The 2nd Amendment Haa Nothing To Do With What Happened in Vegas.

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Thanks to our friend Shaun Dakin, all of a sudden I’m beginning to see pro-gun folks coming out of the woodwork to express their concerns about what happened in Vegas and isn’t staying in Vegas. And this is taking the form of some comments appearing here and there about how there really are some good, compassionate gun owners out there who shouldn’t be blamed just because some nut decided to set a new record for the number of people killed and wounded by one shooter using (we think but don’t actually know) one gun.

2A             The first story appeared on Medium, where a self-described libertarian who says he knows enough about guns “to do serious damage to a fundamental human right I hold dear.” We’ll get to how the writer defines this ‘fundamental human right’ in a minute, but he goes on to lament the fact that most people who advocate reducing gun violence damage their own arguments because they don’t know anything about guns.  He then goes on to list various examples of egregious errors made by the gun violence prevention (GVP) crowd, including the usual canard about how the GVP always wrongly defines an assault-style gun.  The writer ends up by saying that he would love to have a frank discussion about gun policy with the ‘other side,’ but first we need to learn the proper way to talk about guns.

Incidentally, this guy never gets around to explaining the fundamental ‘human right’ which he feels duty-bound to protect, but you don’t have to be a rocket scientist to figure out that he’s talking about something having to do with the 2nd Amendment, even though I always thought that the Bill of Rights enumerated certain Constitutional rights, which may or may not have anything to do with so-called human rights at all.

The second compassionate, pro-gun contribution by someone desperately trying to bridge the gap between Left and Right on the issues of guns was published in The Federalist, which has been promoting 2nd-Amendment ‘rights’ since before most of you were born. Like the blogger on Medium, this writer also hopes that we can have a “better conversation about guns and the Second Amendment in America,” which is shorthand for letting the GVP community know that it’s the other side which really understands why we all need to protect ourselves with guns.

The author of this piece wants us all to understand and appreciate the fact that someone can feel nothing but horror and despair about what happened in Vegas and yet still fervently believe that all law-abiding citizens should have access to guns. Forgetting for a moment that Stephen Paddock was as law-abiding as you can get, the writer wants us all to know that “a person can watch this, ache, hurt, and be profoundly affected by these events and not change his or her position on the Second Amendment.”

These banal attempts to ‘normalize’ support of the 2nd Amendment while at the same time attempting to join to co-op what appears to be a growing national concern about the destructiveness of firearms is nothing but pure, unadulterated crap. No matter how horrific the assault, no matter how many lives are lost or damaged beyond repair, you can count on even the most compassionate pro-gun advocates to remind us of their sacrosanct Constitutional ‘rights.’ Except there’s only one little problem. What they say and have been saying about the 2nd Amendment isn’t true.

When the Supreme Court reversed a long legal precedent by ruling in 2008 that private gun ownership was a Constitutional ‘right,’ there were already more than 300 million privately-owned guns floating around, none of which enjoyed any kind of Constitutional protection. And despite this failure to guarantee our God-given right to protecte ourselves, there has never been any law in any jurisdiction which stripped Americans of their ability to own a gun. So let’s cut out the nonsense and return the post-Vegas discussion to where it belongs, namely, what needs to be done to end gun violence once and for all.

 

Do Guns Win Elections? Not So Far This Year.

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Earlier this year a special election to fill the Montana House seat vacated by Ryan Zinke created something of a dilemma for gun violence prevention (GVP) advocates because the Democratic candidate, Rob Quist, ran a series of television ads using a rifle to destroy a likeness of his Republican opponent, Greg Gianforte, who was running ads stating that Quist was ‘soft’ on gun ‘rights.’ No surprise, the NRA endorsed Gianforte for the seat which he comfortably won, and the fact that Quist had earlier made a foolish remark about backing a ‘national’ gun registry (actually he didn’t know what he was talking about) may have contributed a bit to the margin of Gianforte’s win.

strange2             Until the gun issue reared its ugly head, liberals both within and without Montana had no trouble supporting Quist.  He was in favor of universal health care and expanding social security, both of which are standard talking-points for politicians on the Left. But in Montana being in favor of universal health care is one thing, being ‘against’ guns is something else. Montana has only slightly more than 1 million residents but I’ll bet you there are at least a couple of million guns kicking around in the trucks, barns and ‘family’ rooms of the Big Sky state. Guns are so normal in Montana that the issue is never discussed at all and would have remained unmentioned in this election if Quist had just kept his mouth shut instead of blurting out something stupid about gun registration as he was walking away from a campaign event.

