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A 2nd Amendment Case Gets To The Court.

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              Uh-oh, sooner or later we knew it would happen. We elect a President who actually shows some concern about gun violence and the other side gets its conservative friends on the Supreme Court to expand gun ‘rights.’

              Here’s what the Giffords group had to say about yesterday’s announcement that the Court will take up a challenge to a New York State law which makes someone jump through a whole bunch of legal hoops before they can walk around the neighborhood carrying a gun: “Today’s announcement,” said Giffords, “is a warning sign that our nation’s highest court is poised to brush aside the will of the people and instead side with gun lobby groups seeking to eliminate even the most modest firearm laws.”

              Not to be outdone, our friends at Everytown made sure to link this threat to our safety to the threat posed by Covid-19: “Gun violence has only worsened during the pandemic, and a ruling that opened the door to weakening our gun laws could make it even harder for cities and states to grapple with this public health crisis.”

              The New York State law basically says that if you want to walk around town with a gun in your pocket, you have to apply for a license which is different from the license you need to buy or own a gun. While the latter license only requires that you pass a background check, the former requires that the applicant explain why he needs to use a gun for self-protection, and if the explanation doesn’t convince the issuing authority that there’s a good reason to be self-armed, the application can be denied.

              The problem raised by the plaintiffs in the New York case is not whether New York State can issue a separate license to allow someone to walk around with a gun. The alleged denial of 2nd-Amendment ‘rights’ is based on the fact that the cops have complete and arbitrary authority to approve or deny the concealed-carry license request.  How do the cops figure out whether someone has made a convincing argument for protecting himself with a gun? Whatever way they want to figure it out.

              Our friend David Hemenway published a study on this licensing procedure in Massachusetts, which is one of the eight states, along with New York, which grants police an arbitrary authority to decide who can and who cannot walk around with a gun. A large majority of the 121 police chiefs who answered David’s survey stated they were comfortable with the retaining discretionary authority over the issuance of concealed-carry permits, but only 2% of the permit requests were denied each year.

              Let’s say the Supreme Court sides with the plaintiffs in this case and says that New York State has to relinquish its authority to arbitrarily decide who can, and who cannot walk around with a gun. This would represent such an ‘elimination of modest firearm laws’ (to quote Giffords) that New York State would join the other 42(!) states which have already ‘eliminated’ this ‘modest’ firearm law.

              In 1986, there were exactly 7 states whose residents could apply for a concealed-carry permit without having to cite a particular need. That same year, the national homicide rate stood at 8.6, with 60% of all homicides committed with guns. In 2019, with 42 states giving just about every law-abiding resident the right to walk around with a gun, the homicide rate was 5.8, with 75% of all homicides committed with guns.

              What’s the connection between the so-called elimination of ‘modest’ gun laws and an increase in gun violence throughout the United States? Beats hell out of me.

              Know why our homicide rate keeps going down but more and more of the killings are committed with guns? Because we are the only country in the entire world which imposes ‘modest’ gun laws based on how we hope gun owners will behave, and not on what kinds of guns they can own.

              Want to get rid of gun violence? Get rid of the guns which are used to commit violence, okay?

www.bantheseguns.org

There Ain’t No Such Thing As Gun ‘Rights.’

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Our good friend Eric Foner has just published a book, The Second Founding, which gives a concise and compelling explanation for how the Federal Government got into the business of defining our basic rights. Which makes this book required reading for everyone who wants to have anything to say about guns and gun violence, since so much of this debate turns on the issue of gun ‘rights.’ If you don’t believe me, just read any of the news accounts of the demonstration which took place in Richmond, VA on MLK Day to protest a new law that Trump claims is an infringement on gun ‘rights.’

The Federal Government first started defining Constitutional rights following passage of the 13th, 14th and 15th Amendments following the end of the Civil War. These Amendments ended slavery (13th), defined citizenship as a birthright (14th) and granted universal suffrage to all male Americans. Foner refers to the passage of these Amendments as a ‘second founding’ because these laws (to quote a Republican Senator from Missouri) “made the liberty and rights of every citizen in every state a matter of national concern.”

