Donald Trump May Say He Will ‘Weaken’ Gun Laws, But He Says Lots Of Things That Aren’t True.

The good news is that she didn’t cough during the debate – not once.  The better news is that he behaved like an asshole – so what else is new?  But I keep thinking that the reason the polls have narrowed is because voters who want to exercise what David Sedaris calls the ‘shit with glass bits’ option don’t really care how he behaves.  Trump’s supporters are much more forgiving of their candidate’s sins and omissions than HRC’s supporters are forgiving of hers.  And the media have followed suit.

nics           Yesterday Evan Osnos published a piece on Trump’s first 100 days, in which he imagined what Trump would do based on what he has said he would do during the campaign.  And what appears to be taking shape is the issuance of a pile of Executive Orders that would effectively erase Obama’s legacy, in particular orders to cancel Obama-care, renounce the greenhouse emissions agreement, block the arrival of more Syrian refugees, re-start the Keystone pipeline and loosen gun regulations by relaxing background checks.

I just took a look at Trump’s website and while it contains the usual nonsense about defending 2nd-Amendment ‘rights,’ the only mention of the NICS background-check system is that all relevant mental health and criminal records are loaded into the system and used to disqualify certain groups of people who shouldn’t be able to own guns.  But Evan Osnos wouldn’t have mentioned the possibility of ‘relaxing’ background checks if he hadn’t heard it from someone on the Trump team.  And the NRA hasn’t ponied up millions of dollars to run Trump ads if they didn’t expect to get something in return. So what might be the net effect on the background-check system if, God forbid, the shit with glass bits option is chosen by 50% plus 1 voter who cast Presidential ballots on November 8th?

In fact, where the whole issue of gun regulations – pro and con – will probably be met is in the identity of the person who would be nominated by Trump to replace Scalia on the Supreme Court.  And Trump has promised to appoint someone who will be a strong supporter of 2nd-Amendment ‘rights.’ But while the Court with a 5-4 majority opinion written by Scalia pronounced gun ownership to be a Constitutional ‘right’ in 2008, this same Court with Scalia sitting on the bench has been unwilling to weaken long-endowed gun regulations, in particular the FBI-NICS system of background checks.

In 2009 an ex-cop in Virginia named Bruce Abramski walked into a local gun shop and bought a Glock.  He claimed he was buying the gun for himself but in fact he was buying the gun for his uncle whom he then met at a Pennsylvania gun shop so that his uncle could take possession of the gun after going through a NICS-background check. Even though Abramski’s uncle passed the NICS check, Abramski lied when he bought the gun in Virginia claiming that he was buying it for himself.  Five years later after various appeals, Abramski’s conviction was upheld by the Supreme Court.

There are other challenges to current gun regulations floating around federal courts, in particular a decision that came out of Texas (Mance v. Lynch) and would, if upheld, allow dealers in one state to sell guns to residents of other states.  But while such a legal revision would make it easier for gun nuts like me to buy guns here, there and everywhere, I would still have to pass the FBI-NICS background check in order to get my hands on the gun.

Trump’s penchant for saying whatever pops into his head without regard for the slightest concern about the truth is not only a staple of the stump speech he delivers at his Klan rallies, but is also what his campaign will feed to anyone and everyone who might represent a potential vote.  Gun-sense Nation may be frustrated in their efforts to expand NICS checks to secondary sales, but the NICS as it currently operates isn’t going away.

 

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Does The 2nd Amendment Protect You? Not If You Don’t Own A Gun.

Having secured the right to own firearms without being required to do military service, Gun Nation is busily trying to widen the boundaries of the 2nd Amendment by claiming that ‘open carry’ is also a legal right.  Now let’s forget for a moment that the 2008 Heller decision specifically referred only to keeping a handgun within the home, even though most states also grant residents concealed-carry privileges with or without any special approval process, so for Gun Nation uncontested concealed-carry has also become an unquestioned ‘right.’  But in some states, Texas being the most newsworthy in this regard, gun ownership now also includes openly carrying guns which has become a further extension of gun ‘rights.’

