On Huffington and Heller

Jackson Williams reacted swiftly after the DC vs Heller decision was handed down. He quickly moved to his keyboard and submitted an article to the Huffington Post that was...wait for it...measured, logical, and honest? I was a bit surprised myself. Unlike many of the slanted diatribes that I have read on the Post, Williams does not hesitate to praise Scalia (in this instance), and put the screws to people like Keith Olberman:

The logic of a "living Constitution" can't apply to some amendments, such as the First and the Fourth, yet not to the ones I don't care for or find problematic. Such an approach courts disaster by encouraging others to use the same means in purging the parts of the document they don't care for....It sounds like Keith stands foursquare with George W. Bush when it comes to constitutional analysis.

Williams then stands up to be counted with other liberal scholars, who in recent years have admitted openly that they believe the 2nd amendment confers an individual constitutional right to bear arms. He goes on to say that this right, similar to free speech, is not absolute and can be sensibly regulated. Jackson goes on to name a number of methods of limitation that are popular to gun-control advocates. Some of these restriction border on stifling, and I don't think that the types of limitations that he proposes would pass a litmus test for any other enumerated right. That being said, he is still willing to abandon the hard line stance that many of his colleagues have not been so brave to do and I think this in itself is a triumph. Hopefully, as the debate about the legality of certain gun control methods is renewed, bright people like Williams will continue to operate on logic and not emotion - and realize that gun control they still push for serves only to restrict rights and does little to stem crime.

Yesterday on Reason.com, Radley Balko brought some of us down from our week long post-Heller high, and reminded us that attempts at restrictive gun control are far from over. While the decision affirmed what many of us already knew about the right to keep and bear arms, Scalia also left the door open for many future and existing state restrictions that fall short of total prohibition. The case against Washington DC was intentionally narrow to ensure a favorable ruling, but that means the decision is also narrow. Questions about constitutional incorporation still loom, as well as what is the test for a reasonable restriction based on the majority opinion. The upcoming cases against Chicago and San Francisco's various handgun prohibitions might shed some light on the situation, but the fight at the state level has only just begun.

Reason.tv on What Heller Means for the Future of Gun Rights

Reason's Senior Editor Brian Doherty speaks on Reason.tv about what the Heller decision means for the future of your 2nd Amendment rights. He covers the basics of the case, the implications it has for strict gun control in the states, and how gun control groups are going to react.

Watch the whole thing here.

YOUR 2ND AMENDMENT IS OFFICIALLY YOURS!

On Thursday, June 26th, 2008 the Supreme Court of the United States officially and definitively declared what all gun owners have known in their hearts for years - the 2nd Amendment of the Constitution recognizes and grants an individual right. From the majority opinion:

There seems to us no doubt, on the basis of both text and history, that the second amendment conferred an individual right to keep and bear arms

The NRA is moving swiftly to file suit in overly restrictive jurisdictions such as Illinois and California.

I could not be more pleased about this historic decision, and I look forward to bringing more news and commentary on future victories on the state and federal level.

Will Heller Make a Hypocrite of the ACLU?

I have always been at odds with the American Civil Liberties Union (ACLU) and their position on gun control. Buried within the 'police practices' section of their website is a solitary page that states their opinion on firearms ownership as a civil liberty, or lack of recognition of such. The ACLU is known as a staunch defender of the all civil liberties: those found in the explicitly in the Bill of Rights, determined by state and federal courts, and found in common law and practice. If public opinion sways against them or a Circuit Court ruling comes down in favor of the limitation of a right, the actions and positions of the ACLU are undeterred...except when that right in question is not politically favorable to their donation base.

While the ACLU position page notes that the issue has "not been ignored" by the organization, it plainly admits that is has been cast aside. The national board has reportedly held debates on the 2nd amendment and interpreted it for you. Where did they end up? That this one section of the Bill of Rights, which explicitly contains the words "the right of the people", exists mainly as a collective right. A few reasons are given, but the usual rigor of debate and thoroughness of the research that the ACLU is known for is markedly absent.

In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.

A few items in that short paragraph should throw up question marks to gun owners and gun rights advocates. The basic tool and standard arm of a soldier has been and always will be the rifle, and while design has evolved, the power of the round has changed little in over 100 years. The handgun holds its place in history as well, and remains the standard sidearm of almost every army worldwide. Furthermore, while they talk about supporting "reasonable" restrictions on arms, they are nowhere to be found in places with unreasonable prohibitions like DC and Chicago. The only evidence I can find of the ACLU defending gun rights goes their Texas branch, and this was only because the particular law in question allowed for arbitrary arrests and prosecution.