 Foner points out that none of these fundamental Constitutional changes would have taken place were it not for the fact that Southern legislatures were dominated by Black officeholders from 1867 through 1877 when Reconstruction came to an end. But precisely because Reconstruction ended only ten years after it began, the Civil Rights laws passed in 1866 and 1875 to give some legal teeth to the Amendments, were either watered down in court decisions or simply ignored.

Both civil laws were attempts to define what ‘rights’ would be protected under the Constitution once the founding document contained protections which applied to every male citizen in the land. The 1866 Act enforced the implementation of laws that covered the following rights: “to ‘make and enforce’ contracts, own property, testify in court, sue and be sued, and ‘enjoy the full and equal benefit of laws for the protection of persons and property.’” (p. 64.)

See anything here about self-protection?  See anything here about armed, self-defense? You won’t find any reference whatsoever to that terminology in the entire text of the Constitution or any of its Amendments, not even in the blessed 2nd Amendment from which all gun ‘rights’ allegedly spring forth. When the NRA proclaims itself to be the ‘oldest civil rights organization,’ is it referring to the rights embodied in the 14th Amendment and enumerated in the Civil Rights Act of 1866?  No. It’s not referring to anything other than what a clever advertising agency figured out would help promote the sale of guns.

In fact, if you take the trouble to read the 2008 Heller decision where our late friend Tony Scalia propounded his view of gun ‘rights,’ you will note that it is not only a very narrow definition of what the 2nd Amendment says a gun owner can do with his guns (he can keep one handgun in his home) but it’s far from being an uninfringeable right because the government has great leeway in determining who can and cannot own guns.

Not only are gun ‘rights’ not mentioned anywhere in the Constitution, nor in any of the federal laws that have been passed to define or enforce Constitutional texts, there is also no mention of the other hallowed Gun-nut Nation ‘right,’ i.e., the ‘right’ to self-defense. When the Constitution talks about being protected from harm, the reference is to equal standing in the courts, not to passing a background check so that you can walk around with an AR-15 on your back.

There’s also the non plus ultra for carrying your Glock, which is that self-defense is a ‘God-given right.’ I hear this all the time from my Gun-nut Nation friends and my answer is simply this: If you want to live in a country where laws are first and foremost the handiwork of Almighty God, move to Iran, okay?

Foner’s book isn’t about guns. It’s a solid work about how the word ‘rights’ should be defined and used in any important discussion about current events. In this respect, the way our friends in Gun-nut Nation use the word fails both historical and legal tests.

Is It Time To Start A New Gun-Rights Organization?

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Our friends at Media Matters have posted a pretty good summary of the financial/management problems at the NRA, even though the situation could change tomorrow and what we thought yesterday no longer holds. But the bottom line is that some of the recent disclosures on Wayne-o’s spending habits in Beverly Hills could not only cost him his job, but result in the loss of the organizations’ tax-exempt status as well.  And if it turns out that there was a conscious effort to disguise personal expenditures as business expenses, and if this effort resulted in a conscious mis-statement of IRA filings by either the NRA or its PR firm, Ackerman-McQueen, someone could be going to jail.

So let’s pretend that Wayne-o copied Paul Manafort and spent thousands of dollars on various baubles at the Zegna boutique on Rodeo Drive. And let’s further pretend that the NRA covered these purchases, and others, by billing the receipts to Ackerman-McQueen. And then let’s take the next step and pretend that Ackerman-McQueen billed these costs to the NRA as a business expense and the NRA paid the bills out of tax-exempt funds. And let’s not forget that NRA President, Carolyn Meadows, has gone on record as denying that anything untoward has happened at all. If all of this flim-flam turns out to be true, and you can read a good summary in a column on Rolling Stone, America’s gun owners may be forced to look for a new organizational home to call their own.

Well you say, that’s no problem. After all, according to our friends at the Hopkins-Bloomberg school, overwhelming majorities of gun owners support some gun restrictions, including universal background checks, higher standards for concealed-carry licensing, red flag laws and stricter controls over dealer operations. So why not form a new organization that will continue to support 2nd-Amendment ‘rights,’ while at the same time, advancing ‘reasonable’ restrictions on guns?

And just to keep Gun-nut Nation happy, the new NRA will continue to hold its annual jamboree as well as sponsor even more grass-roots events.  Right now there are 31 NRA events scheduled in Florida between now and October 1st. South Carolina has 10 events coming up, California has 38!