2A              So the bottom line is that Gun Nation is pushing the idea that walking around with a gun would be no different than walking around with a droid.  Except it’s pretty hard to hurt yourself or anyone else with a cell phone, while it’s pretty easy to hurt yourself or someone else with a gun.  To which, of course, Gun Nation replies that: a) guns are important ‘tools’ for self-defense; and b) the 2nd Amendment gives us the Constitutional ‘right’ to own a gun. Incidentally, when I was in USRA, nobody ever referred to my M-1 rifle or my 1911 pistol as a ‘tool.’ Of all the ways that Gun Nation tries to disguise the fact that guns are simply a lethal product that do a lot more harm than good, the notion that all those armed citizens are protecting us with their ‘tools’ has to be the dumbest and most childish justification of all.  Anyway, back to Constitutional rights.

Even though I own more than 60 guns and would hate to see the day that I couldn’t own any more, I have never felt the slightest desire or concern to protect or even believe in the 2nd Amendment as some kind of Constitutional right.  Obviously it’s in the Bill of Rights, so my guns are protected by Constitutional stricture whether I like it or not.  But when the NRA tells me that the 2nd Amendment is my “first freedom,” when an amateur huckster like C.J. Gresham says that restricting open carry is an ‘infringement’ of his 2nd Amendment rights, I think it’s time to sit down and once and for all try to figure out what the 2nd Amendment really protects.

I’m not a Constitutional expert and I certainly wouldn’t presume to know more about the 2nd Amendment than what has been written by eminent jurists like the late Antonin Scalia or respected scholars like Stephen Halbrook, Sanford Levinson or Don Kates.  But when I look at the 2nd Amendment as an Article in the Bill of Rights, one thing jumps out at me which the gun debate seems to have overlooked, namely, that it is the only Article in the entire document that protects only a certain group of individuals, namely, people who decide to own guns. Every other Amendment guarantees protections to everyone, whether it’s speech, religion, assembly, due process, trial by jury or payment for private property that is taken for public use. But if I decide not to own a gun, and that decision happens to be shared by a majority of Americans, then the 2nd Amendment means nothing to me.

Which is why the claim by Gun Nation that the 2nd Amendment guarantees ‘our’ freedom is nothing but pure bunk. Which is also why the open-carry idiots who paraded around the SXSW festival in Texas were supporting nothing more than the right to act like jerks in public which, thanks to the 1st Amendment, is a Constitutional right we all enjoy.

If the pro-gun community wants to pretend that everyone derives a benefit from the 2nd Amendment, that’s all fine and well.  But the GVP community should make it clear that those 27 words and the guns those words protect have nothing to do with them at all.

 

Scalia’s Pro-Gun Views Didn’t Hurt The GVP Community At All.

Back in 2006 I happened to be a guest at a law school dinner, and before the dinner Antonin Scalia gave a talk. He later told me that it was ‘the same talk I give a hundred times a year,’ and then we all sat down for a meal.  At some point someone told him I was a gun dealer, and he jumped up, grabbed his plate of food, came running over to my table, pushed the guy next to me out of the way and sat down. For the next hour he talked animatedly about different guns, different calibers, was particularly interested in my thoughts about the differences between a 338 Winchester Magnum and a 300 Weatherby; I told him it didn’t matter since if he was more than 150 yards away he wouldn’t hit the mulie anyway. We went on and on.

It hardly came as a surprise that he authored the Heller opinion in 2008 because he was not only a certifiable gun nut, but was probably the only member of the Court who knew anything about guns.  In fact, if you read Steve Breyer’s dissent in Heller, you’ll discover that Breyer evidently doesn’t know a rifle from a musket, which when it comes to how much any of the other SCOTUS justices knows about guns, is probably about par for the course.

