Gun Control in America: A Historic Guide on Major State Acts.

Original Content Posted at Ammo.com

The Second Amendment guarantees American citizens the right to bear arms, but both federaland state governments determine how citizens may legally exercise that right. And while both federal and state gun control laws regularly change, laws at the state level change more frequently and often without the media coverage that surrounds changes at the federal level.

ammo  This results in a constant challenge for gun owners to keep up with the latest state laws, especially for those who carry their weapons across state lines. Because while some states have more restrictions than others, state gun control policies across the country are diverse and can change quickly – too easily putting responsible gun owners on the wrong side of the law.

This guide is a timeline of major state gun control acts throughout the history of the United States – not only to help gun owners understand the state laws that have influenced our nation, but also to showcase how one state’s gun laws can set an example for others, creating a domino effect of gun control policy for the entire country.

Colonial America: Slavery Versus The Second Amendment

Pre-Constitution, the original Articles of Confederation established that “every State shall always keep up a well-regulated and disciplined militia.” The Bill of Rights’ Second Amendment holds that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” However, those rights were at that time granted specifically to white males.

Fear of slave and Native American uprisings prompted many colonial states to establish laws banning “free Mulattos, Negroes and Indians” from having firearms. By the antebellum period, southern states like South Carolina, Louisiana, Florida, Maryland, Georgia, North Carolina, Mississippi and even Delaware all had various laws denying guns to people of color and allowing search and seizure of weapons as well as punishment without trial. Crucial to all of this was the Supreme Court case Dred Scott v. Sanford.

Previously a slave, Dred Scott sued for freedom based on the fact that he’d lived in the free state of Illinois and a free area within the Louisiana Territory for a decade. When his suit was unsuccessful in Missouri, he appealed to the federal courts. The contention was whether “a free negro of the African race, whose ancestors were brought to this country and sold as slaves,” was a citizen with protections under the Constitution. The Supreme Court decision on Dred Scott v. Sanford in 1857 denied “a free negro of the African race” citizenship – a milestone its issuer cited as “the most momentous event that has ever occurred on this continent,” excluding the Declaration of Independence. In that moment, those denied citizenship were also excluded from any of the rights associated with it.

After The Civil War: The Postbellum Era, Emancipation, Reconstruction, and the Black Codes

While President Abraham Lincoln’s Emancipation Proclamation freed all slaves, President Andrew Johnson’s failing leadership brought with it all the struggles of the Reconstruction Era. Meanwhile, the Supreme Court Dred Scott decision still denied people of African descent citizenship.

Former Confederate states enacted Black Codes to define and restrict freedmen’s positions within society. Along with mandating legal responsibilities, land ownership rights, contract labor wages and harsh criminal laws, nearly all the Black Codes effectively and pointedly banned “persons of color” – anyone “with more than one-eighth Negro blood” – from possessing firearms. Mississippi, South Carolina, Louisiana, Florida, Maryland, Alabama, North Carolina, Texas and Tennessee all enacted Black Codes, attempting to maintain the status quo and deny weapons to people of color.

The 13th, 14th and 15th Amendments banned slavery, provided all citizens equal protection under the law and ensured voting rights for all citizens. The 14th Amendment was particularly important, as it defined citizenship as “all persons born or naturalized in the United States,” overturning the Dred Scott decision, establishing people of color as citizens and overriding state statutes denying them the right to possess firearms based on their heritage.

Jim Crow South: The Supreme Court Cedes Gun Control to the States

In the following decades, a second civil war ensued as freed slaves sought to embrace their citizenship and formed freedmen militias to protect black communities and maintain political footing. The Jim Crow South, however, was equally intent on keeping firearms out of the hands of black Americans. The Ku Klux Klan (KKK) was founded in 1866 as a “social club,” and the Knights of the White Camelia and the White Brotherhood quickly followed. These white supremacist groups swept the South, their foremost demand that freedmen surrender their firearms.

Despite attempts to pass a federal law making the specific seizure of firearms “without due process of law, by violence, intimidation, or threats” a felony, the language of the resulting Enforcement Acts was instead diluted to encompass obstructing civil rights, and the terror continued.

Tensions came to a head in 1873 in Louisiana, when armed white Democrats overpowered Republican freedmen militia at the Grant County Courthouse in what came to be known as the Colfax Massacre. Three whites died, but estimates indicate as many as 150 freedmen were killed – possibly more – most in the hours after they’d surrendered. Initially, three white men were prosecuted under the Enforcement Acts. But in 1876, the Supreme Court decision on the case – United States v. Kruikshank – dropped all charges, ruling that the power to protect citizens from private actions like those of the KKK resided with the states, not the federal government.

Southern states were quick to pass Saturday night special laws limiting handgun ownership through financial requirements that retained a racial bias. Tennessee had already enacted “An Act To Preserve the Peace and Prevent Homicide” in 1870, but simply reworked it for 1879’s “An Act to Prevent the Sale of Pistols.” It set the precedent by banning all handgun sales except expensive Army and Navy model handguns.

Arkansas followed in 1882 with an identical law, while in 1893, Alabama placed a heavy tax on handgun sales. In 1902, South Carolina limited handguns to law enforcement – often Klan members – while Mississippi followed a subtler path, requiring firearms dealers to maintain records available upon demand for handgun and handgun ammunition sales (with the intent to allow race-based confiscation). In 1907, Texas, like Alabama, decided to adopt a tax aimed at preventing both poor whites and blacks from being able to buy handguns.

Prohibition Era: Immigration, Organized Crime and Concealed Carry Laws

Concealed weapons of any kind have long been a controversial issue. As early as 1813, Kentucky law controlled concealed weapon carry, to include Bowie knives, sword canes and pocket pistols. Laws in Louisiana, Georgia and Tennessee, for example, also retained language to control “how arms may be borne.” In 1897, the Supreme Court case Robertson v. Baldwin determined that laws controlling concealed carry did not violate the Second Amendment, stating “the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.” Recently, the Ninth Circuit Court once again confirmed that ruling in Peruta v. County of San Diego.