Just imagine if all these events were sponsored by a new gun-owners organization which would give you a full rack of ribs, two corn-on-the-cob and cherry pie for free, because Mike Bloomberg is happy to pay for the dinner of any gun owner who signs a pledge that he’s in favor of comprehensive background checks?

There’s only one little problem with this fantasy. It’s not going to happen. It’s not going to happen because advocacy movements that make a real difference have to be led by the people who will be affected most by the laws that are going to be changed.  The civil rights movement was successful because it was led by African-Americans beginning with Martin Luther King. The gay rights movement became a potent force for gender equality when gay men and gay women felt strong enough to stand up and declare their true sexual orientation for all to see.

The problem with the movement which seeks to reduce gun violence is that new gun regulations, no matter how ‘reasonable,’ won’t really make a dime’s worth of difference to the lives of most gun-control advocates, for the simple fact that they don’t own guns. So why would they care if I want to give one of my guns to my son but he and I have to drive 30 miles to a gun shop to do a background check?

But wait a minute. I thought most gun owners also favor comprehensive background checks. That’s true. But you know what other ‘reasonable’ law gets the approval of most gun owners? A law that would let them carry a handgun in all 50 states. And I guarantee you that no gun owner will join any gun ‘rights’ organization whose agenda is determined only by folks who don’t own guns.

The N.Y. Times Thinks It’s Been A Tough Year For The NRA. I’m Not So Sure.

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              “Politically, financially and legally, the gun-rights cause and, more specifically, the lobbying juggernaut that is the National Rifle Association have not fared well in the Trump era.”

              Thus speaketh this morning’s New York Times, and if The Times says it, then it must be true. Except, it happens not to be true. Or it’s certainly not as true as The New York Times Editorial Board would like you to believe.

              And the reason it happens not to be true is because the gun-control community, of which The New York Times considers itself to be a leading media voice, knows as much about the gun industry as I know about the structure of the atom. And I didn’t take physics or nuclear physics in college, so I don’t know anything about the structure of the atom, okay?

              The reason I can’t get on board with the judgement of the gun industry’s impending doom is because the gun-control community invariably defines the ‘power’ and ‘influence’ of the ‘gun lobby’ as based on the activities of America’s ‘first civil rights organization,’ a.k.a., the NRA.  And anyone who believes that the health and welfare of the gun ‘lobby’ should be measured simply by the bottom line of the NRA’s balance sheet, doesn’t know anything about the gun lobby or anything else connected to guns.

              The NYT editorial board cites as its proof that the NRA is on the ropes the fact that, for the first time, election spending by gun-control groups (read: Bloomberg) was higher than the dough spent by the pro-gun gang. But before our friends in Gun-control Nation jump for joy over this unique turn of events, the reportage by our friends at The Gray Lady needs to be nuanced a bit.

              To begin, even when the NRA was priming the electoral pump by giving pro-gun candidates as much campaign money as they could, the average federal office-holder, at best, could only count on the boys from Fairfax to provide 6% of what the candidate had to spend. So for all the talk about the financial ‘power’ of the NRA, after a candidate picked up the check from Wayne-o or Chris Cox, he still had to raise almost all the dough necessary to fund his campaign. What does an average House campaign cost today? Try around $1.5 million or more. How much money did the average pro-gun House member receive in each of the last two Congressional campaigns?  Try less than $5,000 bucks.

              Where the financial imbalance between the NRA and its competitors really shows up, however, is in the amount spent on lobbying activities once a candidate takes his or her Congressional seat. Except the imbalance is so much in favor of the NRA that the notion that Gun-control Nation is beginning to pull abreast of Gun-nut Nation in the halls of Congress is a joke.

              During the 115th Congress, 2017 – 2018, Bloomberg’s Everytown PAC spent just short of $2.5 million on lobbying activities.  In those same two years, the NRA spent more than $9.5 million bucks. In the 8 previous years when Obama was in office, the highest yearly lobbying amount spent by the NRA was $3.5 million. And The New York Times is telling us that the fortunes of Gun-nut Nation have suffered under Trump?

