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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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.

 

Another Dope Shoots His Mouth Off About The Alexandria Shooting.

Last month I gave an award to a State Senator in Florida, Greg Steube, for authoring the dumbest gun bill so far this year.  The bill would allow people injured by guns to sue the owner of the public premise where the attack took place if the location was a gun-free zone.  But today I want to give another award to a politician, in this case for writing the dumbest op-ed that I have ever read.  And the award goes to Congressman Chris Collins (R-NY) who put a piece in WaPo saying that as a result of the Alexandria shooting, from now on he’s going to go everywhere in public carrying a gun.

alexandria             New York’s 27th CD used to be represented by a Democrat, Brian Higgins, and he now sits in the 26th CD which was redrawn to cover the city of Buffalo, whereas the 27th now covers the Buffalo suburbs and some rural areas to the south and East.  The 27th also takes in the state prison at Attica, but Collins doesn’t have to worry about the prison’s location, because in New York State incarcerated felons can’t vote.  And in 2016, Collins got two-thirds of the votes, mostly from farmers and residents of suburbs and small towns.

Which is why, I guess, he’s decided to go around his district with a gun, because as he says in his op-ed, “But all of us [read: public officials] — including our families, our staffs and their families — expect and deserve to be safe from harm. After what we saw last week, it’s clear we need to do more to make sure that we’re protected.” And if you haven’t yet figured out where this idiot is going, the next sentence reads: As Americans in my district and across the country know well, responsible, legal gun owners have every right to protect themselves, and that applies to members of Congress as well. I’ve worked to make sure these core values, preserved in the Constitution, are upheld.”

There’s only one little problem with what this fervent upholder of the Constitution says, namely, the 2008 Heller decision only gives Americans the ‘right’ to protect themselves with a gun inside their homes. What a blowhard, what a buffoon and worse, he then goes on to say that he knows how to use and carry a gun because, and this is the best one of all, “My father taught me responsible gun ownership.”

Tell me this, Chris.  Did your father also teach you how to shoot a gun?  Do you go out from time to time and practice aiming and shooting a handgun at a human target, particularly one that might be moving around?  Did you even have to demonstrate any shooting proficiency at all in order to get your concealed-carry license which you claim has been in your wallet ‘for years?’ Don’t waste your valuable time answering those questions because I’ll give you the answers.  The answers are all ‘no.’  How do I know the answers?  Because if I had a nickel for every dope and loud mouth who says he’s going to protect himself, his family and everyone else with the gun he’s allegedly toting around even though he never (read: never) had to certify his shooting creds with any law enforcement official mandated to actually validate his claims, I wouldn’t have to sit here pounding out these words for a living.

I’m still waiting for the NRA, who probably helped Collins write his nonsensical op-ed, to live up to their own cock and bull about being America’s gun training organization and say what needs to be said, namely, that issuing concealed-carry licenses without mandated (i.e., required) proficiency validation is a guarantee that you’re not a ‘good guy’ if you walk around with a gun.  You may be a dedicated public servant, Representative Collins, but when it comes to the issue of guns and what you are planning to do to protect yourself, your family and your staff, you’re just a dumb jerk.

 

Comment On A Proposal To Regulate Guns.

Although there are some fringe elements in Gun Nation who claim that their ‘right’ to own a gun is unlimited, usually based on some kind of eternal recognition that self-defense is ordained by God, even the most strident pro-gun voices will admit to some degree of regulation when it comes to owning guns.  And the regulation that is usually proffered as being acceptable to the gun crew is the basic regulation which is in force right now, namely, a NICS-FBI background check that only takes place at the initial point of sale.

2A             The argument that is usually advanced to restrict background checks to initial gun transfers is that imposing secondary background checks on law-abiding gun owners is a slippery-slope that will eventually lead to gun registration, and we all know that registration leads to confiscation, which leads to the Holocaust, which leads to God knows what else.  And it’s pretty difficult to find anyone on the pro-gun side of the argument who won’t tell you that all those people who claim to support the 2nd Amendment but want to expand gun regulations aren’t anything other than wolves in sheep’s clothing looking for some way or another to get rid of all the guns.

If Gun Nation is looking for some kind of ‘proof’ that gun-control advocates are a threat to their beloved 2nd-Amendment rights, they need not look any further than an op-ed which appeared today in The New York Times.  Authored by Professor Lawrence Rosenthal and Abner Mikva, the latter a recipient of the Presidential Medal of Freedom in 2014, the commentary argues that while the 2nd Amendment precludes the government from preventing private ownership of guns, it does prevent government from enacting more expansive gun-control laws.  Citing the 2008 Heller decision, the writers believe that if citizens can keep guns in their homes, then the phrase ‘well-regulated’ refers to this form of ownership, hence, additional gun-control measures can and should be invoked.

