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

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.

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The NRA Finds A New Target For All Those ‘Good Guys’ With Guns.

Except for the animals or anyone who is out there with Dick Cheney, hunting tends to be a very safe sport. In fact, according to the Consumer Products Safety Commission, the odds of being injured while skateboarding or riding a bike are four times greater than getting hurt while you are out in the woods scoping out Bambi, or freezing your rear end off in some blind trying to bring down a high-flying duck.

botha             Which is why it came as something of a shock and surprise to read about the accidental death of Theunis Botha, a South African who is acknowledged as having been one of the premier big-game hunters anywhere in the world.  His website contains testimonials from satisfied clients in the USA, Europe, Latin America and elsewhere, and he led hundreds of big-game safaris throughout Southern Africa beginning in 1983 and ending in Zimbabwe last week.

What happened evidently was that Botha and his hunting party came upon a group of breeding elephants in a national game preserve and several of the cows turned and charged. Botha got off a shot at one of the animals but then a cow attacked him from the side, lifted him with her trunk and then fell on him after the cow was shot by another member of the group.

One of the rules that big-game hunters follow is to always have multiple shooters looking at the target animal because there’s a likely chance that the shooter will be attacked by the target even if the creature has sustained what would eventually be a lethal wound. Which is exactly what happened in this case because Botha had another hunter at his back but who would have ever imagined that he could be hurt because the wounded animal then fell over on him?  What a crazy way for an otherwise ‘normal’ life to come to an end.

What I find interesting about this story is not how and why Theunis Botha was killed. Rather, it brought to my mind the new hunting message going out to Gun-nut Nation courtesy of the NRA.  The video begins with the following statement: “It is the dream of the animal-rights fanatics to suppress your most natural connection to the earth. These fantasies are the poisonous, perverted manipulations of social misfits who would take this planet hostage.”

Incidentally, the video contains some of the most remarkable scenic views I have ever seen on any digital platform and was obviously produced at great expense. Another one of the NRA videos contains a brief excerpt from a speech given by the animal-rights philosopher, Tom Regan, who borrowed Martin Luther King’s ‘free at last’ shout-out to describe a world in which animals are given the same rights to free existence as we grant each other. This video makes the tongue-in-cheek point that campaigns for animal ‘rights’ often align with other movements in support of ‘downtrodden’ groups, like gays.

Increasingly, it seems to me that the NRA has decided to present itself not just as an organization that promotes gun ownership, but as an arbiter of the social and cultural values which they believe should define the American way of life. Is this because they need to create new digital media content simply because online media materials quickly become so stale? Or do they really believe that by keeping themselves in the forefront of social commentary that they can augment a membership which if it is dependent only on gun owners will, by definition, decide that their gun ‘rights’ aren’t threatened in the age of Trump?

Either way, if they are convinced that their messaging requires them to identify new ‘threats’ to gun ownership, the death of Theunis Botha opens up a whole, new area in which the NRA might find a new threat whose presence needs to be eradicated or at least controlled. After all, is there anything more threatening to the God-given right to walk around with a gun than a full-grown elephant, a lion or a bear?

Trump Goes To NRA And Gives ‘Em Squat.

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.

Trump Spells Danger For The GVP And That’s Not Up For Debate.

Every morning I receive an email from Chris Cox, warning me about the Armageddon facing gun owners if Hillary is elected. He also asks for dough.  When I say ‘every morning’ I mean every morning, okay? Of course the truth is that Hillary has absolutely no intention of taking away all the guns because even if she wanted to, she can’t. There’s something out there called the 2nd Amendment and running a few diplomatic emails through a private server is one thing, violating the Constitution is something else.

trump2           Does it bother me that the increasingly shrill appeals for money by the NRA contain statements that simply aren’t true? Not really. After all, when you’re selling something that people don’t need, you do what you gotta do.  What does bother me is the degree to which NRA emails and messaging aren’t matched by the other side. And you would think that since the Gun Violence Prevention movement (or what we call ‘GVP’) finally has someone running for President who is talking loudly and continuously about the need to end gun violence, this would be enough of a reason to ramp things up and start responding to the NRA in kind. But I received no less than four emails today from national and state-level GVP groups and none of them mentioned the election at all.