The New York City of the early 1900s had no such laws, but was marked by European immigration, Tammany Hall, extensive organized crime and gun violence of all kinds. A newspaper article from the time cited the example of a grief-stricken Italian father fatally shooting the truck driver who’d accidentally run over his son. However, January 23, 1911, proved the tipping point when Fitzhugh Coyle Goldsborough used a concealed .32-caliber automatic pistol to assassinate novelist David Graham Phillips midday in Gramercy Park for an imagined slandering of his sister.

Supported by the Tammany Hall apparatus and effective August 31, 1911, the resulting Sullivan Act of 1911 mandated discretionary police-issued licenses to possess a handgun and made carrying an unlicensed concealed weapon a felony. While gun violence in fact escalated right into Prohibition, these two criteria formed the basis for many other states’ “may issue” gun laws requiring discretionary police-issued licenses to restrict gun ownership.

By 1987, only one state had unrestricted concealed carry – while eight were “shall issue,” 25 “may issue” and 16 “no issue.” In 2016, 10 states have unrestricted concealed carry, while 32 are “shall issue” and eight “may issue.” New York remains one of the few “may issue” states, and the Sullivan Act remains on the books as New York Penal Code Section 400.00 after more than a century.

Civil Rights Movement: The Black Panthers and Loaded Carry Laws

Ironically, the event that is ultimately credited as the cause of banned loaded carry took place in California without a single shot being fired. In 1960s America, civil rights issues were escalating. The assassinations of both Dr. Martin Luther King, Jr. and Malcolm X in 1965 left black communities fearful, and torn between peaceful resistance and self-defense “by whatever means necessary.” Abusive, racially motivated policing practices in Oakland, California, gave rise to the Black Panther Police Patrols and their mission to monitor and challenge that brutality. Since citizens were by law permitted open loaded carry of registered guns, the Black Panthers patrolled armed.

When a predominantly white jury ruled the police killing of Denzel Dowell a justifiable homicide, it was perhaps the last straw. The first issue of The Black Panther Black Community News Service on April 25, 1967, focused not only on the killing of Denzel Dowell, but also other police atrocities. It questioned how a previously injured Denzel could have fled a police officer who knew him well enough to call him by name, why he was shot 10 times, and why the newspaper announced the verdict two hours before the jury did. It also listed three other police murders of black men and two police-administered beatings of a black woman and a 14-year-old black girl.

Meanwhile, dubbed the Black Panther Bill, the Mulford Act sought to ban loaded carry specifically to end Black Panther armed patrols. However, on May 2, 1967, 30 Black Panthers – 24 men and six women armed with a written manifesto and loaded weapons – gathered on the California State Capitol steps and entered the building, their destination the General Assembly to protest the impending legislation. They were admitted only to the legislature’s official viewing area and then were asked to leave, but they left with their guns still loaded.

While the event remained nonviolent, cities across the nation were experiencing intense race riots. The California legislature fast-tracked the Mulford Act, and then-Governor Ronald Reagan signed it into law on July 28, 1967, as California Penal Codes 25850 and 142-181. It prohibited individuals from publicly carrying a loaded firearm on their person or in a vehicle in an incorporated city or other prohibited areas. The act authorized peace officers to examine any firearm to determine whether it was loaded and deemed any refusal to comply as probable cause for arrest. It also prohibited anyone but law enforcement from possessing loaded firearms or deadly weapons within the Capitol.

The Cold War and the Advent of “Assault Weapons”

The latter half of the 20th century brought with it global conflicts – Vietnam, Korea and Iraq – and assault rifles. The easily recognizable AK-47s, AR-15s and Uzis became the weapons of choice for military forces around the globe, their characteristics highly desirable to firearms enthusiasts.

While the guns take a lighter caliber bullet and typically fire with less range and power than a rifle, they offer valued traits like folding stocks, pistol and forward grips, large-capacity removable magazines and the capability of switching firing modes. With time, semi-automatic rifles have appeared as many different makes and models, often surprisingly affordable. Most notable is that with each ban and limitation, semi-automatic rifles become more popular.

The 1989 Stockton Massacre and California’s AWCA Response

Out of all the states, California is recognized as having the most restrictive gun laws. One of the primary catalysts was the Cleveland Elementary School shooting on January 17, 1989, during which Patrick Purdy used an AK-47 semi-automatic rifle to spray a playground full of children, killing five and wounding 32 before killing himself. Despite former weapons and robbery offenses, Purdy had easily bought the assault weapon in Sandy, Oregon, and brought it across state lines to the Stockton, California, schoolyard.

The Roberti-Roos Assault Weapons Control Act of 1989 (AWCA), effective January 1, 1990, was California’s response and the first assault weapons act. It ultimately defined assault weapons within three categories, banned any transfer of the listed prohibited assault weapons, and required registration of any already in possession by the end of 1992. Any weapons not registered by that date were to be surrendered to law enforcement.

The 1993 101 Massacre and California’s Firearms Safety Act

Despite the legislation, on July 1, 1993, Gian Luigi Ferri entered the law firm of Pettit & Martin on 101 California Street in San Francisco to avenge his alleged loss of $300,000 in a land deal. Armed with two 9mm semi-automatic machine pistols, a .45-caliber semi-automatic handgun and hundreds of rounds of ammunition, Ferri killed eight and injured six in a 16-minute rampage before killing himself.

While the event was the impetus for the 10-year Federal Assault Weapons Ban of 1994 to 2004, in California, the effects have lasted much longer. Seeking to end gun manufacturer workarounds like changing model numbers, the state amended the Roberti-Roos Act’s assault weapons categories in 1999 by banning the manufacture, import or sale of semi-automatic rifles or pistols with certain characteristics as well as the transfer of magazines able to hold more than 10 rounds of ammunition, effective January 1, 2000.

That same year, California limited handgun purchases to one during any 30-day period; Maryland, New Jersey and the District of Columbia have similar laws. It also passed the Aroner-Scott-Hayden Firearms Safety Act of 1999 to require child-safety locks on all guns, set handgun safety standards that dealers must meet, and repealed the immunity previously protecting gun manufacturers from victim lawsuits.

The 2012 Sandy Hook Massacre and New York’s SAFE Act

Reminiscent of the Columbine High School massacre in 1999, the Sandy Hook Elementary School shooting on December 14, 2012, in Newtown, Connecticut, appalled the nation as an armed gunman once again took out his rage on school children. Adam Lanza killed his mother at home and then fatally shot 20 children and six staff members at the school before killing himself. He was armed with his mother’s AR-15 Bushmaster semi-automatic rifle and two of her handguns – a Glock and a Sig Sauer.