In the aftermath of the Heller and MacDonald decisions, Gun Nation has been diligently trying to get more gun cases before a right-leaning Court, and the possibility that Obama might appoint a liberal to the bench will no doubt be used by the NRA as the theme of their weekly pitch for dough.  The fact is (I really enjoy using the word ‘fact’ when I write about guns) that the SCOTUS has heard exactly one 2nd-Amendment case since 2008, a case in which the Court, in a majority opinion written by Justice Kagan, effectively upheld the entire ATF regulatory system as not infringing on 2nd-Amendment rights.  And just this past December, the Court declined to hear a case, Friedman v. City of Highland Park, in which a man sued because the town in which he lives won’t let him own an AR-15, a.k.a. an assault rifle, a.k.a. what we call a ‘black’ gun.

Just as I wasn’t surprised that Scalia wrote the Heller opinion, so I wasn’t surprised that he based the opinion not on history, not on precedent, but on simple common sense. Because when it came to guns, what Scalia knew and what other SCOTUS justices probably didn’t know, was that in the fifty years since the Court had previously handed down a 2-Amendment ruling (U.S. v. Miller), the United States had gone from a country in which most firearms were long guns owned for hunting to handguns owned for personal defense.  So when Scalia stated in Heller that keeping a loaded, unlocked handgun in the home had become an American ‘tradition,’ maybe the tradition was only thirty years old, but it had become standard lexicon for defining gun ownership nonetheless.

If you think that the Heller decision has unleashed a spate of 2nd-Amendment legal tests in the lower courts, just imagine what would have happened if Scalia and the SCOTUS had followed Miller and other precedents and declared that the 2nd Amendment didn’t protect private gun ownership at all.  Such a decision would have unleashed a torrent of gun laws at the local and state levels reflecting the second big change that has occurred and has now also become an American tradition when we talk about guns.

What I am referring to is what I call the GVP tradition, which has become, for the first time in my long lifetime, a grass-roots, broad-based effort to bring some sanity to America’s love affair with guns. The GVP movement is stronger and more sustained than anyone could have imagined just a few years ago, and it will continue to develop momentum regardless of who sits on the High Court.

 

 

 

They’ll Do It Every Time: CDC Gun Research Gets Defunded Again.

“Listen, the CDC is there to look at diseases that need to be dealt with to protect the public health. I’m sorry, but a gun is not a disease. And guns don’t kill people; people do. And when people use weapons in a horrible way, we should condemn the actions of the individual, not blame the action on some weapon. Listen, there are hundreds of millions of weapons in America. They’re there. And they’re going to be there. They’re protected under the Second Amendment.”

And who said that?  Not Wayne-o of the NRA, not that bunch from Doctors for Responsible Gun Ownership, and certainly not one of the five SCOTUS justices who decided back in 2008 that the 2nd Amendment gave Americans the Constitutional right to own guns.  It was, in fact, stated last Thursday by John Boehner, Speaker of the House, to explain why he and his colleagues voted against CDC-funded gun research for the thirty-eighth time since the CDC was first defunded back in 1998.

boehner                Now you can accuse John Boehner of lots of things, but being an expert on Constitutional law isn’t one of them.  So when he makes a comment about what the Constitution protects and doesn’t protect, at best you have to take it with a grain of salt, at worst there’s a good chance that he’s dead wrong.  In the case of what he said about the 2nd Amendment, it’s not so much that he’s right or wrong; it’s more that he’s just mouthing what he’s been told to say by whichever friendly NRA lobbyist told him to say it.  And in this respect he’s saying what he and his colleagues have been saying ever since the NRA decided to use the ‘guns don’t kill people’ slogan as an unofficial tag-line on bumper stickers and other promotions, even though the phrase has been floating around popular culture since nobody knows when.

