Second Amendment

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Insurrectionist Ideology?

January 13, 2011 by 3 Comments

Since it appears that the Coalition to Stop Gun Violence doesn’t want to be left out of the frenzy surrounding the Tucson shootings, they released this on Monday but with their own unique spin:

FOR IMMEDIATE RELEASE
January 10, 2011

MEDIA CONTACT:
Ladd Everitt, (202) 701-7171, leveritt@csgv.

STATEMENT OF CSGV ON TUCSON SHOOTING RAMPAGE

Washington, DC—Those of us at the Coalition to Stop Gun Violence are deeply dismayed at the horrific shooting rampage that occurred in Tucson this weekend. Our thoughts and prayers—and the thoughts and prayers of all our member organizations—are with the victims and survivors of this terrible tragedy. We hope for a full recovery for all of those who lie wounded today.

Sadly, Saturday’s tragedy was both predictable and inevitable. Insurrectionist rhetoric—which posits that the Second Amendment gives individuals the right to take violent action when they believe that our government has become “tyrannical”—was once confined to the dark corners of gun shows and the Internet. In today’s America, however, it has become a “mainstream” idea that is widely promoted by movement conservatives, high-profile media figures, and even elected officials and candidates. Tucson was not unique—since the conservative wing of the Supreme Court embraced the insurrectionist idea in the D.C. v. Heller decision in 2008, there have been numerous threats and acts of violence against government officials.
Additionally, America’s weak gun laws continue to allow individuals who are obviously deranged to legally purchase semiautomatic firearms with high-capacity ammunition magazines that hold more than 10 rounds. Jared Lee Loughner’s history of mental illness, substance abuse and violent threats was well-known to law enforcement, the U.S. Army and his educators at Pima Community College. None of this, however, was detected by an instant, computerized background check that takes just a few minutes and involves no actual investigation of the gun purchasers.

If we are to avoid future massacres, our elected officials must institute policies that prioritize public safety and human life over gun industry profits. And they must speak out in no uncertain terms against poisonous insurrectionist ideology that threatens the integrity of our democracy itself.

Insurrectionist ideology? I guess Josh Horwitz and Ladd Everitt don’t know much about history and prefer to live in their own Wonderful World. If they need some help learning history, I’d be glad to suggest some books such as the two books from David Young dealing with the origins of the Second Amendment and the founder’s intent in putting it in the Bill of Rights.

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Justice Breyer: “Get On A Subway And Go To Maryland”

December 12, 2010 by 3 Comments

Justice Stephen Breyer was on Fox News Sunday with Chris Wallace. They discussed the history and intent of the Second Amendment (and Breyer’s interpretation of it).

The money quote was when he said to Chris Wallace, “Are you a sportsman? Do you like to shoot pistols at targets? Well then get on the subway and go to Maryland. There is no problem!” This was in reference to Wallace noting that there is still an effective ban on handguns in the District of Columbia.

I just love how cavalier Justice Breyer appears in his discussion of the Second Amendment. There is no problem except that it is a fundamental right enshrined in the Bill of Rights. To have a sitting Associate Justice of the Supreme Court utterly dismissing my rights as an American just galls me to no end.

Lest we forget, Justice Breyer was Bill Clinton’s gift to American jurisprudence. While we don’t have to worry about any more Clinton appointments, we still must worry about Obama and any future appointments by him.

H/T Gateway Pundit

Update: Fox has posted a story on this interview. You can read it here. It will still make you mad. Cam Edwards says he intends to rebut it point by point on his show tomorrow.

Update II: Fox has posted the full interview. I have embedded it if you want to view it.

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Steinbeck on the Right to Keep and Bear Arms

October 25, 2010 by

John Steinbeck, winner of the Nobel Prize for Literature, was commissioned by the US Army Air Force to write a book called Bombs Away: The Story of a Bomber Team. It was a wartime report and a nonfiction account of his experiences with Air Force bomber crews during WWII. I picked up a copy of the book while out in California for the Gun Rights Policy Conference.