Last week guns got back into electoral politics in a big way when Luther Strange, running for the Republican line in the upcoming Senate election against Ray Moore in Alabama, yanked out a handgun at a campaign rally to prove that he was ‘pro-gun.’ He was responding to a series of attack ads which accused him of being against 2nd-Amendment ‘rights even though he had earned the coveted NRA endorsement, along with the endorsement of YKW. If you have been following my blog you know that YKW refers to the individual who currently occupies a certain executive position in Washington, D.C.  So ol’ Luther gets up on the stage Monday night and pulls out a gun.  At least he had the good sense to keep his finger off the trigger while he waved the piece around.

Incidentally, it should be pointed out that the gun ol’ Luther was carrying was either a Smith & Wesson Model 36 or a Charter Arms Undercover, both of which only hold 5 rounds. Those are hardly the guns of choice any more when you can buy a Glock or a Kahr pistol which is smaller and has a capacity of 8 rounds. On the other hand, there’s a good possibility that Alabama will become a ‘constitutional carry’ state next year, which means that no matter whether your handgun holds 5 rounds, or 10 rounds or even 20 rounds, you’ll be able to walk around with it in Alabama without going through any kind of permit process at all.

But back to the election which took place last night. Regardless of his stance on guns, Luther Strange was handily defeated by Ray Moore who continues to cast himself as America’s public official most dedicated to ‘one nation under God’ which means, of course, that he’s a good guy when it comes to the issue of 2nd-Amendment ‘rights.’ Guns in Alabama are like guns in Montana, everybody has one (or two or three) and the idea that gun ownership could become a deciding issue in any political election is simply too far-fetched to be believed.

On the other hand, we now have gone through two electoral contests in two gun-rich states and when it comes to using guns as a way to garner votes, the ‘I love guns’ strategy is zero for two. So much for the idea that cozying up to the ‘gun vote’ can help you win.

The Supreme Court Isn’t Interested in Concealed-Carry, At Least Not Yet.

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There’s dancing in the GVP streets today because the Supreme Court refused to hear an appeal of Peruta v. California, which is the sine qua non of all legal cases covering what Gun-nut Nation calls ‘constitutional carry,’ i.e., the ‘right’ to carry a concealed gun outside the home.  Other than getting rid of the background check system altogether, this concealed-carry crap stands at the head of the wish-list for making America fully-armed. The case attracted more than 20 briefs and everybody who’s anybody in Gun-nut Nation submitted something about this case.

2A             What made Peruta so important for the promotion of gun ‘rights’ was the fact that California law grants concealed-carry issuing authorities, a.k.a., county sheriffs, determine an applicant’s qualification based not just on a background check, which is the policy in most states, but on the applicant’s ability to show proof that he would be in harm’s way unless he could walk around with a gun.  In other words, California still retains the ‘may issue’ approach to CCW with the emphasis on a very narrow definition of ‘may.’

I lived in South Carolina in the 1970s and the only way to get concealed-carry was to become a state constable, an appointment that came out of the Governor’s Office  based on a recommendation by the Chief of the State Police.  How did you get recommended by the Chief?  You knew the Chief.  And the system for granting CCW in South Carolina back in those days was typical of most states; as late as 1987, only six states gave out CCW on a shall-issue basis and 16 states had no CCW policy of any kind.  Other than the Communist northeast and California, every other state now has a shall-issue policy and 12 states don’t require any special licensing for CCW at all.

The problem, of course, is found in the 2008 Heller decision which reversed a long tradition of considering the 2nd Amendment to be operative only in connection with military service, and instead pronounced that Americans now had a Constitutional ‘right’ to own a gun. But the ‘right’ was limited in two ways: First, the case only granted Constitutional protection to the ownership of handguns, when Heller went back to Court and tried to get the same protection extended to his assault rifle, he was told to get lost. Second, the 2008 decision specifically protected handguns kept inside the home, in fact, there was no mention of carrying a gun outside the home at all.

In his dissent to the Court’s refusal to hear Peruta, Justice Thomas claims that the phrase ‘bear arms’ means that someone should be able to carry a gun on their person outside the home. And how does he justify this definition of 2nd-Amendment wording which, if correct, could be used to give constitutional protection to unlimited CCW?  He quotes Eugene Volokh’s UCLA Law Review article which, among other things, contains a remarkable defense of carrying guns into places which serve alcohol, which if not allowed places a ‘fairly substantial’ burden on the individual who wants to go into a saloon toting his gun.