I happen to be writing a book on the 2nd Amendment at the moment, so I have read Scalia’s majority opinion more times than I can count.  But in light of Boehner’s comment, I went back to the text once again, just to make sure that I hadn’t missed something or misunderstood what Scalia actually said.  Because the fact that the SCOTUS decided that guns are “protected” doesn’t explain exactly what the 2nd Amendment actually protects, and for that explanation we have to go back and refer to the 2008 Heller decision again. And here’s exactly what it says: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

Now it turns out that in 2013, the last year for which we have complete data according to the FBI, 281 Americans were justifiably killed by other Americans, of whom 223 were killed with guns.  Most of these killings occurred during the commission of another crime, usually but not always an assault. Which is exactly what the 2nd Amendment protects, namely, the justifiable use of a gun for self-defense. Now if someone would like to explain to me how the Constitution protects the 11,000 murders, 20,000 suicides and the 60,000 assaults that occur each year with guns, I’m all ears.

In 1980, only 11% of all motorists wore seatbelts, but by 2000 mandatory seatbelt laws probably saved upwards of 10,000 lives every year.  This remarkable change in driving habits and safety laws occurred because of safety research conducted by the CDC.  Did you ever hear the AAA say that “cars don’t kill people, people kill people?” Nobody would ever say something so stupid or dumb.  But John Boehner gets away with it every time he and his colleagues cave in to pressure from the NRA and vote to defund CDC research on guns.  Of course we all know that gun research is just a smokescreen for taking away all our guns.  Ever notice how CDC research got rid of all those cars?

 

 

Does Ted Cruz Understand The 2nd Amendment? The NY Times Says No; I Say Yes.

I never thought I would agree with anything that Ted Cruz says about guns, or anything that he says about anything else, for that matter.  But I have to admit that I entirely agree with a statement he made about the 2nd Amendment in a fundraising appeal that he sent out last week.  According to Daily Kos, the email quoted Cruz as saying that “the 2nd Amendment to the Constitution isn’t for just protecting hunting rights, and it’s not only to safeguard your right to target practice. It is a Constitutional right to protect your children, your family, your home, our lives, and to serve as the ultimate check against governmental tyranny — for the protection of liberty.”

As soon as this statement hit the internet, the usual scions of liberal respectability and proper discourse demonstrated their usual pique and concern, not the least a statement by the Editor of the New York Times Editorial Page, Andrew Rosenthal, who accused Cruz of promoting the “ridiculous” and “silly” idea that the 2nd Amendment was the handiwork of Framers who, according to Rosenthal, wanted to “encourage the idea of armed rebellion against the government.”  And this guy’s running for President?

cruz                I have something to tell the Editorial Board of The New York Times. The fact is that what Crazy Cruz said about the 2nd Amendment is not only true, it happens to be the foundation upon which the Supreme Court based the 2008 Heller decision which gave Americans the inalienable right to keep a gun in their homes for self-defense. The law which came before the SCOTUS basically said that a resident of the District could only keep a handgun in his domicile if it were locked at all times, thereby not allowing the gun’s owner to use it for self-defense.  Heller challenged this statute based on the idea that if he couldn’t use the weapon for self-defense within his domicile, then the 2nd Amendment right to private gun ownership was basically null and void.

What had always created confusion among jurists and scholars regarding the 2nd Amendment was the strange wording which divided the Amendment into two parts: the prefatory clause which says, “A well regulated Militia, being necessary to the security of a free State,” and the operative clause which continues, “the right of the people to keep and bear Arms, shall not be infringed.”  One side had always argued that the wording tied, indeed qualified private gun ownership to be a function of military service; the other side argued that owning a gun was a fundamental right that was not in any way dependent upon military service at all.  The 5-4 majority opinion in Heller written by Associate Justice Antonin Scalia, came down on the side of a private right.

If you read Scalia’s decision closely, however, it turns out that the idea of using guns for personal defense appears in many local statutes and legal commentaries contemporaneous with the drafting of the Bill of Rights.  It also turns out that there was considerable concern in the post-Revolutionary period about whether the national government should raise and support a standing army or whether the national defense should be left to citizen’s militias raised by the individual states.  But what comes out in reading the numerous sources cited by Scalia to justify gun ownership on the basis of self-defense is that, overwhelmingly, the notion of self-defense was considered first and foremost to be defense against government tyranny, not using a gun to shoot the thug who tries to break down your back door.