I came across this interesting paragraph which indicates the fight for the Second Amendment is nothing new:

And we may be thankful that frightened civil authorities and specific Ladies Clubs have not managed to eradicate from the country the tradition of the possession and use of firearms, that profound and almost instinctive tradition of Americans. For one does not really learn to shoot a rifle of a machine gun in a few weeks. Army gunnery instructors have thus described a perfect machine gunner: When he was six years old, his father gave him a .22 rifle and taught him to respect it as a dangerous weapon, and taught him to shoot it at a target. At nine, the boy ranged the hills and the woods, hunting squirrels, until the pointing of a rifle was as natural to him as the pointing of his finger. At twelve, the boy was given his first shotgun and taken duck hunting, quail hunting, and grouse hunting; and where, with the rifle, he had learned accuracy in pointing, he now learned the principle of leading a moving target, learned instinctively that you do not fire at the moving target, but ahead of it, and learned particularly that his gun is a deadly weapon, always to be respected and cared for. When such a boy enters the Air Force, he has the whole background of aerial gunnery in him before he starts, and he has only to learn the mechanism of a new weapon, for the principles of shooting down enemy airplanes are exactly those of shooting duck. Such a boy, with such a background, makes the ideal aerial gunner, and there are hundreds of thousands of them in America. Luckily for us, our tradition of bearing arms has not gone from the country, and the tradition is so deep and so dear to us that it is one of the most treasured parts of the Bill of Rights – the right of all Americans to bear arms, with the implication that they will know how to use them.

I just love that first line about “frightened civil authorities and specific Ladies Clubs”. I wonder if Steinbeck had a premonition about the Brady Campaign and their so-called Million Mom March.

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Ft. Hood Report Implementation Bears Watching

August 24, 2010 by 3 Comments

Thanks to CalGunLaws.com, we have the letter from Secretary of Defense Robert Gates along with the DoD Implementation of Recommendations for the Independent Review related to Ft. Hood that was sent to the upper echelon of the Department of Defense.

In the wake of the Ft. Hood shootings by Major Nidal Hasan, a blue ribbon panel was assembled to study the shootings and ways to prevent them in the future. They came back with a report entitled Protecting the Force: Lessons from Fort Hood. It examined everything from emergency response to mental health issues.

One of the recommendations had to do with private firearms owned by servicemen and women. It found that the Department of Defense did not have a policy governing privately owned weapons and recommended that the Department study the need for one. This was Recommendation 3.8.

The implementation document states with regard to Recommendation 3.8:

The Independent Review found that the Department does not have a policy governing Privately Owned Weapons. In the absence of such policy, the individual Services have established Privately Owned Weapons policies, which set minimum standards and task installation commanders to establish installation-specific requirements. These policies do not apply to personnel who live off installation.

  • TheUnder Secretary of Defense for Intelligence put into formal coordination a Secretary-issued Department-wide Interim Guidance Message. By early 2011, the interim guidance will be incorporated into a revision of DoD 5200.08-R (Physical Security Program).

In his transmittal letter, Secretary Gates said:

As the Department takes steps to strengthen its approach to force protection, I ask leaders and commanders across the force to remain mindful of the unique requirements of the profession of arms – that military service is grounded in an oath to support and protect our Constitution, but also may necessitate the sacrifice of some of the very rights we defend.

The two combined together leads me to ask which rights Secretary Gates thinks may be need to be sacrificed. Does he mean a right to privacy concerning medical and mental health records or does he mean the Second Amendment rights of those who serve our nation in its armed services? Whatever the case, it bears watching.

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Washington Times: Kagan’s Snowe Job on Gun Rights

July 29, 2010 by

The Washington Times had an editorial today on Senator Olympia Snowe’s (R-ME) support of Elena Kagan to be the newest Supreme Court Justice. She based part of her support for Kagan on the Second Amendment.

Snowe’s office sent out a press release announcing her support for Kagan that said, in part,

“Also, she has affirmed forcefully that adherence to Court precedent is a vital command for the Court. And in that light, in my view as a longtime, ardent supporter of Second Amendment rights, it was critical that General Kagan stated during her testimony that the precedents set by the Supreme Court in the Heller and McDonald cases – which upheld a personal right to possess a firearm — are ‘deeply rooted in this nation’s history and traditions’ and are ‘settled law;’ that she has ‘absolutely no reason to think that the court’s analysis was incorrect in any way;’ and, that she will apply these cases as law ‘going forward.’”