On what rationale and judicial precedent does the ACLU stake out their position?

The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia.

Miller is a hotly contested ruling that is quoted by both sides of the gun control debate. While the court did in fact rule against Miller in this case, there is much more to the story. The case did not involve a total prohibition on handguns for functional firearms - it was hinged on the possession of a sawed-off shotgun, which violated the National Firearms Act. The lower court had ruled in favor of Miller and the individual nature of the 2nd amendment, it was the then hostile federal government that had to appeal the ruling. Miller's attorney for this battle was court-appointed and uncompensated, given only two weeks to prepare a brief, and unable to travel to DC to give oral arguments. At trial the only arguments heard were from the US government. When the ruling was handed down the opinion was narrowly focused on the specificity of the firearm and not the nature of the right itself:

In the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun ... has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

The Miller case has enough caveats in its ruling and holes in its legislative process to encompass an entire post in itself (as a matter of fact, the Washington Times covered it comprehensively this week, and NPR recognized a few of these facts on today's Talk of the Nation), so why does the ACLU rest its entire opinion on this single piece of precedent? More importantly, how will the ACLU react if DC v Heller is found to recognize an individual right? Will they come clean and admit their bias, or will they take the high road and fold this right into the portfolio of those they vehemently defend? I hope that for the sake of all American civil liberties that they choose the latter.

NY State Wants the NRA to Train Gun Owners - Sort of

The new Governor of New York, David Patterson, wants the NRA to be the agency responsible for training gun owners in the Empire State. Though Patterson is recognizing the NRA's history and reputation as the gold standard in firearms training and safety, the request is buried within a bill that would further restrict the rights of the state's constituents.

Paterson is proposing a gun safety bill that, in part, requires buyers of guns to first take a firearms safety course...Ironically, the NRA opposes the overall Paterson bill, saying it imposes too many financial and regulatory burdens on the industry.

While a mandatory safety class is an undue burden on owners, it should be of some solace that the reactive anti-gun politicians of NY state at least agree that the NRA is best equipped to handle the training, right? Wrong - it turns out that many are furious that the Association is even mentioned in the bill:

While the NRA training program is well-regarded, its inclusion in the bill has angered a number of legislative Democrats and anti-gun activists. Jackie Hilly, executive director of New Yorkers Against Violence, said the inclusion of the NRA in the legislation gives the group state-sanctioned support.

To add a little insult to injury, the story in the NY Daily News adds some editorializing right off the bat to scoff at the NRA being a group responsible for safety:

Gov. Paterson wants to give the National Rifle Association - of all people - a state-sanctioned role in training would-be gun owners in New York.

Acknowledging that the NRA is one of the largest and most successful educators in firearms operation (over 50,000 NRA certified trainers in the US) and children's safety is a compromise that the Daily News and many NY politicians are not willing make. Doing so would hurt their ability to demonize the organization and its members whenever a bill is proposed to further restrict people's rights in the name of public safety.

Emotions Against Open Carry

James Carroll over at the Boston globe has contributed an op-ed piece in response to last week's open carry news article that made its way across the wire. Not surprisingly, he takes a tone that has become commonplace for the Globe when it comes to firearms and gun rights: reactive, emotional, and afraid. Carroll opens with a tale of a pre-pubescent encounter with his FBI agent father's gun, and the taboo pseudo-sexual feelings that it brought up within him.

Awe. Trembling. That the gun was my father's was a first clue to potency. Hidden away, yet the gun sent a pulse through the whole apartment, a psychological electromagnet around which my awareness swirled. Long before I tasted the temptations of sex, I yielded to an irresistible prurience by opening that drawer.

Despite Carroll's recognition that his exposure to firearms is linked to national identity, and an at-least begrudging acceptance of the 2nd amendment, he fails to recognize a legitimate need or use of ownership. He naively represents anti-gun bills in congress as being designed to reduce violence (which they have been proven not to) and blames the "all powerful lobbying of the National Rifle Association" for killing them - an implication that they are responsible for the gun death in the States.