On January 16, 2013, New York became the first U.S. state to act after the shooting when its legislature passed the Secure Ammunition and Firearms Enforcement (SAFE) Act. It required universal background checks for all firearms purchases, expanded its definitions of assault weapons, created a state database for handguns, and banned the sale or purchase of magazines that could hold more than seven rounds of ammunition.

On April 4, 2013, Connecticut and Maryland both enacted new restrictions to their existing gun laws: An Act Concerning Gun Violence Prevention and Children’s Safety and the Firearm Safety Act of 2013, respectively. Connecticut, too, required universal background checks for firearms purchases and banned magazines that could hold more than 10 rounds of ammunition. Maryland banned assault weapons and magazines that could hold more than 10 rounds of ammunition.

The 2012 Aurora Massacre and Colorado’s Response

On July 20, 2012, James Eagan Holmes fired into an Aurora, Colorado movie theater showing of The Dark Knight Rises premier, killing 12 and injuring 70 amid tear gas from grenades he’d launched. He was armed with a 12-gauge shotgun, a Smith & Wesson M&P15-22 semi-automatic rifle fitted with a 100-round magazine, and a .40-caliber Glock. Holmes had bought all three guns legally between May 22 and July 6, from three different firearms stores – two Gander Mountains and One Bass Pro Shop.

Following other states’ earlier actions, on March 20, 2013, Colorado Governor John Hickenlooper also signed into law three bills to prevent another mass shooting event. HB 13-1224 banned large-capacity magazines that can hold more than 15 rounds of ammunition. HB 13-1229 required universal background checks for all firearms sales, and HB 13-1228 directed that applicants pay for the cost of the checks.

2013: 10 New California Gun Control Laws

Also in 2013, California Governor Jerry Brown signed 10 more different firearms-related bills:

  • AB-500 Firearms: DOJ checks.
  • AB-48 Firearms: Large-capacity magazines.
  • SB-683 Firearms: Firearm safety certificate.
  • SB-140 Firearms: Prohibited persons.
  • AB-1131 Firearms: Mental conditions.
  • SB-127 Firearms: Mentally disordered persons.
  • AB-231 Firearms: Criminal storage.
  • SB-363 Firearms: Criminal storage: Unsafe handguns: Fees.
  • AB-170 Assault weapons and .50 BMG rifles.
  • AB-539 Firearm possession: Prohibitions: Transfer to licensed dealer.

These bills extended weapon transfer waiting periods, added storage safety conditions and strengthened storage negligence laws, banned conversion kits for large-capacity magazines, required safety certificates for long guns, extended mental health-related prohibitions for firearms from six months to five years, made assault weapon permits individual-issue only, and prohibited individuals denied firearms from storing them with dealers.

SB-140 also appropriated $24 million to the Department of Justice to address the backlog in the Prohibited Armed Persons File database tracking more than 20,000 individuals prohibited from owning firearms.

2016: California’s “Gunpocalypse”

As 2015 drew to a close and the holidays approached, the tragic San Bernardino shooting stunned California residents and the nation. Syed Rizwan Farook and Tashfeen Malik killed 14 people and injured 22 more at a Christmas party thrown by Farook’s employer at the Inland Regional Center on December 2.

Farook and Malik were armed with two .223-caliber semi-automatic rifles – a DPMS A-15 and a Smith & Wesson M&P15 – two 9mm semi-automatic pistols, at least four high-capacity magazines, well over a thousand rounds of ammunition and a pipe bomb. The incident ended with the homegrown terrorists’ sworn loyalty to ISIS’ leader Abu Bakr al-Baghdadi, a police vehicle chase, and a final shootout that left both perpetrators dead.

While Farook had legally purchased his handguns, another individual, Enrique Marquez, had purchased the rifles legally in 2011 and 2012, as Farook had reportedly feared he wouldn’t pass the background check needed for them.

The two rifles, however, were altered after the purchase in flat violation of California law: the Smith & Wesson for automatic fire and the DPMS to accept large-capacity magazines. Investigation of the couple’s home yielded a stockpile of another 4,500 rounds of ammunition, a dozen pipe bombs, and tools for making them.

Almost immediately, California assemblymen and senators introduced a packet of legislation. On July 1, 2016, California Governor Jerry Brown signed six new gun control bills into state law, each seeking to close a firearms loophole: Assembly Bills 1695, 1511 and 1135 as well as Senate Bills 880, 1446 and 1235.

AB 1695

AB 1695, also known as “The Stop Illegal Gun Sales Act,” was an effort to stop the practices of “straw purchasers” – individuals able to pass background checks who procure guns for ineligible individuals, then report the firearms as lost or stolen to avoid accountability.

California’s penal code already listed falsely reporting to a member of law enforcement as a misdemeanor or felony. However, the bill specifically makes falsely reporting a firearm as lost or stolen a misdemeanor and imposes a 10-year ban on firearm ownership for those convicted of the offense. Violation of the 10-year period carries up to $1,000 in fines and up to a year in prison.

AB 1511

While the vast majority of firearms loaned from one person to another must go through a licensed dealer under AB 1511, prior to this bill Californians could lend a firearm to individuals they knew personally for infrequent periods of less than 30 days. The new bill has the same loan period limitations, but it restricts the lending of firearms to “a spouse or registered domestic partner, or to a parent, child, sibling, grandparent, or grandchild” related by “consanguinity, adoption, or steprelation.”

SB 880 & AB 1135

California passed two bills, SB 880 and AB 1135, that are substantively the same with minor wording differences like “specified attributes” as opposed to “several specified attributes.” Essentially, the new law closes the bullet button loophole. First, it redefines a “fixed magazine” as “an ammunition feeding device” that “cannot be removed without disassembly of the firearm action.” Then, it extends the definition of assault weapons banned to any “semiautomatic centerfire rifle or a semiautomatic pistol that does not have a fixed magazine,” and has at least one of the previously established assault weapon attributes – such as a thumbhole stock for rifles or a second handgrip for handguns.