It would be difficult to find fault with this argument if Rosenthal and Mikva made their case based only upon an extension of NICS checks to secondary sales. Their comment in this regard, that the “entire secondary gun market is a vast regulatory void,” is not only true but has become more true as the internet has stretched private gun transactions far beyond the local gun show.  But the argument doesn’t rest there, because Rosenthal-Mikva then swing effortlessly into a discussion linking expanded background checks to universal gun registration, as if coupling the latter to the former  represents no great difference at all. Here’s the way they put it: “A comprehensive system of background checks and registration would not prevent law-abiding people from obtaining guns for purposes of lawful self-defense.”

When all is said and done, one could posit a similar thought for just about any kind of gun regulation which didn’t keep law-abiding individuals from owning guns.  But in gun circles, the word ‘registration’ is so toxic that once you introduce it into any discussion about regulating guns, you are guaranteeing that the discussion will quickly come to an end. And in addition to the political implications of registration, studies on the effectiveness of gun registration as a means to reduce gun violence have basically found the results of registration strategies to be inconclusive because there aren’t enough case studies to prove either the pro or the con.

I’m not opposed to registration because I believe the ‘slippery-slope’ argument has no basis in history or fact, and I’m somewhat old-fashioned because I side with Senator Daniel Patrick Moynihan who said that public policy should be based not on opinions but on facts.  But in that context I wish that Rosenthal and Mikva could have been a little more sensitive to the manner in which the gun violence debate plays itself out. Advocating gun registration as just another, sensible regulation is a little bit like walking into the lion’s den and sticking your head into the lion’s mouth.

The NRA May Think It Owns The Gun Debate But The Other Side Is Waking Up.

One of the things I’ve trained myself to do is a weekly check of the NRA-ILA website, because as don Corleone advised his son Michael, you always have to keep your enemies closer than your friends. And while I don’t consider myself and the NRA to be enemies necessarily, I do consider their continued attempts to push a very radical, pro-gun agenda to be shortsighted and ill-advised.  When I joined the NRA in 1955, it was an organization devoted to training, gun history and outdoor life.  It still devotes time, energy and resources to those activities, but the organization’s major thrust today is to promote the notion of armed citizens which I believe does nothing except increase risk.

open                The real reason I’m against the NRA’s push for concealed-carry is that, believe it or not, I think CCW laws for the most part actually threaten rather than strengthen the 2nd-Amendment right to own a gun.  I say that for the following reasons.  First, the 2008 Heller decision specifically and explicitly limited private ownership to guns kept in the home, and I don’t care if all these so-called 2nd Amendment ‘absolutists’ want to yap about their God-given right to walk around with a gun, the law says otherwise, period, end of debate.  Second, Heller also vested in government the right to regulate, and there has not been a single challenge to Heller that has denied the public authority from having the last word when it comes to how, why and when people can carry or use guns.

Finally and most important, a majority, in fact a large majority of Americans don’t own guns.  That’s not true in Western states like Montana, the Dakotas or Idaho, which together have a total population 4.4 million, which is less than the body count for Brooklyn and Queens.  The moment you move into populous states however, particularly on the two coasts where more than 100 million live, per capita gun ownership begins to drop down to one out of four or one out of five.  And despite the whining of Mother Loesch about all those millions of Moms who own guns, that’s about as near to reality as how effectively she teaches her kids by keeping them at home.

Most Americans are in favor of gun ownership, as long as guns are kept out of the wrong hands.  And the only way that will happen is to let the public authority create and enforce laws that restrict gun ownership to folks who play by the rules; and I’m not talking about the rules that govern everyday conduct, I’m talking about the rules that regulate the ownership of guns.  Which is why it’s absurd that the NRA would be campaigning against background checks while, at the same time saying that every law-abiding citizen should own and carry a gun.  It’s a contradictory message and, unless you’re a diehard gun owner, it makes no sense.

This is why I found it interesting that the NRA-ILA website carried a story this week criticizing a recent report which once again found that upwards of 40% of all gun transfers occur without a background check – a loophole that has been mentioned by just about everyone who wants to see an end to violence caused by guns.  The evidence for this claim is an old survey conducted in 1994 which, according to the NRA, cannot be used to measure “anything about the American people with only 251 respondents in a survey.”  This is the same NRA that has been telling us that armed citizens prevent “millions” of crimes from being committed every year.  Where does this evidence comes from?  Another 1994 survey whose respondents numbered 221!

The NRA will never have a problem convincing gun owners that what it says about guns is sacred and true.  But the recent shootings in Virginia and Oregon may have turned the tide and 200 million non-gun owners may be asking themselves what they can do.