Carroll's solution to the problem of gun violence in America? Attack the open-carry movement that exists in states with more liberal (in a classical sense) gun laws.

"Open carry" aims to remove such visceral negativity, though the taboo amounts, in fact, to last ditch gun control. The "normalizing" of guns will inevitably normalize their use....And who, pray tell, will bear, not the arms, but the consequences?

He misses a few key points here that are important to the argument. The first, which is repeated regularly in my posts, is that gun violence exists regardless of the laws in place. It exists when open carry is forbidden. It exists with assault weapons bans. It exists in horrific numbers in places like DC and Chicago where handgun bans have been implemented for years. What Carroll also fails to recognize is that there was a time when guns were not buried away and demonized by society. They were sold in hardware stores and mail order catalogs. .22 rifles were slung over the shoulders of high school shooting club members when riding the New York subways. He suggests that America needs more shame in its attitude towards guns, not less. But attempts at shaming gun ownership and wishing them away has only produced more pain. Legalized open carry allows people to recognize that law-abiding citizens can and do utilize firearms in a responsible manner. A healthy exposure to firearms develops respect and understanding for the weapon, not a crazed desire to misuse it. But all of this is lost on Carroll. When you disregard science, logic, and history; and operate purely on visceral emotion "Shame is the children's last protection."

Brady and the Media Try to Turn a Loss into a Victory

ABC News has a report that the Brady Campaign is bracing itself for a loss in DC v Heller - the DC handgun ban challenge that the Supreme Court will decide on by the end of this month. Furthermore, Brady President Paul Helmke has conceded that his people have "lost the battle on what the second amendment means":

Seventy-five percent of the public thinks it's an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.

While this concession should be viewed as a tremendous defeat for the Brady group, Helmke, with the help of ABC, insinuates that they could somehow turn it into a political victory. The idea is that once the 2nd amendment is indisputably declared an individual right, it will take the teeth out of the NRA and make it hard to motivate their base. The LA Times joins in this commentary by spinning the potential gun rights victory with the headline "NRA's political clout is waning". They go on to say:

Congress hasn't passed major legislation to restrict gun use in 14 years. Democrats -- scarred by past NRA campaigns -- almost never talk about the issue anymore.
And Americans now show little interest in gun control. Just half want tougher rules for gun sales, compared with nearly two-thirds in 2000.

Helmke and the Times seem to think that just because the NRA has won a victory on the federal level it means they will somehow fold up shop and allow states to slowly regulate firearms out of existence. In my last post I linked to an interview with DC v Heller lead lawyer Alan Gura, who warned of this "death by 1000 cuts" approach. What opponents seems to ignore is that while every four years the NRA has mobilized to ensure gun rights are upheld on the federal level, the majority of their work is done at the local level. The National Rifle Association is by its nature a grassroots organization. Most states have a local affiliate (in my home state of Washington we have the Washington State Rifle and Pistol Association and the Washington Arms Collectors) and national members receive via e-mail a weekly state roundup and local action alerts to let the rank-and-file know what the organization is doing to preserve gun rights in their area.

It may be true that the NRA might not be able to warn their members about federal registration and confiscation any longer if DC v Heller goes in their favor. That being said, they will have plenty to worry about, and infringements on the state level will be more than enough motivation. As groups like the Brady Campaign phase themselves out of Capitol Hill and into the state houses, the NRA will follow. The "1000 cuts" of microstamping, emergency confiscation, ammunition serialization, smart gun mandates, gun show background checks, affordable gun bans, expensive safety over-regulation, gun buybacks, cosmetic gun bans, and caliber-specific ammunition bans have constantly come from state, not federal legislators.

The NRA started as a way to ensure that Americans citizens would always be proficient with firearms if called during wartime. As anti-gun advocates gained power, the association morphed into one of the largest grassroots operations in Washington, and arguably one of most powerful lobbying groups. If the fight for gun rights moves solely to the state capitols, I have no doubt that they will be quick to move into that role. This is a role they have been largely successful in for decades - all while winning the war on the federal level.

Interview with DC v. Heller Lead Attorney Alan Gura

Reason.TV has posted a 9 minute interview with Alan Gura, the lead attorney in the DC v Heller case. Not surprisingly, due to the nature of this blog, Gura is the lawyer for Heller, who is fighting against the city's current gun ban. Lots of great things to be heard here directly from the man who is standing up for all of our rights. He makes a very astute point about how many politicians have learned not to talk about outright bans on gun ownership and the real danger of the "death by a thousand cuts" approach. This alternative approach slowly whittles away at gun rights until it is too difficult or outright impossible to own a firearm without violating some directive, law, or statue.