Not only is Cruz correct when he says that the folks who wrote the 2nd Amendment were looking for a way for citizens to protect themselves from governmental abuse; the writings and commentaries of the period bear him out.  The fact that Scalia took those writings and gave them a modern twist says a lot more about his agenda than whether Ted Cruz understands the Constitution or not.

Are Any Gun Control Measures Reasonable? I’m Not Sure The NRA Would Agree.

This is going to be a difficult column to write but it needs to be written.  So I’m going to ask all my friends on the gun-sense side of the aisle (my friends on the pro-gun side seem to be dwindling – gee, I wonder why?) to read what I write very carefully and don’t jump to the conclusion that Mike the Gun Guy has finally lost his mind.  He hasn’t, he’s just trying to respond to a very difficult issue that has come up of late.  And what I am referring to is the recent Pew poll which finds that, for the first time since the poll began in 1993, “there is more support for gun rights than gun control.”  I am quoting Pew.

As can be imagined, the poll results created lots of chatter on both sides.  The NRA immediately weighed in, claiming the poll showed that, “Americans of nearly every description are embracing the Second Amendment at historic levels, even as its opponents pour historic amounts of money and effort into suppressing it.” The Campaign to Stop Gun Violence and other groups, went online with a petition asking Pew to change the wording of their poll question because the current question “creates a false perception of gun safety advocates, who are not trying to ‘control gun ownership’ but rather want reasonable regulations that keep firearms out of the hands of dangerous people.”

gv                I have seen confidential marketing surveys conducted by more than one gun company which asks the same questions not just of telephone respondents, but focus groups, door-to-door surveys, the whole bit.  These studies are expensive, they are conducted with care, and the gun companies rely on this information (after all, they pay big bucks for it) more then they rely on public opinion polls from Pew, Gallup, or anyone else. And what these polls consistently show is that, by a margin of two-thirds over one-third, Americans support the idea of private gun ownership, but by the same margin support the idea that gun ownership should be subject to some kind of government control.  And this two-third, one-third breakdown appears in virtually every demographic, every geographic, every way in which the marketing companies slice and dice the information they receive.

So the argument gets down not to whether the government should control firearm ownership, but to what extent and to what degree these controls should exist.  And by the way, despite what all these 2nd-Amendment “absolutists” who are opposed to any government gun controls may say, no less a gun nut than Antonin Scalia gave the government explicit authority to “regulate” firearm commerce in the Heller decision of 2008.

I think it’s not such an easy task, indeed perhaps a very difficult task, to convince gun advocates that “reasonable regulations” to keep guns out of the wrong hands can be understood as something other than more “gun control” laws.  And what makes it very difficult is that the NRA and its allies have never positioned themselves as being against “reasonableness” of any sort; rather, they dodge this issue by claiming that even the most ‘reasonable’ gun regulation becomes a ‘slippery slope’ that leads to real gun control, i.e., confiscation of guns.  Whether it’s banning Saturday Night Specials, or hi-cap magazines or expanding background checks, they have used this argument to fight against every ‘reasonable’ gun-safety measure over the last twenty years.

I’m not so sure that the Pew poll is necessarily catching responses to the wrong question as much as it reflects the degree to which opposition to government regulation, any kind of regulation, is increasingly the watchword of a major chunk of the electorate, particularly the electorate that is painted a bright red. The problem for the gun-sense movement is not that reasonable gun regulations are a partisan issue in and of themselves, but they have become a part of a wider argument about the role of government in and of itself.

 

Book Review: Michael Waldman’s 2nd Amendment – A Biography

I started to read Michael Waldman’s book, The Second Amendment, A Biography, with a certain amount of trepidation, because if nothing else, here’s someone who hits the ground running when it comes to anything having to do with public policy. And whether its voting rights, or election financing reform, or same-sex marriage or just about any other domestic policy that liberals want to own, Waldman has been in the thick of the argument ever since he took over the Brennan Center in 2005.