              Finally, when we look at FBI-NICS background checks on gun transfers to gauge how gun sales stack up, the news isn’t all that bad. Handgun-long gun transfers for December, 2007 were 925,000, for December, 2016 they were 1,700,00, for December, 2017 they were just under a million and a half. That’s a month-to-month drop of slightly more than 10% from the last year of Obama to the first year of Trump, but it’s still nearly a 40% increase over the final month’s figure for another pro-gun President named George Bush.

              I’m not saying that it’s been smooth sailing for my friends in Fairfax this past year. But if anyone is thinking that the Gun-nut patient is on its way to life-support, think again.

We Don’t Need No Stinkin’ 2nd Amendment.

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              Now that H.R. 8 has been filed, I am beginning to see the outlines of the campaign narrative that Gun-nut Nation will employ in an effort to beat back any attempt to implement universal background checks, a.k.a. UBC.  Judging from the emails that have come flying in plus comments on various pro-gun blogs and forums, the anti-UBC strategy will embrace two, basic ideas:

              (1). Giving the government the power to control what I do with my private property is a violation of the 5th and 14th Amendments, which protect private property against unlawful seizure.

              (2). Making every gun transfer subject to a background check will create a national gun registry which will lead to confiscation and is a violation of the 2nd Amendment.

              As to the first argument, that people should be able to do whatever they want to do with their private property, I only wish that this had been true when I sold my house in South Carolina but first had to shell out four thousand bucks to Harold and Willy. Who were Harold and Willy? They were two guys who showed up after the house was inspected and informed me that the house couldn’t be sold until they went around and killed all the termites in the walls and the floors. In other words, we have long accepted the idea that you can’t just sell your private property to someone else if in so doing, the sale creates a risk. And even the nuttiest of all gun nuts agrees that selling a gun to someone who has committed violent crimes creates a risk. That was the easy one. Now here comes the hard one.

              Incidentally, I’m hoping that my friends in the gun-control movement will use what follows to prepare themselves for the arguments they might get from the other side. I still have a survey on my website which asks gun-control advocates 12 simple questions about gun laws (there is the same survey for people who considers themselves pro-gun advocates) and to date, I have received 87 responses and the average score of correct answers is 6. So I hope you’ll read what follows here.

              The 2nd Amendment means what the SCOTUS said it meant in the 2008 Heller decision, the majority opinion written by a dear, departed friend. And what it means is that keeping a handgun in the home is a Constitutional ‘right.’ Which means that a state government can pass any gun law it wants, as long as it does not prevent someone from owning a handgun, assuming they are not considered a risk to themselves or to anyone else. Who determines whether someone’s ownership of a handgun might create a risk?  The government. Who determines whether the existence of a particular type of handgun might create a risk?  The government. And that’s it. That’s what the 2nd Amendment means.

So, for example, if you live in New York City and a handgun is found in your home and you cannot produce the requisite paperwork which takes the NYPD Licensing Division about six months to issue on your behalf, you will be convicted of a felony because New York City decided back in 1912 that you can’t keep a handgun in your home for self-defense, or any other reason, until the NYPD says it’s okay. If you go into Court the day of your sentencing and tell the judge that New York City is abridging your 2nd-Amendment ‘rights’ because you would have to wait six months to get a permit, I strongly urge you to bring your toothbrush because you ain’t going home.

Between 1966, when I bought my first gun, and 2008 when Heller was decreed, I probably bought and sold at least 500 personally-owned guns. Not one of those transactions had any Constitutional protection at all. So what? My friends in the gun-control movement should stop worrying about whether something as timid and non-intrusive as UBC is a violation of any kind of rights, Constitutional or otherwise. It’s not, and you can take that one to the bank.

Don’t Be Surprised If Your Physician Supports Gun ‘Rights.’

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Just about everyone who reads this column will also at some point make a visit to their internist for their annual check-up or to follow up some medical issue of concern. I visit my internist several times each year because I happen to like him very much and I kid myself into believing that getting on his office scale will somehow translate itself into me losing weight. Yea, right.

acp              But the next time I visit him, I’m going to ask him if he happens to be a member of the American College of Physicians, which is the national organization which represents internists, and I suspect the answer will be ‘yes.’ At which point I’m going to bring to his attention the fact that the organization to which he belongs and pays dues is guilty of a degree of professional malfeasance which needs to be stopped. And it needs to stop now.

