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

 

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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?

Who’s Worried About The 2nd Amendment? Not The Gun Guys I Know.

For most gun owners, there is scant interest in the debates about the 2nd Amendment which break out whenever a particularly senseless act of mass gun violence occurs. The latest discourse started off last week when retired Supreme Court Justice John Paul Stevens published an op-ed calling for a repeal of the entire amendment, as if such an idea has even the slightest chance of ever taking place. Thank you Justice Stevens for filling up some space in The New York Times criticizing the 2008 Heller decision by repeating much of what you said in your Heller dissent.

constitution             But now another voice has emerged in the form of Laurence Tribe, not just a Professor of Constitutional Law at Harvard, but the oracle whenever the Establishment feels that a constitutional legal issue needs to be to be explained to the unwashed, semi-literate masses like you and me. Professor Tribe takes issue with Stevens, noting that eliminating the 2nd Amendment would probably make it more difficult to pass specific gun regulations, noting further that the Heller decision already gives the government authority to ‘regulate’ gun sales.

Further, according to Professor Tribe, repealing the 2nd Amendment is a sideshow when the real problem is protecting our children from the carnage and the fears of carnage represented by events like Parkland and Sandy Hook. And what is the real problem says Professor Tribe? It’s the “addiction of lawmakers to the money of firearms manufacturers and other unimaginably wealthy funders.” So what he’s suggesting is not getting rid of the 2nd Amendment, but getting rid of the ability of gun companies and other ‘unimaginably wealthy funders’ to pay the costs of pro-gun, political campaigns.

And exactly what does Professor Tribe hope would happen if his solution to the problem of gun violence was actually invoked? Let me break the news to you gently, Professor Tribe, nothing would happen, nothing at all.

I bought my first, real gun in 1956 when I was 12 years old – bought it at a tag sale in Florida, thus engaging in my first ‘straw’ sale. Over the next 52 years, until 2008, I personally bought and sold 500 guns, at the rate of 10 guns a year isn’t such a big deal for a gun nut like me. During that same half-century, the arsenal of guns privately owned in this country probably grew by roughly 100 million guns, if not more.  Know how many of those millions of transactions were protected by some kind of constitutional shield? Not a single one.

I went to my first NRA show in 1980 held in a large auditorium in Philadelphia not far from Constitution Hall. I think Reagan came through and gave a quick speech because this was during his Presidential campaign, but I don’t recall that people walked away from the exhibits to listen to the Gipper, nor did anyone seem to care. It’s seductively easy to promote the idea that the reason we have so many guns around is because there’s this great, big conspiracy between the gun manufacturers, right-wing politicians, Conservatives with money and the NRA. But that’s not the reason why Americans own 300 million guns.

Last night I debated John Lott at Northern Michigan University in Marquette. We drew a pretty big crowd, perhaps half were local folks, many of whom came over from the nearby Upper Peninsula, which is about as strong a gun area as anywhere within the USA. I began by asking the gun-nuts in the audience to identify themselves, and a lot of older, white men raised their hands. They also smiled and laughed – they liked the idea that the guy who was about to lecture them on why we need more gun control also knew how to use the language they use among themselves.

If Professor Tribe believes for one second that these guys own guns because they want to be ‘free,’ – oops, I forgot. Professor Tribe’s a Constitutional scholar, but he doesn’t know anything about guns.

 

Khalil Spencer: The Gun War Is Joined.

I’ve said before that the firearms community should be involved in firearms violence prevention. Two reasons come to mind. One, we know more about firearms than the typical non-shooter. Two, we need to engage and try to reduce the harm out there while moderating the discussion. Unfortunately, the loudest voices are not always the most careful ones. While some of the gun violence prevention folks tend to suggest ideas that many gun owners loathe, the 2nd Amendment purists are typically the Party of No, regardless of the question.

spencer2As a result of the latest high school shooting in Florida, all Hell is breaking loose on the “gun prevention”, so to speak, side. An example is the Sunday editorial in the Santa Fe New Mexican, which pretty much threw everything the Editorial Board could think of at gun owners and then tossed the kitchen sink along for good measure. Given the blood-soaked circumstances, who can blame them? Among the suggestions are”…bans on assault weapons, limits on high-capacity magazines, better background checks and numerous other laws…an amendment to the state constitution removing the prohibition on local governments passing any gun restrictions, or even rewriting a provision upholding gun rights…” A law abiding citizen who has never raised a gun in anger might find himself or herself suddenly on the wrong side of the law simply by virtue of having bought a gun with a 12 rd magazine. Its not even about “common sense gun laws” but about retaliation for the NRA and GOP’s intransigence and, as many Progressives would like to do, make many if not most of today’s modern, high capacity semiauto guns (see below) scarce and inconvenient to own.