Why trepidation?  Because although Waldman may have actually shot a rifle at least one time, let’s just say that he’s not much of a gun guy and his friends and policy associates don’t spend Friday afternoons popping some tops down at Franzey’s Bar & Grill.

Now don’t get me wrong.  You don’t have to be a gun guy to say something smart about guns.  But Waldman’s resume reads like the exact opposite of someone who would give gun owners a break, and let’s not forget that he runs a public policy institute named after a Supreme Court justice who probably would have been just as happy if the 2nd Amendment didn’t exist.  So I figured the book to be just another one of those “it’s time to defang the NRA” deals, with the usual elixir of anti-gun proposals like more background checks, another assault weapons ban and, for good measure, let’s get rid of all the damn things anyway.

scalia                I was wrong.  Leaving aside the early chapters on the how’s and why’s the 2nd Amendment even got into the Constitution, the book’s real strength is Waldman’s ability to tie the narrative of recent gun jurisprudence to the general rightward drift of American politics and American law.  I have been waiting for someone to explain how judges like Scalia defend the notion of 2nd Amendment ‘originalism’ in order to promote a conservative, current-day agenda and Waldman nails this one to the wall. Going back to the 1980’s, he charts the confluence of conservative energies represented by politicized evangelicals, right-wing think tanks and specific-interest groups like the NRA, all combining to support a judicial agenda that seeks to roil back or dilute progressive programs and reforms.

It’s not so much that gun control is at the top of the progressive agenda; it ebbs and flows as high-profile shootings come and go.  But a majority of gun owners, particularly people for whom guns are a serious part of their life-styles, tend to be politically conservative anyway, so using fears of gun restrictions to enlist them in the anti-liberal crusade works every time.

A close reading of sources from the debates over the Bill of Rights makes clear that individual gun ownership represented the ability of citizens to protect and defend their political rights; rights to free speech, free assembly, due process and the like.  But the argument for gun ownership advanced by the NRA today, Olliver North’s appeals to patriotism notwithstanding, is based on the alleged social value of guns to protect us against crime.  The NRA would never argue that the Glock in my pocket should be used to stop cops from coming through the door, but they insist that the same Glock is my first line of defense when a bad guy breaks down that same door.

Waldman clearly understands that by using the 2nd Amendment to justify gun ownership as a defense against crime, the pro-gun community has successfully restated the history of the 2nd Amendment to buttress a contemporary social justification for owning guns. Neither will be readily undone as long as gun control advocates believe they can respond to this strategy by stating and restating the “facts.”  Remember “it’s the economy, stupid?”  Now “it’s the guns.”

The NRA Loses Another One

There have been rumors floating around DC that some kind of gun-control legislation may come back to the Senate later this year.  And if this proves to be the case, it will probably involve another attempt to widen federal background checks to include private gun transactions, a move that was defeated in the gun control debate that broke out in 2013 after Sandy Hook. But a case was decided by the Supreme Court yesterday which, had the 5-4 vote gone the other way, might have made the whole background check system null and void.

Elena Kagan

Elena Kagan

I am referring to Abramski vs United States, which involved a Virginia resident, Bruce Abramski, who was convicted of committing a “straw” purchase of a Glock 19 because he answered ‘yes’ on the background check form 4473 when asked if the gun was being purchased for himself.  In fact, he purchased the gun for his uncle, a resident of Pennsylvania, who sent him the money because Abramski was able to pay a discount price for the gun at a store near his own home.  Abramski then took the gun to Pennsylvania, gave it to his uncle who gave him a receipt.  The receipt turned up in Abramski’s possession when his home was searched by police investigating an unrelated offense and it was this receipt that led to his ultimate conviction for lying on the 4473.

Abramski based his appeal on the idea that he had not committed a “straw” purchase because his uncle could have passed a background check had the uncle chosen to purchase the gun.  The statute covering the background check system, after all, was designed to keep guns out of the hands of people who could not pass a background check, which was not true in this case.  Abramski also contended that it really didn’t matter what he did with the gun, as long as he could pass a background check at the point of sale.