Entire interview can be seen here.

Some Good and Bad out of Seattle

On Sunday and Monday there was a decent amount of coverage on firearms in the Seattle newspapers.

First the good. On Sunday the Seattle Times posted an LA Times article on the subject of open carry. The article gives a fair report on the everyday people who have not only adopted concealed carry, but expanded to openly carrying a gun in public as well. Generally they are not depicted as crazy or out of the ordinary, but regular people who have made an informed and responsible decision to exercise their rights:

The Jensens are part of a fledgling movement to make a firearm as common an accessory as an iPod. Called open-carry by its supporters, the movement has attracted grandparents, graduate students and lifelong gun enthusiasts like the Jensens.

Now the bad. On Monday, anti-gun zealot and Seattle Mayor Greg Nickels announced a ban on all guns from city facilities including parks, Seattle Center, and community centers. This executive order applies even to concealed carry permit holders (called a concealed pistol license in Washington State). Because of preemption, cities and municipalities in Washington State have no power to enact their own firearms laws. This means that the only offense for disobeying the order is to considered a trespasser and asked to leave the premises. Nickels correctly predicts the challenges that are sure to come from his illegal order:

"I would not be surprised if there is a challenge to our authority on this," Nickels said. He said a recent lawsuit involving the city of Sequim may give him authority to ban concealed weapons on city property.

Let us hope that this order, even though it creates no arrestable offense, is recognized for its abhorrence to state law and struck down. Nickels could learn much from the recent defeats that Philadelphia Mayor Michael Nutter suffered when he tried to defy state law and write the rules himself. Do the people of these fair cities not recognize the slippery slope that their executives are on when they start arbitrarily creating laws in defiance of other laws? There may be no outcry when they are in agreement with these tyrannical moves, but what happens when one of the rights they hold dear are randomly tossed aside? By then it will be too late to complain.

Wired Against the 2nd Amendment

Eliot Van Buskirk wrote a post on the "MP3s and Music Reviews" section of Wired's blog today. While it ostensibly is a review of Ted Nuget's fairly disappointing "I Am The NRA", Van Buskirk does not hesitate to take the same tired jab at the 2nd Amendment and its supporters. While he claims that he can "get down with Ted's...respect for the Constitution", he quickly belittles the meaning of the 2nd:

I can't remember the last time I saw a minuteman leap down his front steps to defend against the British, but maybe that's just me.

I don't know what version of the Bill of Rights Van Buskirk is reading, but the 2nd Amendment does not mention the British or minutemen. Though in the past there has been some debate about the exact punctuation of the actual words, and the nature of the prefatory clause referring to the militia, the amendment is plainly written as a right of the people to keep and bear arms. Just the other day author Stephen Halbrook wrote in the Roanoke Times about how plain the language and meaning become when referring to Noah Webster's dictionary available during that period of time.

Van Buskirk manages, in a pretty short post, to take another jab at both the meaning of the 2nd amendment and the NRA itself:

(The) new song out called "I Am The NRA"...magically equates political freedom with the right to own high-powered assault rifles and Teflon-coated bullets.

The words "high-powered assault rifle" should be a red flag to any supporter of the 2nd Amendment who lived through the Clinton ban. This phrase, and others similar to it, are frequently brought out to sound scary and frighten people into giving up their rights. When using this phrase there are often no ballistics brought up (such as velocity, rate of fire, effective range, capacity, etc), because their similarity to traditional hunting rounds and arms takes some teeth out of the argument. Also suspect is the reference to Teflon-coated bullets. This is frequently brought up in NRA hit-pieces for their fight against banning these rounds. What these articles, and fleeting references such as Van Buskirk's, fail to mention is that the bills written to ban these rounds would also have banned the majority of conventional hunting and rifle rounds. But let's not ever let the truth get in the way of a good argument.

Van Buskirk may only find Nugent's (and the NRA's) support of the 2nd Amendment "myopic and grating", I find his dangerously narrow interpretation of the Bill of Rights and reliance on media buzz words as scare tactics much more offensive.