I am referring to the practice followed by the ACP, along with many other professional medical organizations, to pretend that they are very, very concerned about gun violence while, at the same time, utilizing the dues paid by their members to promote the pro-gun narrative and messaging developed by the NRA.

Specifically, this takes the form of donating to the campaigns of Senate and House members who not only vote against all legislative proposals to reduce gun violence, but also speak out in favor of gun ‘rights.’  In this respect, the ACP’s behavior isn’t quite as nefarious as the behavior of the American College of Emergency Physicians; that bunch is the second-highest funder of pro-gun politicians of all the medical societies. In fact, the ACP actually gives more dough to Democrats than to Republicans, so far this year the split is 60-40 in favor of the blue team. Nevertheless, when it comes to supporting a pro-gun politician, some of the candidates who benefit from ACP largesse represent the worst of the worst.

  • Andy Barr (R-K) has received $3,000 from ACP to date. In response to Obama’s mild attempt to promote more gun regulations after Sandy Hook, this is what Barr had to say: “I’m not convinced that President Obama’s proposals would either protect the American people from crime or safeguard the constitutional rights of law abiding citizens.” That statement was right out of the NRA press kit, literally word for word.
  • Kevin Brady (R-TX) is so far spending $5,000 on his campaign courtesy of ACP. He not only voted in favor of the PLCCA law that immunizes the gun industry from torts, he also is a co-sponsor of the bill that would allow concealed-carry licensees to take their gun into all 50 states.

I could list a few more of the dumbest of the dumb Members of Congress whose fervent belief in gun ‘rights’ finds favor with the internists but I think you get the point. In case you don’t, however, read what the chief mouthpieces for the ACP have to say.  Here’s the most recent pronouncement from Ana Maria Lopez, MD, who happens to be the President of ACP: “It’s more important than ever that our nation’s leaders implement common-sense policies that ban the sale of automatic and semi-automatic military-style ‘assault’ weapons that are designed to kill as many people as possible, as quickly as possible.”

Let’s leave aside the fact that neither Dr. Lopez nor anyone in the ACP press office knows the difference between a full-auto and semi-automatic gun. The bottom line is that this same bunch of cynical fools are giving campaign contributions to office-holders like Barr and Brady whose presence and activity in Congress virtually guarantees that no assault weapons ban will ever see the light of day. And if Dr. Lopez doesn’t know who receives campaign contributions from her organization’s PAC, there has to be a complete breakdown between what she does and what she says.

Here’s the bottom line. When it comes to physicians giving a single dime to any political candidate who will vote in favor of guns, this sh*t has got to stop. It has to stop now. Now.

Guns And American Culture Don’t Mean What You Think They Mean.

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The Addison Gallery at Phillips Academy in Andover, MA is currently running an exhibition, Gun Country, comprised of photos, paintings, drawings and other visual artifacts about guns. The museum refers to this collection as showing ‘America’s fascination with the gun,’ but a staff writer for the art blog Hyperallergic, Seph Rodney, has decided that what this exhibition really shows is that “guns are a principal symbol of our sense of masculinity and power for our culture.”

addison            Even though it has become a watchword of the gun-control movement that America’s love affair with guns is a function of the degree to which our society is still controlled by power-hungry, white men (read: Donald Trump), I think that what Rodney is saying happens to be a load of crap. And the reason I say that is because if America’s socio-economic-political structures reflect the dominance of white males who use guns to symbolize their masculinity and strength, how come the rest of Western civilization isn’t also awash in guns?

Oh, I forgot. We are the only Western country where white men settled a whole frontier armed with their trusty six-shooters and Winchester repeating rifles, so guns play a special role in our culture and historical consciousness that they don’t play anywhere else.  Another load of crap.

In 1934, then-Attorney General Homer Cummings proposed the first piece of federal legislation to regulate the ownership of small arms, a bill which became law and is known as the National Firearms Act, a.k.a. the NFA.  Given the existence of the 2nd Amendment, Cummings wanted a law that would make it legal for Americans to own guns, as long as these weapons were not too dangerous for civilian use. Hence, the appearance of the NFA list of ‘prohibited’ weapons (machine guns, sawed-off shotguns, silencers and a few other things) which still exists today.