The bottom line in the Thomas dissent, and the reason he relies so heavily on the idiotic propositions of Volokh, is because the Court’s refusal to hear the appeal of the 9th Circuit’s decision still leaves open the issue of whether the 2nd Amendment protects not just private ownership of guns, but the ability of private citizens to go outside their home with a weapon based simply on their qualification for gun ownership, rather than any specific need for self-defense.

You don’t have to read between the lines of the Scalia-Gorsuch dissent to know how they would vote if this issue were to come before the Court.  And even though the NRA’s pit bull in the Oval Office seems to have more on his mind than promoting gun issues, the national, concealed-carry bill is still alive and well. The fight to get constitutional protection for the nuttiness of concealed-carry isn’t finished, not by a long shot.

Will The World End If We Lose Our 2nd-Amendment Rights?

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A week after the Presidential election in 2008, I walked into a gun shop in Houston. The place was packed.  In particular, customers were lining up to buy assault rifles along with as much ammunition as they could carry out of the store. I walked up to one guy who was waiting in line to fill out the 4473 form and asked him what was going on. And he turned to me with a very serious look on his face and whispered, “Armageddon’s coming.”

 

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Ever notice how many products Glenn Beck peddles like freeze-dried food or gold bars which portend doom?  And we have long noticed that the gun industry has been selling fear as well as selling guns since old timers like me began to fade away and hunting became something of legend instead of a real-time activity.  Owning a gun is now a statement about the importance of self-defense in an age of terrorism, along with, of course, the standard bromide about 2nd-Amendment ‘rights.’

But there’s one other message which resonates among Gun-nut Nation, and it’s the idea that if you own a gun then you have something in common with every other gun owner, and if you don’t own a gun, then you’re not only sh*t out of luck, but you’re also on the outside looking in.  I’m a member of AAA but they never try to make me feel special just because I own a car. Ditto AARP, whose almost daily hearing-aid advertisements just remind me that I’m one of more than 46 million people age 65 or more. In fact, I didn’t even know that May was Senior Citizens Month.

But I do know that I am a member of a very special oppressed minority known as law-abiding gun owners who have to make sure that what makes us so special and so oppressed is the possibility that at any moment, my ‘right’ to own a gun could be taken away. And if you think that the purchase of more than 150 million guns under the Obama ‘regime,’ compared to 75 million during the previous eight years of the ‘decider’ was due to anything other than the fear that I might wake up one day and the gun wouldn’t be there, think again.  Because if sales levels continue for the second half of 2017 like they were in the first half, things will be back to where they were in 2007-2008.

Back last October, I was finishing up my weekly gun-safety class which is required in my state (MA) before you can apply for a license to own or carry a gun. And a well-dressed, professional woman came up to get her safety certificate and said, “Boy, I’m glad I could get into this class.” And when I asked her why she was so excited, she replied, and I am quoting her word for word, “Because Hillary’s probably going to win the election and then I won’t be able to buy a gun.”

How did such a crazy idea get into this woman’s head? I must admit that I simply don’t know because even though the NRA spent $30 million or more during the campaign to tell its members that Hillary would take away their guns, I simply do not believe that any normal adult could think such nonsense was true.

But you know what? That guy standing on the line in the Houston gun shop wasn’t grinning or laughing when he told me that he was willing to wait half an hour for the background check to be completed because he didn’t want to face the end of the world unarmed. He meant it, and if we want to do something reasonable to reduce gun violence, we’d better figure out how to get inside that guy’s brain. Because what’s in his brain is in the brains of lots of folks who own guns.

Do We Have A ‘Right” To Self-Defense? Not Unless The Government Says So.

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Show me a single statement from anyone in Gun-nut Nation who justifies gun ownership without invoking the ‘individual’ or ‘inalienable right’ to self-defense and I’ll send a hundred bucks to the charity of your choice. Why, do you ask, would I be so quick to give away some of my hard-earned money? Because the idea that we have a right to protect ourselves which goes beyond the 2nd Amendment has been a stock-in-trade of gun ownership long before Charlton Heston stood up at the NRA meeting in 2000 and dared anyone to take the plastic version of an old flintlock rifle out of his ‘cold, dead hands.’

heston             The idea that self-defense is a ‘natural’ right which exists outside the legal system is about as true as the idea that Charlton Heston’s real name was Charlton Heston.  In fact, his name was John Carter, but how could Hollywood let someone with such a prosaic moniker bring down the Ten Commandments? On the other hand, pro-gun advocates have always felt comfortable justifying their ownership of guns as a religious commandment, so if a name could be invented for the actor who received the most holy of all religious texts, why not invent a God-given reason to own a gun?