Much like previous legislation, the law prohibits the sale or transfer of assault weapons lacking a fixed magazine and mandates that all weapons already in possession up to and including December 31, 2016, must be registered with DOJ by January 1, 2018, for up to a $20 fee. Violation of the law is a felony punishable by up to one year in jail.

SB 1446

While the previous law prohibited the sale, gift or loan of large-capacity magazines, SB 1446 bans them altogether. Any manufacture, sale, transfer, gift or loan of a magazine able to hold more than 10 rounds is punishable by up to a year in jail. Possession of a large-capacity magazine entails a $100 fine for the first offense, $250 for the second and $500 for the third.

In addition, regardless of when the magazine was purchased, the owner cannot keep it in California. The magazine must be moved out of state, sold to a licensed dealer, destroyed or surrendered to law enforcement.

SB 1235

An interim and supersession measure prior to voter adoption of the Safety for All Act of 2016, SB 1235 is legislation to control all ammunition through an Automated Firearms System. Starting July 1, 2019, all sales and transfers of ammunition will be subject to checks of the purchaser’s presented identification against the Prohibited Armed Persons File as well as the Automated Firearms System, and must be reported to the Attorney General.

The legislation also requires, with some sporting club exceptions, a vendor license for all ammunition sales. Prior to this, controls – including mandatory face-to-face transactions – had been limited to handgun ammunition. However, handgun ammunition was changed to ammunition, and ammunition was redefined to be all-inclusive with “one or more loaded cartridges consisting of a primer case, propellant, and with one or more projectiles.” Any person or business who transfers ammunition to someone ineligible to receive it is subject to $1,000 in fines and up to a year in prison.

Vetoed Bills

Governor Brown did, however, veto four submitted bills:

  • AB 2607 would have expanded the pool of individuals able to petition for a gun violence restraining order.
  • AB 1674 would have applied the 30-day handgun delivery limit to all firearms.
  • AB 1673 would have redefined firearm as any “frame or receiver blank, casting, or machined body” clearly part of a functional weapon.
  • SB 894 would have tightened reporting regulations for lost or stolen firearms.

The Second Amendment Stands Strong

Since 2013, successful federal gun legislation has been limited to the renewal of the Undetectable Firearms Act, and states have taken note. While more restrictive states have continued to identify and attempt to close every loophole, many others have instead passed laws to strengthen the Second Amendment.

In 2015, the Law Center To Prevent Gun Violence tracked “1,323 bills related to firearms in the states.” Many of these laws related to hotbed social issues of today: domestic violence, background checks, guns in schools and on campuses, and concealed carry.

Domestic terrorism is another serious concern driving the debate about gun control. If history is any guide, attacks by “homegrown” terrorists will lead to stricter gun control measures as legislators try to calm the nation’s outrage and sense of vulnerability with more laws – despite terrorists already breaking existing laws.

The challenge for lawmakers at all levels is to ensure that rational wisdom prevails over emotion. We can close every loophole. We can regulate and litigate. But ultimately, unbalanced malcontents or violent terrorists may still win simply because they don’t play by any rules. And even the most well-intentioned laws may have unintended consequences.

Meanwhile, the Second Amendment, crafted by America’s Founding Fathers, stands quiet and powerful, with 27 simple words worthy of defining billions of others in our nation’s Supreme Court:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

 

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What The 2nd Amendment Means And Doesn’t Mean.

Yesterday this website carried an op-ed by one of our Contributing Editors, Greg Gibson, whose son was murdered on the campus of the college he was attending, a terrible story that became a book written by Gibson, Gone Boy, which has become something of a small classic in the literature about violence caused by guns. Greg has gone on to do some important gun-advocacy work, he also has a rather unique perspective on the issues of gun violence and gun control, and his comments about the 2nd Amendment created quite a storm on several Facebook pages where I posted what he wrote.

2A              Basically, Greg was defending the 2nd Amendment based on the assumption that the Framers didn’t intend to give gun rights to the kind of people who shouldn’t have guns:  criminals, nut-cases, or what Gibson refers to as “teenagers with still-developing brains.” Most of the comments about his piece came from activists who, for various reasons, don’t believe that gun owners should get any kind of Constitutional protection at all. Here was a typical comment that I received: “militia means a standing army not right wing nut jobs carrying assault rifles and terrorizing communities.”

The 2008 Heller decision, which said that Americans could keep a handgun in their home for self-defense, was decided by looking at the historic and legal precedents of two words: ‘keep’ and ‘bear,’ as in ‘to keep and bear arms.’ And even though many of the examples advanced on both sides of the SCOTUS debate were only marginally connected to the 2nd Amendment. Scalia was able to cobble together enough instances of early statutes and events to make his case.

What is most interesting about the Heller decision, however, is not what the majority and minority opinions say about the historical and legal meaning of the relevant text, but what isn’t said. And what isn’t said is any discussion about the word ‘arms,’ because Scalia dispensed of this issue in less than 100 words out of his 20,000-word opinion, by noting that Constitutional protection of private gun ownership only covers weapons that are commonly found in the home, and not “unusual” weapons like the kinds of weapons designed for use in war.

There’s only one little problem with Scalia’s formulation however, an argument that was unstintingly accepted by the minority opinions as well. The reason we suffer 125,000 gun injuries each year is because we give ourselves free access to these self-same weapons of war. Americans aren’t killed or wounded in large numbers by the millions of shotguns lying around in basements here and there. The 12 people killed in Chicago last weekend didn’t die because the shooters used several of the millions of hunting rifles manufactured by Remington, Winchester, Ruger or Savage Arms.

We suffer gun violence because legally or illegally, lots of our fellow citizens are walking around with handguns made by Glock, Smith & Wesson, Sig, Ruger, Colt, etc., all of which were designed and used as weapons of war. Gaston Glock designed his pistol for the Austrian army; his gun is now carried by armed forces worldwide, including the armed forces of the United States. Sig just landed the contract to supply their pistol to the U.S. Army, and celebrated this financial whirlwind by releasing 50,000 of the guns for civilian sale.

We are the only Western country which has decided that handguns, which are designed for only one purpose (to kill human beings) should be allowed to be purchased and owned with no greater degree of regulation than what we impose on someone who wants to buy and take a  shotgun into the woods.