The Court majority, in an opinion written by Elena Kagan, found that Abramski’s entire argument rested on only one true fact, namely that he was able to pass a background check at the point of sale.  But to find in favor of Abramski’s larger argument, according to Kagan and the majority, “would undermine—indeed, for all important purposes, would virtually repeal—the gun law’s core provisions.”  In other words, this case really was about whether or not the government could regulate firearm transactions at all, not just about the behavior of a particular individual at the time he purchased a gun.

The minority dissent, written by Scalia, was very interesting insofar as it dealt with the entire issue only in the most narrow terms.  Rather than take on the larger question of whether the government has the right to regulate gun ownership, Scalia chose to argue about whether the 4473 (and the statute behind it) properly defined both the intent and the legal sanctions involved for making a false statement on the form.  And even though Abramski’s appeal was joined by 26 states and, of course, the NRA, there was little in Scalia’s dissent that could give them cause for hope.  I’m hardly surprised that Justice Scalia refused to challenge the government’s authority to regulate the ownership of small arms, because he acknowledged and approved such regulatory power in the Heller decision of 2008.

Last month the DC District Court upheld the District of Columbia’s tough gun registration law, aka Heller II.  And now the SCOTUS upholds the law that created the whole background check system as it was first developed in 1968.  On its own website, the NRA didn’t even bother to make a statement about the Abramski case, other than to link readers to a story about the decision in the, of all places, Washington Post!  I don’t know the extent to which Court decisions necessarily reflect the prevailing mood, but if a new gun control bill comes back to Congress later this year, I’m not quite ready to declare it dead.

Heller Versus District Of Columbia II: The NRA Loses A Big One

Ever since the Supreme Court decided in 2008 that the 2nd Amendment gave law-abiding Americans the right to keep a gun in the home for self-defense , the NRA had been racking up a very impressive series of legal wins in various courtrooms around the country, most recently a decision in California that struck down San Diego’s concealed-carry law as being an infringement of 2nd-Amendment rights.  But the music stopped playing last week when the Federal District Court in Washington D.C. upheld the city’s gun registration procedure which had been challenged by the self-same Dick Heller whose lawsuit became the basis for the historic 2nd Amendment decision in 2008.

Dick Heller

Dick Heller

Anyone who wants to own a gun in DC has to go through a pretty lengthy and cumbersome process, including a detailed background check, followed by a safety and proficiency course, and then is required to submit the actual gun to the police department for inspection and registration, the permit for which must then be renewed every three years.  Gun purchases are also rationed, i.e., nobody is permitted to purchase more than one handgun every thirty days.  There is no other political jurisdiction in the entire United States, including New York City with its infamous Sullivan Law, that mandates such a comprehensive registration procedure for all firearms, and it was the requirement that long guns be subject to background checks and inspections that, among other procedures, was challenged by Heller in his new lawsuit.

The District Court’s opinion runs more than 60 pages, based largely on testimony by, among others, the DC Police Chief Cathy Lanier, former ATF agents Mark Jones and Joseph Vince, and Dan Webster, who heads the Bloomberg Center for Gun Policy at Johns Hopkins University.  The plaintiffs produced testimony from Professor Gary Kleck, a long-time academic supporter of the NRA.  I don’t have space to go over every point that was argued in detail, but there was one basic issue that stood out and, not surprisingly, was omitted from a summary of the case posted by the NRA.

The NRA and other pro-gun organizations have consistently argued against any expansion of gun control measures because, according to them, such procedures make it more burdensome for law-abiding citizens to own guns while, on the other hand, criminals will always find a way to get around the law.  To quote the Plaintiffs: “Criminals circumvent the process by purchasing guns on the street and bypassing registration altogether.”  To which the District Court rejoined: “According to the Plaintiffs, municipalities should be limited to enacting only those firearms regulations that lawbreakers will obey – a curious argument that would render practically any guns laws unconstitutional.”