I’m going to take a page from the NRA communications playbook and tell you what will happen if the Hill stays Republican and a certain New York City landlord is sitting in the Oval Office in 2017.  And this list isn’t based on some delusional fantasy that the NRA creates again and again to keep its members all riled up.  These things will happen and the only reason they haven’t happened yet is because there’s a guy named Obama still hanging around. Ready?

 

  • A national, 50-state concealed-carry license will be law of the land;
  • The ATF will no longer be able to prevent surplus military weapons from being imported from overseas;
  • The ban on CDC-funded gun research will be made permanent rather than having to be voted as a budget amendment every year;
  • Obama’s attempt to kick-start “smart gun” research will be dead before it arrives.

 

Leaving aside these specific issues for a moment, a Trump win in November foreshadows a much deeper and more profound problem for Team GVP, namely, the fact that he has openly embraced a culture of violence which will only strengthen the notion that we should all be walking around with guns. When Trump tells a rally that he’d like to punch a protestor in the face, when he says that his supporters would follow him even if he shot someone dead in the street, he’s not just pandering to the basest and most fearsome emotions we all sometimes feel; he’s telling America that violence is an approved way for individuals to interact.  And what’s the most efficient way to express violence? A gun.

Talking about using a gun, we now have a Presidential candidate who is willing to make gun violence a focal point of her campaign.  And yet for reasons that I don’t understand, my friends in GVP-land seem unwilling or unable to sit down and come up with an organized plan that will begin to focus everyone’s attention and energies on the task that lies ahead. And the task is very simply – Trump has to be stopped.  And I don’t think that such a discussion and such planning involving all the GVP constituencies has to wait until the Democratic primary campaign comes to an end.

Because the truth is that whether it’s Hillary or Bernie, the opposition and the threat isn’t going to change. So getting everyone together, sharing resources, reaching out to every last person who has ever expressed the slightest interest in any kind of GVP activity is something that should start today.  Not tomorrow – today.  And don’t think that you won’t hear this from me again.

Texans Will Make A Big Decision On January 1st. Do They Want A Burrito Or A Gun?

Ever since the Supreme Court ruled that the 2nd Amendment gave Americans the Constitutional right to keep a loaded, unlocked handgun in their homes to use for self-defense, the pro-gun nation has been trying to push the notion of armed, self-defense beyond the home and into the street.  This strategy has taken two paths; on the one hand promoting concealed-carry licensing, on the other, bringing weapons into gun-free zones.  There’s nothing but anecdotal evidence supporting the idea that a gun can protect its owner from crime, but there’s plenty of serious research which shows the opposite to be true.

open               The latest effort to widen the scope of armed defense is about to be unveiled in Texas with the law allowing open carry to take effect on January 1st.  This law was the brainchild of a former Army Master Sergeant, C.J. Grisham, who parlayed an argument with a cop over how he was openly carrying a gun into a statewide movement which even made him briefly consider a run for the State Legislature until his campaign ran out of dough. Bottom line is that even though an earlier attempt to promote open carry in Texas was condemned by the NRA, those fearless advocates for gun rights in Fairfax, VA, eventually saw the light and lined up behind the bill that Governor Abbott signed into law.

Believe it or not, I’m really happy to see the open carry law go into effect in Texas, because I think the result is going to be exactly the reverse of what the pro-gun nation hopes to achieve.  First of all, the law has an opt-out procedure known as 30.07, which allows merchants to post signs at the entrance to their establishments stating that only shoppers who carry their guns concealed will be allowed on the premises after January 1st.  And I am frankly astonished at the extent to which major merchandisers in Texas have announced that they will not welcome folks openly carrying guns into their stores.

Take, for example, a company like Simon’s, which operates malls and discount outlets in 39 states.  They run 35 major shopping destinations in Texas, including such flagship locations as the Gateway in Austin, The Galleria in Houston (which includes the first Webster boutique outside of Florida), and the Shops at Clearfork in Fort Worth.  Simon’s is opting out of open carry, and so are major food chains, like H-E-B, which has supermarkets in 150 towns, and national chains like Safeway and Whole Foods.  Opting out of open carry is also now spreading through the religious community, with the Catholic Diocese in Lubbock, Dallas and other areas posting notices that guns aren’t welcome on hallowed ground.