The issue isn’t whether or not we should keep the 2nd Amendment. The real issue is whether the 2nd Amendment should protect the ownership of guns whose design and lethality has nothing to do with anything other than committing an act of violence in the extreme. You can be an Originalist all you want, but the Framers couldn’t have meant to enshrine murder as a Constitutional ‘right.’

 

Greg Gibson: Taking Back The 2nd Amendment.

The Second Amendment is truly remarkable. We alone among nations have, not only the unfettered right to keep and bear arms, but an access to guns that is unequaled by any other stable society in the world. This constitutional right bespeaks a deep faith in the civility, wisdom, and maturity of all Americans – a fundamental trust in the average citizen that is unparalleled anywhere else in the world.

2nd amendmentPeople talk about American exceptionalism, and we ARE exceptional as a nation, in part because of our right to keep and bear arms, and the ways in which this right has become a part of our heritage. It is more than a privilege, more than an custom. It is a unique and glorious right.

And look what we’ve done with it. Just open the paper, turn on the TV, take out your phone.

Guns falling into the hands of madmen, domestic abusers, and teenagers with still-developing brains. Guns to keep people safe from people with guns. Guns on night stands. Guns in pockets and purses. Guns in shopping malls, on college campuses. 300 million guns.

35,000 gun deaths a year. 125,000 injured. Hundreds of thousands suffering the grief, trauma, and displacement that trail in the wake of gun violence. Whole communities turned into vengeful, dysfunctional battlegrounds.

We should be ashamed of ourselves.

We’ve defiled this right. Through our own inaction and inattention we’ve let custody of the Second Amendment slide into the hands of ideologues, profiteers, and fear-mongerers, overseen by a cowardly Congress unable to act on the will of the people.

Don’t you think it’s time we reclaimed our Second Amendment?

Sensible people like you and me. Gun owners and non-gun owners. Red people. Blue people. Plain, unassuming, reasonable men and women, standing millions strong, facing down fanatics of every stripe.

We’re here for our Second Amendment, guys. We want our amendment back… NOW!

 

Does The 2nd Amendment Protect Carrying A Gun Outside The Home?

While my friends in the gun-control community continue to go ga-ga over something as silly and unimportant as plastic guns, a decision just came down from the 9th Circuit Federal Court which could have a much greater impact on the whole issue of gun violence and how America will and will not regulate guns.  I am referring to an appeal brought before the Court by a resident of Hawaii, George Young, who was denied an application both to openly a gun as well as to carry the same gun concealed.

glock1             Basically, what the Court said in a 2 – 1 opinion, was that the State of Hawaii couldn’t have it both ways. Either they had to let Young carry a weapon outside the home openly, or they had to let him carry his weapon concealed. But to deny him any ability to leave his home armed was to deny his 2nd-Amendment ‘rights.’ The Court found that Hawaii’s statute denying carrying of weapons except in cases of engaging in ‘protection of life and property’ was too vague and could not sustained under current 2nd-Amendment interpretations, up to and including the Heller decision rendered in 2008.

In fact, Scalia’s 2008 Heller opinion specifically avoided the issue of carrying a gun outside the home, because the D.C. law which Heller appealed only dealt with whether or not a resident of the District could keep a loaded, self-defense gun in the home. The relevant section in the 2nd Amendment is the phrase, ‘keep and bear arms,’ with decisions since 2008 coming down on both sides of this issue when deciding whether ‘keep’ and ‘bear’ refer to only inside the home or outside the home as well.

If you go back and read Scalia’s Heller opinion, what I find interesting is that virtually the entire 20,000-word text is devoted to historical and legal discussions about the words ‘keep’ and ‘bear.’  On the other hand, the word ‘arms’ is given very short shrift, Scalia dispensing with it altogether by noting that modern military weapons, like an M-16 rifle, could lie outside of 2nd-Amendment protection because such a gun isn’t commonly found in the home (page 54 et. seq.) In other words, for purposes of defining the types of weapons which fall under 2nd-Amendment ‘rights,’ Scalia is basically saying that a gun used by the military may, in fact, be what he calls a ‘dangerous and unusual’ weapon, which should not be owned by civilians at all.

If my friends in the gun-control community decide to appeal the 9th Circuit’s ruling, which I’m sure they will, and/or if the issue of 2nd Amendment protection for carrying a gun outside the home finally arrives at the doorstep of the Supreme Court, perhaps some consideration might be given to looking at the whole issue not from the point of view of prohibiting or regulating the behavior of people who own guns, but rather, in terms o the lethality of the guns themselves.

Because it just so happens that if we define a gun not in terms of whether it can be found in a gun-owner’s home, but rather in terms of whether the gun was designed for military use and is used by the military today, then all of a sudden, the whole question of what constitutes a gun whose existence in civilian hands is covered by the 2nd Amendment begins to change.

The fact is that the most popular handgun in America – Glock – was designed specifically as an army gun and is carried by troops in the field, including U.S. troops, all over the globe. Ditto the guns manufactured by Sig, whose M17 model just became the official sidearm of the Regular Army of the USA.  Ditto the Beretta M9, the list goes on and on.

The reason that other advanced countries don’t suffer our level of gun violence is because they recognize that arms designed for the military are too lethal to be in civilian hands. How come this issue never seems to be arise when my friends in the gun-control community decry the violence caused by guns?

 

Does Brett Kavanaugh Think Gun Laws Are Unconstitutional? Yes And No.

It’s now about 10:30 A.M. and I have already received at least a dozen emails from various gun-control groups warning me about the ‘threat’ posed by the nomination of Brett Kavanaugh to the SCOTUS and asking me to cough up some dough and help my friends in Gun-control Nation to keep this avowed 2nd-Amendment supporter off the high bench.

kavanaugh             You can argue of course that any judge nominated by #45 is going to be a supporter of gun ‘rights.’ Or at least he won’t be some flaming liberal who will decide every gun case the way Hillary Clinton would like to see it done. But leaving aside for the moment the histrionics which always accompany the process for filling a vacancy on the High Court, I’m going to take the argument about Kavanaugh’s approach to gun laws seriously and do the one thing which probably no advocate on either side has actually done; namely, to look at the single gun case in which Kavanaugh participated since he went to the Federal bench.