There’s only one little problem. You can cite this biblical text or that biblical text all you want, but the notion that we have a ‘right’ to defend ourselves isn’t found anywhere in the Constitution at all. And despite what you might glean from those narcissistic tweets which keep tumbling out of the Oval Office, we still have to abide by what the Constitution says, not what we think it says or hope it says. That’s it.

If you want to understand what the Constitution says and doesn’t say about self-defense, I suggest you read the superb article by Darrell Miller, “Self-Defense, Defense of Others, and the State, which was one of the papers presented last year at the Brennan Center Symposium on the 2nd Amendment and can be downloaded from the Duke Law Journal linked here. Miller points out that even though the Heller decision rested upon a ‘basic’ and ‘deeply rooted’ pre-Constitutional ‘right,’ in fact, the legal definition of this self-protection “has been heavily conditioned and constructed by the state.” Further, “the core self-defense right identified in Heller is not as indisputably individualistic, inalienable, and innate as is often assumed. Instead, the state’s role in this concept has been dominant throughout history.”

Miller’s argument creates a serious problem for Gun-nut Nation, because the last thing they want to admit or believe is that the government should be able to define self-defense, because if it can, this means the government can regulate what types of self-defensive behavior can be allowed, which means the government can regulate – oh my God – the use of guns.  And the whole point of promoting self-defense as some kind of ‘natural’ right is to remove gun regulations from the purview of the state, particularly if the state happens to be controlled by gun-grabbers like you know who.

Miller goes all the way back to the origins of common law following the Norman invasion in 1066 and shows that from then until now, the state, either the king or later the Parliament, was always involved in defining who could and couldn’t use self-defense as a justification for committing a capital crime. These definitions changed over time, but the state never withdrew from being the ultimate arbiter of how, when and why someone could engage in an act of self-defense.

Miller’s article is persuasive because it flows from a clear and balanced reading of legal opinions and texts. But when was the last time the pro-gun gang based anything it believes or promotes on a clear or balanced presentation of opinions or facts? With all due respect to the excellent work by Professor Miller and his colleagues who research and write about guns and law, I suspect that much of what they say never gets read by those who need to read it most.

 

Should 2nd Amendment ‘Rights’ Be Based on Facts Or Beliefs?

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The Brennan Center for Justice, part of the Law School at NYU, is named after the late SCOTUS Associate Justice William Brennan, who came from a family of Irish immigrants in New Jersey and ended up serving on the Court for more than thirty years. During that time, he authored 461 majority opinions, of which perhaps the most important, Baker v. Carr, established the principle of ‘one man, one vote.’  Brennan viewed government as the ‘great equalizer,’ and the Center which bears his name is particularly busy these days insofar as our current Chief Executive seems obsessed with tilting the balance in one particular way. And if you don’t know which way I’m talking about, I’m sorry to have bothered you and please go back to sleep.

2A             In 2016 the Brennan Center held a colloquium on the 2nd Amendment which has become a more significant element in the world of scholarly jurisprudence since the landmark Heller decision handed down in 2008.  The papers presented at that meeting have just been published online, and while I intend to discuss the entire collection at some point, several of the individual contributions deserve attention, the first being the paper authored by Eric Ruben, who happens to be a Brennan Fellow specializing in 2nd-Amendment scholarship and law. I should add that I was invited but did not attend the Brennan Center event.

Ruben’s paper is extremely important because it strikes at what is perhaps the major issue confronting gun law right now, i.e., the perceptions that individuals and communities hold about the social utility of guns; i.e., do guns protect or threaten public safety?  Because even though Heller says that Americans have a ‘right’ to own a gun, on what basis can government limit that right, for example, the way that government limits free speech? After all, speech isn’t protected if you yell ‘fire’ in a crowded theater, so why should owning a gun be Constitutionally guaranteed if it is perceived that a community’s safety is threatened by a resident of that community whose house contains a gun?

This issue was addressed by Ruben with reference to Friedman v. Highland Park, where the Chicago suburb of Highland banned AR-15 rifles and large-capacity magazines because the law would “increase the public’s sense of safety,” even if the odds of a mass shooting occurring in the town were little to none. Although the case was appealed, notwithstanding a dissent from Thomas and Scalia, certiorari was denied because the town government had an interest in the public feeling safer, even if there was no evidentiary proof that the gun ban would actually make the community a safer place.