What is not generally known about the NFA was that Cummings initially put handguns on the ‘prohibited’ list. These particular products were then removed from the NFA list before the bill became law. Now it is usually assumed that the decision to let Americans have free access to handguns (thus creating the contemporary problem known as ‘gun violence’) was because of successful lobbying by the NRA, as well as the genuine love and devotion that our culture promoted regarding the existence and use of guns.  More crap.

The reason why the U.S. government didn’t disarm the civilian population in 1934, whereas other Western governments disarmed their civilian populations shortly after World War II by copying the NFA but putting handguns and semi-automatic rifles on the ‘prohibited’ list, is because America was the only industrialized country whose political system hadn’t been threatened by armed, mobilized, mass protests from the Left.  We were the only advanced country whose labor movement wasn’t tied to revolutionary Socialist and Communist political parties; we were the only advanced country which never suffered from violent, countrywide work stoppages and strikes; we were the only advanced country in which personal ownership of weapons wasn’t ever considered to be a threat to the security of the state.

What I find so funny and ironic about the dopes walking around with an AR slung over their shoulder and tell us that it’s the gun that keeps them ‘free,’ is that these are the same jerks who tell you that they need a gun to protect themselves from the ‘tyranny’ of government, except that the current government adopts and promotes social and economic policies which happen to be based on what that same government believes will be supported by the more guns = more freedoms crowd.

The first and last time a President believed that protestors outside the White House represented a threat to law and order was when the President was named Nixon and remember what happened to him. Now maybe the idiot in the Oval Office also represents a threat to the Constitution,  and if so, he’s a much bigger threat to the country than all the noise and nonsense coming from the NRA.

 

 

Is Kennedy’s Retirement A Win For The Gun-Rights Gang? I’m Not Sure.

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Just when it looked like the storm that erupted after Parkland created the possibility of a shift towards more regulation of guns, the announcement was made today that Anthony Kennedy is retiring, which gives Draft-dodger Trump an opportunity to fill another SCOTUS seat. And since Trump has said again and again how much he wants everyone to be armed, or at least everyone who marches around with one of those ‘Don’t Tread on Me’ flags wrapped around their AR, he’ll probably nominate another pro-gun judge again.

kennedy              Not that Kennedy was such a staunch advocate for gun control. In fact, he was the 5th and necessary vote in the 2008 Heller decision which gave every God-fearing and law-abiding patriot the right to keep a loaded and unlocked handgun in their home. Note that when the city of Highland Park designated itself as being AR-rein, meaning that a town resident who owned an AR had to move somewhere else or sell the gun, Kennedy joined 6 other justices in refusing to hear an appeal of that case. So, the fact that Scalia was able to cobble together 4 other votes to dump the 1939 Miller precedent and detach handgun ownership from military service, doesn’t mean that a majority of the Court, even with a conservative replacement for Kennedy, would necessarily open the legal floodgates and let every cockamamie attempt to lessen gun regulations become a law.

On the other hand, Trump is such a jerk and a dope that for all we know, he’ll nominate Michael Cohen for the Court.  After all, I don’t think there’s anything in the Constitution which says that someone can’t be nominated who has been indicted, or convicted, or disbarred.  And when you stop and think about it, what better way could Trump demonstrate to his loyal, God-fearing base that he shares their complete hostility towards anything having to do with the practices and traditions of civil government or a government based on law?

Think I’m kidding?  I’m really not. And the reason I’m not kidding is that when you get right down to it, Gun-nut Nation’s increasing obsession with armed, self-defense, eliminating gun-free zones and teaching teachers how to use a gun resonates best with people who have decided that between gay marriage, LGBTQ rights, choice, and a few other loony, left-wing ideas like how vaccinations cause mental retardation, the best government is one that doesn’t exist at all.

And by the way, there are a lot of people out there who more or less share that point of view, or at least they take it seriously enough to believe that the only thing which stands between them and a complete breakdown of the social order is getting and keeping their hands on a gun.