I’m talking about Heller II, a case which was brought against the refusal of DC’s municipal authorities to grant Heller and other residents the legal right to keep an AR-15 rifle in their homes.  Because even though it’s often forgotten or simply ignored, the 2008 Heller decision which reversed long-standing legal precedent and granted Constitutional protection for privately-owned guns applied only to handguns, and never conferred ownership ‘rights’ to long guns at all.

In 2010, to years after Heller I was decided, Gun-nut Nation went back into court and not only challenged the District’s actual process for granting legal access to guns, but asked that the requirement that now allowed District residents to own handguns apply to long guns as well. By a split, 2 – 1 decision, the Court told the District to rewrite its argument in support of the licensing process for all guns, but also upheld the District’s continued ban on the ownership of certain types of long guns, in particular the AR-15.

Now it happens to be literally true that Kavanaugh says the D.C. registration process and its ban on AR rifles are both ‘unconstitutional.’ But if you take the trouble to read his 46-page dissent, you will discover that this judgement isn’t based on his views about the 2nd Amendment per se, but rather, how he understands the 2008 Heller case. And frankly, I wish that more of my friends in both Gun-nut Nation and Gun-control Nation would stop indulging themselves in endless rhetorical nonsense about what the 2nd Amendment means.  Let me break it to you gently – it means whatever the last SCOTUS decision says it means, okay?

So Kavanaugh starts off by making this clear: He says, “Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.” But then he gets into trouble by saying that the District’s ban on AR rifles is ‘unconstitutional’ because “There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles.”

Oops. It sure didn’t take Kavanaugh long to invent some Constitutional rhetoric himself. The Heller decision focused only on handguns because the plaintiff, Dick Heller, appealed a law that only covered handgun ownership, a point explicitly made by Scalia In Heller I and echoed by the majority opinion in Heller II. If Kavanaugh decided to take it upon himself to discuss the issue of what kind of guns were covered by the phrase ‘keep and bear arms,’ that’s fine. But such a decision in no way automatically means that any and all types of guns had Constitutional protection just because the SCOTUS majority gave such protection to handguns in 2008.

I’m not trying to nitpick away the reasons why Kavanaugh may be or may not be pro-gun. What I am saying is that in considering his record to fill a seat on the Supreme Court he deserves to be taken at his word, and so far when it comes to guns, his word is mixed

 

Kennedy A Possible Swing Vote on Guns? That’s A Good One.

Since when did Justice Anthony Kennedy become such an important ‘swing’ vote on guns?  You would think that his demise on the Supreme Court was going to usher in a free-fall of regulations preventing at least a few nuts, child molesters and incorrigible bad guys from getting their hands on guns. At least this is how the narrative being promoted by Gun-control Nation seems to be playing out.

kennedy             The latest rallying-cry warning from Gun-control Nation about the pro-gun deluge was posted by Eric Segall, who teaches law at Georgia State University and has lately become a 2nd-Amendment expert from a liberal point of view: “Whether the issue is the validity of bans on so-called assault rifles, the length of waiting periods before people can buy guns or requirements for people to receive concealed-carry permits, our nation’s highest court may well start imposing its will on the gun measures of all 50 states and many cities and towns.”

Let’s give Segall some credit and admit that he’s hedging his bets somewhat by referring to Kennedy  as ‘uncertain’ when it came to how he swung on the issue of guns. But that cautionary statement has completely disappeared from the post-Kennedy narrative coming from the noisemakers employed by Gun-nut Nation, all of whom seem to believe that any replacement nominated by Trump to fill the vacant seat can only make matters worse when it comes to regulating guns.  Here’s an example from the Giffords Law Center that hit my Inbox last week: “An ideologically-motivated nominee, like several on the rumored shortlist, could negatively impact firearms policy at this critical moment for the gun safety movement—and for many years to come.”

Following the Court’s Heller and Macdonald rulings in 2008, which were gifts to Gun-nut Nation, the gift-givers including an Associate Justice named Kennedy, the only other SCOTUS vote that has been recorded on a gun regulation was the 2015 opinion denying certiorari for the 2013 AR-15 ban passed by the city of Highland Park.  Now let’s get one thing clear: the Highland Park law didn’t just say you couldn’t buy an AR, which is what the so-called New York and Connecticut AR ‘bans’ said.  The Highland Park ban is an all-or-nothing deal; in other words, if you want to own an AR-15, you can’t live in Highland Park.

This law is the most direct challenge to the whole nonsense about gun ‘rights’ peddled by Gun-nut Nation since 2008. It not only goes way beyond the assault weapons ban that ran from 1995 through 2004, but is much more comprehensive than the proposed AWB floating around Congress right now.

The Supreme Court refused to hear the appeal of Highland Park’s AWB by a vote of 7 – 2, with the two dissenting votes coming from Scalia and Thomas, the latter actually writing the dissenting opinion which said this: “Because the Second Amendment confers rights upon individual citizens—not state governments—it was doubly wrong for the Seventh Circuit to delegate to States and localities the power to decide which firearms people may possess.”

With all due respect to Professor Segall’s concerns about who will succeed Kennedy, here’s how the Supreme Court ‘imposed its will’ on state gun laws – it let a total and complete gun ban stand. And who were the three, not one ‘swing’ votes? Roberts and Alito also joined Kennedy and the four liberals in refusing to hear this case.

The only reason that anyone thinks that Gun-control Nation might have lost an important ‘swing’ vote on guns is because Kennedy authored the majority opinion in Obergefell v. Hodges which gave Constitutional protection to gay marriage in 2015.  And even though there are still plenty of folks who can’t believe that a SCOTUS with a 5-4 conservative majority would come out in favor of gay rights, Kennedy’s stance on this issue shouldn’t be taken as necessarily saying anything about how he felt about guns. All we do know is that he signed off on Heller, which as far as I’m concerned means good riddance to Kennedy, he deserves nothing more.

 

Is Kennedy’s Retirement A Win For The Gun-Rights Gang? I’m Not Sure.