But protecting the 2A, and the state constitution’s analog, from emasculation should not have as a price tag more and more bullet-spattered schools, theatres, and churches. Something is going seriously wrong in the country and its not just one issue but as our Los Alamos Catholic priest said yesterday, a host of variables are responsible of which the firearm is the enabler, even if the culture is the ultimate culprit. As anyone who reads knows, we have always had guns. Lots of them. Actual household ownership rates are probably down even as sheer numbers have gone up (based on recent research). What’s changed?

When I was a teen, I legally carried a box of 22 Long Rifle ammo to school in my book bag as I was a member of the Rifle Club. One could mail order a rifle or walk into the local K Mart and see racks and racks of military surplus, “NRA-Fair-Good-Excellent” rifles that could be had for a few greenbacks. Indeed, these could be had without telling your life story to the FBI’s NICS system as these were pre-background check days.  Most of those surplus guns were purchased to be modified to be sporting and hunting rifles. We didn’t have endless mass shootings by me-too youths, or self-styled militias of the right and left parading under banners of intolerance. Its the culture that has changed, and in part, the kinds of guns flying off the shelves reflects the change in culture. Guns used to be primarily for sport and secondarily for guarding the hearth. Nowdays, Gun Culture 2.0, as Wake Forest Sociology Professor David Yamane calls it, is about self defense and even the shooting sports reflect that, i.e., NRA Precision Pistol has given way to International Defensive Pistol Association matches. The look and function of the guns follows the paradigm shift. Black rifles, high capacity or pocket pistols, and short barrelled shotguns with only a pistol grip to make them street legal replace Grandpa or Dad’s Model 70 Winchester or Smith and Wesson revolver.When you are planning for a personal defense moment, more bullets are better. My concern, articulated here before, is that Maslow’s Hammer has become, in part due to this paradigm-shift in gun culture, Maslow’s Handgun.

I think those of us who enjoy firearms need to hustle over to the Middle of the Road and help find some solutions. For the life of me, I don’t know why an immature nineteen year old with emotional problems should be able to walk out of a gun store with a weapon designed to control a battlefield, no questions, other than the innocuous NICS ones, asked. As I have said before, anyone old enough to get a driver’s license can drive. Not everyone is allowed to drive a Freightliner. If I want to drive a Freightliner, I owe it to society to show I can handle it safely.

As far as armed teachers and the like? Aside from the fact that teachers are underpaid as it is while not being asked to get into firefights with heavily armed terrorists, surprise matters. Pearl Harbor showed that its not enough to be armed. A school shooting is a surprise attack, and will succeed just as the Japanese naval air forces succeeded. Sure, someone can eventually shoot back to limit the damage but meanwhile, people are getting shot. More guns is not the answer. More sanity, perhaps, is.

Gun-nut Nation Gets Kicked In The Ass By Its Favorite Federal Court

If the Gun-nut community wanted a judicial decision about gun rights in their favor, they couldn’t have gone anywhere more likely to help them out than the 5th Circuit, which oversees the federal judiciary in Texas, Mississippi and Louisiana and is considered to be the most conservative Circuit Court in the United States. Not only was a gun case argued in front of this court, but the case had already been decided at the district level in favor of gun rights, it was now being appealed by the Department of Justice run by you-know-who, and all three judges who heard the case were appointed by either George H. W. Bush or his son.

constitution             The court not only decided against the gun-rights gang, they dashed the hopes of the gun-loving contingent to get rid of one of the legal issues which pisses off gun nuts more than just about anything else, namely, the prohibition against going across a state line to buy a gun. Actually, the prohibition against buying a pistol or revolver in a state other than where you live has been on the books since 1939, when the feds first required individuals engaged in the ‘business’ of selling guns to purchase a federal firearms license and keep records of their sales. The reason that inter-state handgun purchases required a transfer between dealers was because it was recognized that allowing handguns to be moved across state lines without any form of regulation made it easier for criminals to get their hands on guns.

What gun-rights advocates are claiming, however, is that the prohibition against buying a handgun in a state other than where someone resides is no longer necessary because every purchase from a gun dealer, no matter where he is located, requires a background check. Which means that if I had been convicted of a felony in my home state, the felony and the consequent prohibition on gun ownership would come up no matter where I tried to purchase a gun. In 2015 two gun-rights activists decided to test this law by going to Texas and attempting to buy a handgun. After the purchase was denied, they found a district court judge who decided that their 2nd-Amendment ‘rights’ had been violated; hence, the appeal and decision by the 5th Circuit, effectively standing the district court’s ruling on its head.