Now I’m not saying that these folks represent a majority of Americans, nor do I believe that a New York Times reporter had his head anywhere other than up his you-know-what when he decided that the daily criticism of Trump was just making it easier for America’s Whiner in Chief to attend to the tasks at hand. In fact, without realizing it, Kennedy may have given the #resisttrump movement exactly the shot they need to show up in November and turn the Congress blue. After all, replacing Scalia with a like-minded jurist to keep the 5-4 conservative SCOTUS majority was a strong factor in bringing out the 2016 Republican vote. Why shouldn’t 2018 be a repeat in reverse?

Since the tragedy at Parkland, the gun violence prevention (GVP)  movement has certainly been out in front of the other side. Whether this energy could be sustained until November was a question in my mind, but the issue of replacing Kennedy could be exactly what the GVP needs. Because there is no issue which symbolizes the philosophical tilt of the Supreme Court more than the issue of gun ‘rights.’ Which puts our gun-control friends smack dab back in the center of the mid-term campaign. Which couldn’t happen to a more deserving bunch.

Can We Use The 2nd Amendment To Regulate Guns? We Sure Can.

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Today our friends at The Trace are marking the 10th anniversary of the Heller decision with an interview about the impact of the decision with Eric Segall who teaches Constitutional law at Georgia State. The gist of the interview is that while the NRA scored a major victory by getting the Miller decision reversed, gun-control advocates could also breathe a sign of relief because Scalia’s opinion still gave government broad authority to regulate guns.  And since Heller, the ability of the government to maintain its regulatory authority has been challenged again and again, but the basic ability of public authorities to decide whether guns are a risk to community safety has remained intact.

2A            Segall’s incisive and accurate comments notwithstanding, the post-Heller gun ‘rights’ discussion always seems to avoid what I consider to be the most important issue embodied in the text of the 2nd Amendment itself. The relevant text says: ‘the right of the people to keep and bear arms shall not be infringed.” Scalia’s 20,000-word majority opinion spends 19,950 words on a textual, historical and legal analysis of the words ‘keep’ and ‘bear.’ But his concern about how to define the word ‘arms’ covers only 50 words and wasn’t even mentioned by the minority opinions filed by Stevens and Breyer in the case.

The reason that Scalia didn’t spend any time discussing the meaning of the word ‘arms’ was that he and his Supreme Court colleagues all agreed that the 2nd Amendment referred only to weapons that are in common use today, which means that what are referred to as ‘weapons of war,’ i.e., military guns, aren’t covered by anything having to do with the 2nd Amendment at all. This is all well and good except for one little problem entirely ignored by the Court, namely, that most of the civilian-owned guns which are currently used both for self-protection as well as for committing gun violence happen to have been designed for the military and are still used by military forces both here and abroad.

The most popular handgun sold in the United States is manufactured by Glock, which was designed for the Austrian Army, and is now carried by American troops in the field. The gun which replaced the U.S. Army’s historic sidearm, the Colt 45 pistol designed by John Browning in 1907, is the Beretta 92, which is also a favorite handgun sold to civilians throughout the United States. Last year the Army phased out the Beretta 92 and replaced it with the Sig P320; the manufacturer celebrated the award by immediately making and distributing to wholesalers and retailers 50,000 units of the exact, same gun.  And by the way, the Colt 1911 pistol, which was the Army’s official sidearm for more than 60 years, has also probably been the single, most popular handgun ever to get into the hands of all those gun nuts who now have Constitutional protection to keep any non-military handgun in their homes.

The bottom line is that there is nothing in the Heller decision preventing public authorities from banning just about every, popular handgun model based on what the Heller decision actually says and doesn’t say. The one time that a public authority actually banned the ownership of a military-style weapon because it was too lethal to be kept around, was when the town of Highland Park passed a ban on AR-15 rifles after Sandy Hook, a move now being considered in other Illinois communities as well. The Highland Park decision was appealed up the judicial ladder but was upheld at the Circuit level and the SCOTUS refused to intervene. Less-restrictive bans on AR rifles in CT and NY have also been upheld.

For all the talk about how the gun industry has been exempt from consumer product review and protected from torts, when the issue of regulation turns on the lethality of their products, the gun ‘rights’ gang hasn’t done very well. When our friends in the gun-control community sit down to plot their strategies, they should keep this in mind.

What The 2nd Amendment Means And Doesn’t Mean.

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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.

 

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