Just when it looked like the storm that erupted after Parkland created the possibility of a shift towards more regulation of guns, the announcement was made today that Anthony Kennedy is retiring, which gives Draft-dodger Trump an opportunity to fill another SCOTUS seat. And since Trump has said again and again how much he wants everyone to be armed, or at least everyone who marches around with one of those ‘Don’t Tread on Me’ flags wrapped around their AR, he’ll probably nominate another pro-gun judge again.

kennedy              Not that Kennedy was such a staunch advocate for gun control. In fact, he was the 5th and necessary vote in the 2008 Heller decision which gave every God-fearing and law-abiding patriot the right to keep a loaded and unlocked handgun in their home. Note that when the city of Highland Park designated itself as being AR-rein, meaning that a town resident who owned an AR had to move somewhere else or sell the gun, Kennedy joined 6 other justices in refusing to hear an appeal of that case. So, the fact that Scalia was able to cobble together 4 other votes to dump the 1939 Miller precedent and detach handgun ownership from military service, doesn’t mean that a majority of the Court, even with a conservative replacement for Kennedy, would necessarily open the legal floodgates and let every cockamamie attempt to lessen gun regulations become a law.

On the other hand, Trump is such a jerk and a dope that for all we know, he’ll nominate Michael Cohen for the Court.  After all, I don’t think there’s anything in the Constitution which says that someone can’t be nominated who has been indicted, or convicted, or disbarred.  And when you stop and think about it, what better way could Trump demonstrate to his loyal, God-fearing base that he shares their complete hostility towards anything having to do with the practices and traditions of civil government or a government based on law?

Think I’m kidding?  I’m really not. And the reason I’m not kidding is that when you get right down to it, Gun-nut Nation’s increasing obsession with armed, self-defense, eliminating gun-free zones and teaching teachers how to use a gun resonates best with people who have decided that between gay marriage, LGBTQ rights, choice, and a few other loony, left-wing ideas like how vaccinations cause mental retardation, the best government is one that doesn’t exist at all.

And by the way, there are a lot of people out there who more or less share that point of view, or at least they take it seriously enough to believe that the only thing which stands between them and a complete breakdown of the social order is getting and keeping their hands on a gun.

Now I’m not saying that these folks represent a majority of Americans, nor do I believe that a New York Times reporter had his head anywhere other than up his you-know-what when he decided that the daily criticism of Trump was just making it easier for America’s Whiner in Chief to attend to the tasks at hand. In fact, without realizing it, Kennedy may have given the #resisttrump movement exactly the shot they need to show up in November and turn the Congress blue. After all, replacing Scalia with a like-minded jurist to keep the 5-4 conservative SCOTUS majority was a strong factor in bringing out the 2016 Republican vote. Why shouldn’t 2018 be a repeat in reverse?

Since the tragedy at Parkland, the gun violence prevention (GVP)  movement has certainly been out in front of the other side. Whether this energy could be sustained until November was a question in my mind, but the issue of replacing Kennedy could be exactly what the GVP needs. Because there is no issue which symbolizes the philosophical tilt of the Supreme Court more than the issue of gun ‘rights.’ Which puts our gun-control friends smack dab back in the center of the mid-term campaign. Which couldn’t happen to a more deserving bunch.

Can We Use The 2nd Amendment To Regulate Guns? We Sure Can.

Today our friends at The Trace are marking the 10th anniversary of the Heller decision with an interview about the impact of the decision with Eric Segall who teaches Constitutional law at Georgia State. The gist of the interview is that while the NRA scored a major victory by getting the Miller decision reversed, gun-control advocates could also breathe a sign of relief because Scalia’s opinion still gave government broad authority to regulate guns.  And since Heller, the ability of the government to maintain its regulatory authority has been challenged again and again, but the basic ability of public authorities to decide whether guns are a risk to community safety has remained intact.

2A            Segall’s incisive and accurate comments notwithstanding, the post-Heller gun ‘rights’ discussion always seems to avoid what I consider to be the most important issue embodied in the text of the 2nd Amendment itself. The relevant text says: ‘the right of the people to keep and bear arms shall not be infringed.” Scalia’s 20,000-word majority opinion spends 19,950 words on a textual, historical and legal analysis of the words ‘keep’ and ‘bear.’ But his concern about how to define the word ‘arms’ covers only 50 words and wasn’t even mentioned by the minority opinions filed by Stevens and Breyer in the case.

The reason that Scalia didn’t spend any time discussing the meaning of the word ‘arms’ was that he and his Supreme Court colleagues all agreed that the 2nd Amendment referred only to weapons that are in common use today, which means that what are referred to as ‘weapons of war,’ i.e., military guns, aren’t covered by anything having to do with the 2nd Amendment at all. This is all well and good except for one little problem entirely ignored by the Court, namely, that most of the civilian-owned guns which are currently used both for self-protection as well as for committing gun violence happen to have been designed for the military and are still used by military forces both here and abroad.

The most popular handgun sold in the United States is manufactured by Glock, which was designed for the Austrian Army, and is now carried by American troops in the field. The gun which replaced the U.S. Army’s historic sidearm, the Colt 45 pistol designed by John Browning in 1907, is the Beretta 92, which is also a favorite handgun sold to civilians throughout the United States. Last year the Army phased out the Beretta 92 and replaced it with the Sig P320; the manufacturer celebrated the award by immediately making and distributing to wholesalers and retailers 50,000 units of the exact, same gun.  And by the way, the Colt 1911 pistol, which was the Army’s official sidearm for more than 60 years, has also probably been the single, most popular handgun ever to get into the hands of all those gun nuts who now have Constitutional protection to keep any non-military handgun in their homes.

The bottom line is that there is nothing in the Heller decision preventing public authorities from banning just about every, popular handgun model based on what the Heller decision actually says and doesn’t say. The one time that a public authority actually banned the ownership of a military-style weapon because it was too lethal to be kept around, was when the town of Highland Park passed a ban on AR-15 rifles after Sandy Hook, a move now being considered in other Illinois communities as well. The Highland Park decision was appealed up the judicial ladder but was upheld at the Circuit level and the SCOTUS refused to intervene. Less-restrictive bans on AR rifles in CT and NY have also been upheld.

For all the talk about how the gun industry has been exempt from consumer product review and protected from torts, when the issue of regulation turns on the lethality of their products, the gun ‘rights’ gang hasn’t done very well. When our friends in the gun-control community sit down to plot their strategies, they should keep this in mind.

What The 2nd Amendment Means And Doesn’t Mean.