As the Washington Times notes, “We’ve been down this road before” with Justice Sonia Sotomayor and her contention that the Second Amendment was settled law.

Once the “wise Latina” donned the robes of her lifetime office, any pretense of upholding the individual’s right to bear arms was jettisoned. Ms. Sotomayor signed onto the gun rights dissent of Justice Stephen G. Breyer last month, which stated, “I can find nothing in the Second Amendment’s text, history or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.”

The editorial examines Kagan’s past statements regarding guns and the Second Amendment. They think her “new” statements were nothing more than a means to provide cover to “squishy” Republicans – or what the rest of the world would call RINO’s. The editors think Kagan will follow the same path as Sotomayor when, and if, Second Amendment cases reach the Supreme Court – lipservice now, knife in the back later.

They conclude that,

No senator, Democrat or Republican, can claim he supports gun ownership and then turn around and elevate someone to the nation’s highest court who will work to undermine the fundamental nature of the Second Amendment. A vote for Ms. Kagan is a vote for a nominee who will join with Justices Breyer and Sotomayor to scale back – and try to eliminate – the individual’s right to gun ownership.

Unfortunately, when it comes to the Senate’s confirmation of Elena Kagan, the old saying, “As Maine goes, so goes the Nation” is probably correct. A filibuster cannot stop her now.

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Shall Not Be Infringed

July 20, 2010 by

Professor Eugene Volokh of the Volokh Conspiracy blog, in response to a reader who says “The standard of review should be ‘SHALL NOT BE INFRINGED’”, has an interesting discussion on what the courts have said constitutes “infringement” as opposed to “reasonable regulation.”

Historically, the answer courts have generally given is that “reasonable regulations” of the right to bear arms aren’t infringements, while “prohibitions” are infringements. That of course just pushes the problem back to the question of what’s a reasonable regulation and what’s a prohibition (or an unreasonable regulation); and I think the courts have sometimes found gun restrictions to be “reasonable regulations” when they should have struck down the restrictions as excessively burdening — and therefore infringing — the right.

The question came up with regard to the Nordyke case. Is the government controlling access to government property an infringement or a reasonable regulation? Volokh thinks most courts will tend to say that the government can restrict access to government property and will classify it a reasonable regulation.

In general, with regard to gun rights, Volokh says:

But in any event, it seems unlikely that courts will take an absolutist view towards the right to bear arms, to the point that any regulation of any possession of any arms in any place will be seen as an “infringement.”

He ends by pointing readers to a 2009 article he wrote on the Second Amendment for the UCLA Law Review. The article is comprehensive (107 pages!).

I would also suggest reading the comments in the blog post as you have comments from Seond Amendment scholars such as Dave Hardy and David Young.

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Nevada State Parks Sued Over Gun Restrictions

July 19, 2010 by

In what by my count is the fifth post-McDonald complaint to be filed in Federal court, the Mountain States Legal Foundation filed a lawsuit in the US District Court for Nevada, Northern Division, last week over firearm restrictions in Nevada State Parks.

According to a story in the Las Vegas Sun, 

Nevada code bans possession of a firearm in state parks unless the firearm is unloaded and inside a vehicle, or the gun owner is carrying the weapon in conformity with a state concealed weapons permit, or the gun owner is hunting in an authorized area.

The plaintiff in the lawsuit is Al Baker, a resident of Boise, ID and a law student at the University of Idaho. Mr. Baker is a NRA-certified Home Firearms Safety and Basic Pistol Instructor as well as a Utah-certified Concealed Firearms Instructor. He holds concealed carry permits for the states of Idaho, Oregon, and Utah and is an avid outdoorsman. Unfortunately for Mr. Baker, the State of Nevada does not have concealed carry reciprocity with any of those states.

In April, Mr. Baker applied for a special use permit for a group campsite at the Wild Horse State Recreation Area north of Elko, NV. His application stated that he planned to possess a loaded firearm in his tent for self-protection. At the beginning of June, he got a response from the State Recreation Area.

“Mr. Baker has been advised that, if he brings a firearm for personal protection, he will be in violation of state law,” the legal foundation said.