Ruben discusses examples of 1st Amendment cases where laws regulating speech were based not on actual damages caused by what someone said but the perceptions about how government viewed a certain kind of speech. But as for the 2nd Amendment, Ruben notes that other than allowing the ownership of a handgun in the home, 2nd-Amendment rulings based on perceptions is a wide-open field. Which means that the issue of gun ‘risk’ could possibly be used as a criteria for determining whether gun regulations are consonant with 2nd-Amendment ‘rights.’

If you are concerned about reducing gun violence, the importance should not be understated regarding what Ruben has to say. Gun-nut Nation rests its entire strategy for weakening gun regulations on the idea that the risk from guns is mitigated because guns keep us ‘safe.’ Now in fact, there is absolutely no evidence which even hints that such an argument can be shown to have the slightest relationship to the truth. But here is where the perception issue as a rationale for regulation becomes somewhat sticky, because in a gun-owning community the residents might want their perceptions that guns keep them safe (as opposed to representing a risk) to be protected under statute as well. But if the issue ended up in Court, we might get a more evidence-based discussion than what we currently hear from the NRA.

Trump Goes To NRA And Gives ‘Em Squat.

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I just listened to the speech – again. If you don’t know what speech I’m talking about, then you haven’t been following the latest doings in Gun-nut Nation.  It’s the speech that Trump gave Friday at the NRA annual meeting, the first President to address the Gun-nut Nation faithful since Saint Ronald showed up in 1983.

trump5As speeches go, it was a fairly hum-drum and boring affair. I hate to say this, but when Trump exhorted his campaign audiences to ‘throw them the hell out,’ or ‘beat them up,’ or ‘put Hillary in jail,’ at least there was a certain amount of excitement and hoopla in the air. And he did on rare occasion show his old form, referring to Liz Warren as ‘Pocahontas’ and leading the audience in a brief ‘build the wall’ cheer. But I predicted last week that Trump would show up and just rattle on about how tough he was on crime, and that’s exactly what he did.

Trump spent the first 6 minutes cracking jokes about how nobody thought he could win; someone might tell his speechwriters that the election was six months ago and the line about how ‘everyone said I couldn’t get to 270 and they were right because I ended up at 306’ is getting a little stale. With great solemnity he then intoned that the ‘eight-year assault on the 2nd Amendment’ had come to an end, but then he veered back to a disjointed praising of the new Supreme Court justice and from the 12th minute to the 17th minute he told the audience everything else he was doing to protect us from illegal immigrants and crime.

At this point in the speech the audience was getting restive because the applause was beginning to fade, so for the next three minutes Trump babbled on and on about how he was going to build the wall. He then mentioned that a couple of Southern Governors were in the room along with Ted Cruz, and then at minute 23 he stopped short (I thought that maybe he was finally going to say something newsworthy) and said, again with great solemnity, “I will never, ever infringe on the right of the people to keep and bear arms.”  The next day the mainstream media reported that Trump said he would support gun ‘rights.’ This was the NRA. What was he supposed to say? That he wouldn’t support gun ‘rights?’

He then wrapped up by mumbling something about Paul Revere, the battle at Concord and a reminder that he will make America great again because his administration will bring back the idea that the ‘people can govern themselves.’  That’s what he calls Twitter?

He mentioned several times that Wayne-o and Chris Cox were doing a great job, he made reference to the NRA’s storied President, Charlton Heston, but he didn’t even pull out Heston’s epic applause line about how nobody would ever take a gun away from his ‘cold, dead hands.’ The kid who wrote Trump’s speech probably wasn’t even born when Heston first shouted those words.

The audience heard the word  ‘freedom’ again and again but at no time did they hear anything about the national, concealed-carry bill which is the NRA’s most cherished dream. There was no mention of ending ‘gun-free’ zones, another issue high on the NRA wish-list, which Trump claimed he would abolish on his first day on the job. He didn’t even talk about his son’s pet project to market gun silencers as some kind of medical device. The truth is that Trump came to the NRA meeting, talked for 28 minutes and didn’t say anything at all.

For all his talk about how much Trump ‘loves’ gun owners, his NRA speech didn’t give them squat. And I’m not saying that chickens won’t come home to roost at some point this year,but getting a big tax cut for himself and his friends is a lot more important to Trump than whether Colion Noir can go prancing around with his guns.

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