For all the talk about the ‘enshrinement’ of 2nd-Amendment ‘rights’ in the Heller decision, and the fact that America is truly exceptional because of free access to guns, our friends Eric Ruben and Joseph Blocher have just published a detailed article which shows that at both the Federal and state levels, precious little has changed since 2008. In fact, while there has been a plethora of litigation designed to test various local and state laws against what Ruben and Blocher refer to as the ‘sea-change’ of Heller, the success rate of these challenges has been less than 10%.

2A Most of the failures to use the 2nd Amendment’s gun ownership ‘right’ to cover all kinds of other gun ‘rights’ lies in the fact that Scalia’s decision made it absolutely clear that even though Americans now would be Constitutionally protected if they decided to keep a handgun in their home, this in no way constrains the government from regulating gun ownership, as long as the basic idea of personal ownership is not disturbed.

But even the fact that someone can own a gun doesn’t mean the government is unable to define the terms and conditions under which that gun will be owned.  Ruben and Blocher explore this issue in a deft and prescient way, the latter because their article clearly anticipates more 2nd Amendment litigation to come, this article thus becoming a convenient road map both for what has happened to Heller since 2008, as well as what may happen further down the road.

What I find interesting in all the post-Heller litigation and discussions is the extent to which the debate invariably turns on the meaning and application of the words ‘keep’ and ‘bear,’ while virtually no attention is paid at all to the word ‘arms.’ Somehow, a basic distinction made by Scalia in Heller between military arms on the one hand, and arms ‘in common use’ on the other, seems to have disappeared from view. And yet, understanding the role that these allegedly different types of weapons play in the gun violence which causes 125,000 deaths and injuries each year is, for me, the game that really counts.

Gun-nut Nation has spent God knows how much time, money and hot air defending the idea that all guns should be considered to be ‘in common use’ as long as they are not designed to fire in full-auto, which would make them military weapons obviously too lethal to be in civilian hands. They have even invented a new type of gun, the Modern Sporting Rifle, which may look like a weapon of war, but is allegedly no different from any other type of sporting gun that Grandpa carried into the woods. Now the fact that the M4 battle rifle can be set to fire in semi-auto mode; oh well, I guess when a trooper decides that the tactical situation requires that he shoot one round every time he pulls the trigger, obviously he’s now using a sporting gun. Yea, right.

Even though we are shocked and frightened by the mass shootings like Parkland and Las Vegas where the shooter used an AR-15, the reason we have gun violence is because of all those lovely handguns floating around. And believe it or not, most of those guns were first designed and manufactured for military use. Gaston Glock first got into gun manufacturing by making a pistol for the Austrian Army – the current Glock sold in every gun shop hasn’t changed one bit. Ditto the new Sig pistol that has just been adopted as the official U.S. military sidearm, the company celebrated this windfall by making and releasing 50,000 models for commercial sale.

We are the only country which makes no distinction between guns used by the military and guns kept in private homes, yet the difference is clearly acknowledged in the Heller decision, with the latter types considered worthy of Constitutional protection but the former not protected at all.

Want to end gun violence?  Take the 2nd Amendment and what Antonin Scalia said it really means.

 

Does Either Side In The Gun Violence Debate Know Anything About Guns?

Nothing has been as joyfully received by Gun-nut Nation than the surge of gun-control activism following the Parkland massacre event. Because there’s nothing like a healthy and noisy opposition to get people interested again in buying guns. I’m willing to bet that gun sales, which have been in the toilet since Draft Dodger Don took the oath, will probably start moving back up. And DDD has now agreed to show up at the NRA, which will provoke more outrage from the other side, leading to more interest in guns.

NRA show             Yesterday our friends at The Trace sent out their daily newsletter with a story about a pro-gun rally in Minnesota which may have drawn as many as 2,000 hardy souls, along with another rally of red-blooded patriots which ‘packed’ the Pennsylvania State House to celebrate the annual rally to ‘Protect Your Right to Keep and Bear Arms.’ These two events probably brought 5,000 freedom-loving Americans together to celebrate their ‘God-given gun rights’ but I doubt if these events would have drawn a fraction of those numbers were it not for the Parkland kids.

What I find most interesting in the increased attention being paid to gun violence is the degree to which both sides find it convenient to wrap their strategies and beliefs around ideas which have absolutely no basis in truth. Gun Nuts are an easy target in this respect, because some of them, particularly the ones who troll my Facebook page, really believe that owning a gun is a God-given ‘right.’ Now the fact that our legal system is based on a secular document drawn up by a bunch of lawyers who spent a hot summer in Philadelphia, doesn’t mean that what these proponents of gun ‘rights’ either say or believe should ever be tested against what happens to be true.

But when it comes to arguing about guns, don’t make the mistake of thinking that stupidity only comes from the pro-gun crowd. Because there’s plenty of stupidity and dumbness on the gun violence prevention (GVP) side as well, a recent column on the Vox website easily making the grade. The Vox piece cites an article which recently appeared in the New England Journal of Medicine in which the first sentence says, “Despite the high rates of unintentional firearm injuries…” and then cites three articles which don’t say anything about whether gun accident rates are high or not. The articles just say that gun injuries occur in homes which contain guns. Wow! What a remarkable finding; i.e., you need to own a gun in order to get injured when it goes off.

The NEJM article which found a reduction in gun accidents during NRA shows went all through the GVP media mélange like a horse let out to eat in a field where the grass was just cut. I mean, it tore through the GVP world and now is tearing through it again because the NRA show is coming right up.

The authors claim they used a “beneficiary-level multivariable linear regression of firearm injury,” which is short-hand for telling all you boobs out there that this is really an evidence-based piece of work.  It is so evidence-based that the authors didn’t even stop to ask why the NRA show happens to be scheduled every year at roughly the same time, and how this scheduling might play a role in how and when gun accidents occur.

The NRA show, which is usually but not always located in a Southern state, and draws most of its attendees from the South, just happens to be scheduled when hunting seasons in all Southern states have come to an end and just before folks start thinking about the beach. Guns don’t compete with the beach. And hunting accidents always go down just before and after hunting season comes to an end.

For all their hifalutin jargon, these public health researchers concocted a study examining a certain type of behavior about which they know nothing, not the slightest bit. But that didn’t stop Vox from taking this nonsense and making it a ‘must read’ for the gun-control side.  After all, why let facts get in the way of opinions, right?