday morning if you have an interest in Second Amendment scholarship. Oh, and did I mention that this symposium is free? Knoxville is right at a two hour drive for me and I’m going to do my damnedest to be there.

The schedule and list of speakers is below:

Tennessee
Law Review
New
Frontiers in the Second Amendment
Panel
Schedule—March 1, 2014
Time
Topic
Participants
9:15
Introduction
Cottone
and Reynolds*
9:30–10:30
State
Regulation and the Second Amendment
O’Shea*
and Halbrook*
10:30–11:30
The
Second Amendment in the Academy
Wolitz,*
Reynolds, Denning, Kopel, O’Shea, Pratt, and Blackman
11:30–12:45
Lunch
12:45–2:45
Defining
the Reach of Heller and McDonald: Second Amendment Penumbra
and First Amendment Corollaries
Kopel,*
Pratt,* Denning,* and Blackman*
* Indicates
article presentation
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Black History And The Second Amendment

February 8, 2014 by 3 Comments

This video featuring Craig DeLuz of Cal-FFL was posted on YouTube yesterday in honor of Black History Month. It is an excellent overview of the intertwined relationship that African-Americans have with the Second Amendment and gun rights. The overview ranges from before the Civil War to the modern civil rights era.

While not as comprehensive as Prof. Nicholas Johnson’s Negroes and the Gun, it does cover a lot of ground and is well worth watching.

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In Des Moines On Tuesday

September 15, 2013 by

If you live in Iowa or will be in the Des Moines area on Tuesday, Second Amendment scholar David Young will be giving a Constitution Day speech on the Second Amendment at Des Moines Area Community College, Ankeny Campus.

From David’s blog:

It is my understanding that there will be two speakers on this date. The first, Prof. Steffen Schmidt, a political science professor at Iowa State University, will speak at 10:30 AM in the auditorium in Building 6.

My one hour presentation will be outside the southeast facing main entrance of Building 5 on the DMACC Ankeny Campus at 11:30 AM, September 17, 2013. The presentation will emphasize Second Amendment historical development and why its purpose naturally has such an extensive impact on the current gun control controversy.

I have rarely given public presentations on this subject. My plan at Ankeny is to provide considerable time for questions and answers. For anyone interested in an eye-opening presentation on the Second Amendment’s purpose based on my most recent research into Founding Era sources, don’t miss this. Please let your friends and other interested parties know about the event.

More info and a link to a map can be found here.

I have both of David’s books and had a chance to chat with him at the Gun Rights Policy Conference held in Chicago in 2011. He is a nice guy who knows his topic. If I lived in Iowa, I’d be at that presentation.