You got that one right, baby.  That’s what it’s all about.  The truth is that pro-gun activists don’t want any laws or regulations on firearms, regardless of the intent of the law.  On the other hand, it has to be said that most people who want more gun control would just as well see the 2nd Amendment go fly a kite.  As future gun litigation rumbles through the legal system, I hope that  jurists will be as candid and forthright as was Judge James Boasberg in speaking for the D.C. District Court, because in a debate that has been too clouded with overheated rhetoric and unsupported facts, it’s refreshing to read a legal opinion which clearly points out the basic issue separating the two sides.

They Finally Get A Chance To Carry A Concealed Weapon In California. Or Do They?

Back in February, the 9th Circuit in California ruled that the state’s concealed-carry law was unconstitutional, a ruling which was hailed by the NRA and other pro-gun groups as a “major victory” in the campaign to extend the 2nd-Amendment ownership rights defined in the 2008 Heller vs. DC decision to carrying a gun outside the home. But while the judicial panel’s initial decision was stayed pending appeal to the full 9th Circuit (whose action may then result in the SCOTUS finally deciding whether the 2nd Amendment extends to CCW,) the court let stand the part of the law which allows the sheriff in each California county to set concealed-carry rules. Most of California’s counties, including San Diego, which challenged the current law, have decided to wait and see how the whole legal issue plays itself out.  But Orange County began accepting CCW applications immediately after the 9th Circuit ruling and has been, according to County Sheriff Sandra Hutchens, “overwhelmed” with the demand.

Sheriff Sandra Hutchens

Sheriff Sandra Hutchens

Notwithstanding the fact that crime in Orange County has declined by 20% over the last ten years, it appears that most of the demand for concealed-carry permits is being driven by the conviction that walking around with a gun will make people feel more safe.  At least this is what the Orange County Sheriff says, and she should know since she has hired 15 part-time workers to handle the administrative load and the waiting time for the required interview that must precede issuance of the permit is now out to 30 months.

Wait a minute!  A “required” interview before the license is issued?  I thought that the 9th Circuit’s panel found California’s CCW law unconstitutional because it was only granted if an applicant could convince the police that carrying a concealed weapon was a necessity for business reasons or documented proof of the need for personal defense.  And when Orange County started accepting CCW applications, the Orange County Register stated that a permit would now be issued if a county resident simply stated that they needed to carry a gun for “personal safety,” without requiring any documentation of this claim at all.

So I decided to do what nobody ever seems to take the trouble to do whenever a law is passed regarding guns, namely, I actually read the text that defines the Orange County application process itself.  And the process is as follows.  In addition to the usual background check, fingerprints and let’s not forget the $200 fee, the applicant must also provide “documentation” that “good cause” exists for the license based on the following criteria: (1). “Specific evidence that there has been or is likely to be an attempt on the part of a second party to do great bodily harm to the applicant;” (2). “The nature of the business or occupation of the applicant is such that it is subject to high personal risk and/or criminal attack;” (3). “The occupation or business of the applicant is such that no means of protection, security of risk avoidance can mitigate the risk other than the carrying of a concealed firearm.”

There are a couple of more issuance criteria listed on the sheriff’s website but I think you get the point.  Sheriff Hutchens may say that she’s going to issue a license to everyone who says they want one, but Orange County is not about to deprive their law enforcement authorities from having the last word on who shall and who shall not walk around with a gun.  Which is hardly the same thing as saying that anyone who wants CCW will get it just by showing up at the police department with a clean background and a $200 check.

If the argument over whether the 2nd Amendment covers CCW ever gets to SCOTUS and if gun-nut Scalia writes another decision which cites the new California law as a valid protection of gun-ownership rights, the Brady Campaign and Shannon Watts will be able to arouse their followers over this NRA threat to safety, but the truth is that the law doesn’t really change things at all.  But what laws actually say never seems to concern either side in the gun debate. It’s a lot more fun to yell and scream than to sit down and figure out what, if anything, should really be done.