The public discussion over this new law has also given GVP advocates like Moms Demand Action an opportunity to engage store owners and other operators of public venues with their unique message about gun violence, as well as providing 30.07 signage and instructions for opting out of the new law.  Anyone who thinks that Shannon Watts and her ladies aren’t playing a visible role in promoting 30.07 at the grassroots level will be in for something of a surprise as more signage denying access to open carry continues to appear.

I believe that wearing a gun in a public venue does nothing to promote public safety.   And the merchants who have opted out of open carry evidently agree, with most citing concerns about guns endangering rather than protecting their customers, particularly in places where alcohol is served. In that regard I am particularly interested in the fact that Gringo’s Mexican Chicken and Jimmy Changas, two of Houston’s most popular Tex-Mex restaurant chains, will be going 30.07, because if gun folks like to do anything more than argue about the 2nd Amendment, they love to eat. And when all is said and done, I predict that consuming a burrito will turn out to be more important than wearing a gun.

 

 

Is The NRA America’s Oldest Civil Rights Organization? Not By A Long Shot.

Now that Colion Noir, or whatever his name is has spiked my Huffington column views by denouncing me as a not-so-closet racist and as someone who knows nothing about guns, I think it’s time to finally set the record straight as to why I find his video arcade to be so appallingly amateurish, silly and without serious content of any kind.  Because behind his verbal pitter-patter and the prancing around in his endless collection of baseball caps, what we have is an effort to promote the ‘gun culture’ as some kind of uniquely American lifestyle that deserves our interest, attention and support.

But what Colion is really supporting is nothing more than the continued marketing campaign of the gun industry to convince us that the real enemy is the ‘mainstream,’ liberal media who wants nothing other than to take away all the guns.  And this is particularly serious for our man Colion, who sees himself as the last line of defense against people like me and my “pathetic attempt to manipulate Black people away from the gun rights issue.”

noir           But what exactly does Colion mean when he talks about ‘gun rights?’  What he and the NRA want you to think is that gun-grabbing liberals (like me) are really devils in disguise, because we pretend to be in favor of equal rights when, in fact, we are endlessly trying to strip Black folks of their most precious and hard-won right, namely, the right to defend themselves with a gun.

This nonsense about how the so-called ‘tradition’ of African-Americans arming themselves for self-defense is part of the bigger pile of historical untruthfulness that the NRA endlessly promotes every time it proclaims itself to be ‘America’s oldest civil rights organization.’  The NRA was founded in 1871, and had it actually been concerned with civil rights, perhaps the African-American community wouldn’t have had to wait until a century following the end of the Civil War to gain the same legal and social equality that the White citizens of this country enjoyed once the Constitution was ratified in 1788.

In fact there was a tradition of Black armed, self-defense which grew up in the decades following the Civil War.  And when Dr. Martin Luther King, Jr., began preaching the strategy of non-violence, he found himself in disagreement with other Black leaders, like Robert Williams, who publicly made no bones about the fact that they wanted and needed access to guns. But let’s make one thing very clear: civil rights activists like Williams didn’t want guns to protect themselves against crime.  They needed guns to protect themselves against organized, state violence in the form of racist sheriffs and the KKK.  To Southern civil rights activists, Black and White, terrorism wasn’t something which existed in the Middle East.  It was home-grown, violently racist and bent on keeping Blacks ‘in their place.’

There is simply no relationship, historical or otherwise, between the century-long struggle for civil rights in this country and the cynical attempt by the gun industry to pretend that their promotion of the 2nd Amendment is an equivalent effort to strengthen Constitutional rights.  I happened to be living in Chicago in 1969 and working on the city’s West Side when a unit of the Chicago Police Department mounted a machine gun on the roof of a backyard garage, opened fire, and assassinated the local leader of the Black Panthers – Fred Hampton – as he lay sleeping in his bed.  I was at the scene shortly after the murder took place, the bedroom wall sustained more than 200 rounds of high-power ammunition from which Freddie had absolutely no chance to escape.

The Panthers got their start in California and it was their public display of guns which resulted in a gun-control law signed by a Governor named Ron.  But the Panthers didn’t arm themselves for protection against ‘thugs.’  And if Colion wants to pretend that he’s fighting for the ‘rights’ of minorities by prancing around for the NRA, what you’re seeing is a modern version of the minstrel show.