“Nevada’s ban on firearms prohibits Mr. Baker from possessing a functional firearm when he is camping in Nevada state parks. He must leave his firearm in his car, unloaded at all times, even in the case of a self-defense emergency. If he were to discharge a firearm in self-defense, that action would also violate the ban. The penalty for violating the Nevada firearms ban is six months imprisonment, or a $1,000 fine, or both,” the foundation said.

The lawsuit, Baker v. Biaggi et al, seeks to enjoin the Nevada Department of Conservation and Natural Resources and the State Park System from enforcing the ban on “functional firearms”, i.e. a loaded gun, and the prohibition on defensive discharge of a firearm within the parks.

This lawsuit is unique in that it argues that a tent is a temporary residence and that the same Second Amendment right that protects the right to a firearm in a residence should apply here. If the Court accepts this argument, then the Second Amendment protections should also apply to stays in hotels, motels, and other lodging as well as a RV in a campground.

The regulation on possession of a firearm in state parks across the county is varied. States such as North Carolina totally forbid it. Other states such as Tennessee allow it with a concealed carry permit but still outlaw the discharge of a firearm. Then there are states have no restrictions on either.

Judge Edward Reed, Jr. has been assigned to this case. He was appointed to the Court by Jimmy Carter and has been in Senior Status since 1992. Given his age, at least 85, I’m surprised that it was assigned to him.

You can read the complaint below.

Baker v. Biaggi Et Al – Complaint  

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Another Critique of the Decsion in Skoien

July 14, 2010 by

Douglas Berman, the William B. Saxbe Designated Professor of Law at Ohio State, offers another critique of the decision in United States v. Skoien on his blog Sentencing Law and Policy.

Professor Berman says the opinion reinforces his belief that “Second Amendment jurisprudence is going to be very messy and very challenging in the months and years ahead” after the Heller and McDonald decisions. He then goes on to point out three areas in which the Skoien opinion by Chief Judge Easterbrook highlights this reality.

First, there is uncertainty about the standard of review. Should it be intermediate scrutiny, strict scrutiny, or what? The opinion cites Heller but then goes on say that they are not going to get into the scrutiny “quagmire.”

Skoien foreshadows a “quagmire” if (and when?) Second Amendment jurisprudence has to start sorting through levels of scrutiny, and its seeks to avoid this quagmire by positing that (any and all?) gun regulations are substantially related to an important governmental objective. But given that gun regulations are always aimed at improving public safety and that the creators of such regulations surely see their restrictions as substantially related to this goal, it is unclear how much more real bite is being given to a standard of review here in Skoien.

Second, the 7th Circuit is too ready to accept the government’s justification for gun control.

If preventing gun violence (i.e., “armed mayhem”) is always going to qualify as an important governmental objective, and if “logic and data” of the sort set out in Skoien is adequate to justify a very broad criminal prohibition on gun possession by a large class of persons, it seem very unlikely that many (or really any) partial gun bans will be struck down.

Finally, the 7th Circuit used questionable analogies to the First Amendment and sex offender registration in their opinion.

As the dissent notes, there are no categories of persons who are subject to criminal prosecution just for seeking to exercise a freedom to speak. (There are categories of speech not subject to constitutional protection, but this is analgous to arms like bazookas and bombs that I assume are categorically excluded from coverage by the Second Amendment.) Similarly questionable is the suggestion in Skoien that allowing registration and zoning rules for convicted sex offenders makes “generally proper” a categorical exclusion of certain misdemeanant from a fundamental right expressly protected by the Bill of Rights.

 Berman concludes by saying that while he found the opinion not convincing his goal was not to criticize the opinion but to point out how hard it will be for courts going forward “to sort through all the challenging constitutional issues implicated by modern gun restrictions and the new constitutional gun rights set out in Heller and McDonald.”

H/T to Instapundit who notes that he and Brannon Denning are writing a post-McDonald law review article. 

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Clogging the Courts?

July 2, 2010 by

From the Legal Community Against Violence:

LCAV anticipates a substantial increase in the volume of Second Amendment litigation already clogging the nation’s courts, despite the fact that most, if not all, state and local firearms laws do not prevent a law-abiding citizen from possessing a firearm in the home for self-defense, and thus, would satisfy the holdings in Heller and McDonald.

They have a strange view of civil rights if they think that free citizens seeking to uphold the protections afforded them through the Second and Fourteenth Amendments should be considered “clogging” the courts.