Not only did the 5th Circuit reaffirm the prohibition against non-resident handgun purchases, it went further and actually used one of Gun-nut Nation’s most cherished legal principles – strict scrutiny – to find the prohibition constitutionally sound. According to judicial rules, for a law to pass strict scrutiny muster it must be shown that the particular law is justified by a ‘compelling government interest,’ and must be written specifically to ‘serve that interest.’ Lawyers for Gun-nut Nation have frequently used the strict scrutiny argument to attack gun regulations (e.g., New York’s SAFE law’s regulation limiting gun magazines to 7 rounds or less) and they no doubt hoped to do the same thing here.

The 5th Circuit reviewed the discussions leading up to GCA68 which codified the inter-state prohibition and concluded that Congress decided there was every good reason to maintain and strengthen the prohibition because otherwise it would be easy for someone to circumvent the laws and regulations of their home state and hence increase the possibility that an out-of-state purchase would result in a crime gun. The opinion points out that a dealer in one state cannot possibly know the gun regulations which exist in other states (e.g., some states require 10-shot magazine capacities, other states do not) and such knowledge has nothing to do with whether a potential buyer can pass a background check.

The decision by the 5th Circuit is clear on one basic point: the government has a compelling interest to safeguard public safety and a gun even in the hands of a legally-qualified individual could still be a risk. This decision by a conservative court is both a victory for the gun-control movement and a victory for common sense.

A New And Different Book On The 2nd Amendment.

I hereby issue an invitation to Roxanne Dunbar-Ortiz, a radical activist and author who has just published a book about guns: Loaded – A Disarming History of the 2nd Amendment – to attend my gun safety course that is required in my state – Massachusetts – before someone can apply for a license to own or carry a gun. The reason I want Ms. Dunbar-Ortiz to visit my gun class is I think she might gain some fundamental correctives about why some but not all Americans are so invested in the ownership and use of guns.

loaded             The author’s thesis is that today’s gun culture grows out of an amalgam of racist ideologies and practices which justified gun ownership as a necessary adjunct to the settlement and exploitation of the wilderness with the consequent destruction of Native American communities, followed by the subjugation of the few surviving indigenous peoples as well as African-American slaves. Since this process could only be accomplished by armed force, the 2nd Amendment was inserted into the Constitution to give legal sanction for the emergence of a nation state ruled by white men. I think that’s what she’s trying to say.

The reason I would like Ms. Dunbar-Ortiz to come to my class is because she will spend some time with some folks who may decide to purchase and own a gun after they finish my safety course, which means going to the local police department, getting photographed and fingerprinted and having their backgrounds checked. Is there the slightest possibility that a single person in this class gives one rat’s damn about how the Wampanoag Indians got chased out of the Bay Colony in 1676 by a bunch of white men who wanted more land? That may sound like a pretty heartless thing to say, but such thoughts are the furthest from anyone’s mind.

Ms. Dunbar-Ortiz would like us to believe that current-day gun ‘culture’ isn’t just a figment of the gun industry’s fertile imagination to create the idea that guns are necessary to protect us from real or imagined harm.  In that respect she critiques the study by Pamela Haag (The Gunning of America) of how Winchester marketed its products noting that this work too narrowly construes the importance of the 2nd Amendment in justifying the conquest of Native American lands long before the Winchester Repeating Rifle helped ‘win’ the West. What Dunbar-Ortiz ignores is the fact that the tool which wiped out Native American society wasn’t the gun, it was the plow. Hence, the decision by Winchester to concoct a marketing scheme.

I am sure the students in my gun safety classes would respond politely to Roxanne Dunbar-Ortiz’s attempt to make the 2nd Amendment the deus ex machina for everything and anything having to do with guns. I also suspect they wouldn’t really understand anything she says. Because the truth is that folks who decide they need a gun to defend themselves aren’t going to spend one second thinking about whether the gun they buy and the Constitutional statute which protects that purchase has any historical or cultural meaning at all. They are going to buy a gun because they believe in some fashion or another that having a gun will protect them from crime.

I support gun ownership but I don’t support the idea that anyone should walk around armed just because they think it’s the thing to do. They need lots of training and they need to meet a government-mandated proficiency standard before they can walk around carrying a gun. And none of those requirements in any way limit or threaten so-called 2nd-Amendment ‘rights.’

I only wish that someone as experienced and knowledgeable as Roxanne Dunbar-Ortiz had written about the 2nd Amendment in a manner that would make her book accurate and relevant when it comes to the issues of safe gun use that gun-control advocates deal with every day.

As for the final sentence of her book about ‘you’ll never have justice on stolen land.’ How profound.