March 2014 – Page 9 – Shall Not Be Questioned

Discussion of the Constitutionality of Magazine Limits

Eugene Volokh discusses the issue. I’m sorry to say, because I otherwise think Eugene Volokh has made great contributions to the Second Amendment, but I really think this kind of concession is unhelpful to those of us who want a broad and meaningful Second Amendment right.

I couldn’t disagree more that such limitations are constitutional, at least as far as magazines holding more than ten rounds are commonly used and possessed by law-abiding citizens. Additionally, every state law limiting capacity exempts the police, who use them for self-defense the same as civilians do. For someone who has three intruders break into their house, and runs her magazine dry before stopping her attackers, that person’s Second Amendment right might not as well have existed at all if the state may arbitrarily limit her magazine capacity to ten rounds.

It may, under most circumstances, be a relatively light burden on the right, but I wish Professor Volokh would not concede that there’s a state interest in restricting magazine size to even balance against whatever minor burden it may place on Second Amendment rights. The very fact that police are exempted should call into question the motives in regards to enacting such legislation, which is transparently a hostility toward the concept of an armed civilian population.

We should not concede any state interest here, and then encourage the courts to take an interest balancing approach, where they analyze the burden on the right, and weigh that against the state interest. We’ve seen so far that those kinds of interest balancing approaches will always be weighed in favor of the state when Second Amendment rights are involved.

Firearms with magazine capacities over ten rounds have been commonly selected by civilians and police alike for self-defense virtually since the technology became available, more than a century ago for rifles, but more recently for handguns. It’s not the place of the courts to determine whether such preferences are rational or not. The state may simply not arbitrarily apply these kinds of limits if the Second Amendment, as a right of the people, is to have any real meaning.

News Links: Got Nuthin’ Edition

It’s a slow news day folks. After a pretty good beginning of the week, the end of the week is looking, well, weak. I’m struggling here just to offer some news links:

Good show from a Chicago Police Officer who was off duty when he was robbed. Notice how he takes back the initiative from the robbers like a boss.

It’s looking possible to topple Malloy in CT, and even Hawaii is in play. Booting Malloy would be a great victory for gun owners. Tom Foley seems to be a bit tepid on the gun issue, but is making overtures at least toward the gun vote. Booting the person who screwed you still has value.

What other rights should be restrict with subjective standards?

Illinois IGOLD rally for 2014 was yesterday, and Thirdpower has pictures. Some drop off from previous years, but not nearly as much as I would have expected given that they got concealed carry this year. Stay hungry, Illinoisans, you still have a lot of improvements that need to be made.

Another boner of an article from Lt. Col. Robert Bateman. Ted Nugent sure is a good foil for the other side.

AR-15 giveaway stirs outrage in New York. Even the world’s ugliest AR-15 is too much for them. That should tell you something.

Apparently the Dems are doing all they can to defend their gun control policies in Colorado. I’d note that 6200 is way way way off the 40% these doofuses were floating around when they were hawking the bill. Either that number of bogus, or, like in Connecticut, there’s massive non-compliance. I suspect it’s a combination of both.

Venture Beat falls for the PR spin of the ridiculous gun control groups. But hey, if they fall for it, then it’s a win. They could probably just make all kinds of victories up and the media would buy it. Meanwhile, the Washington Times calls it like it really is. Robb has a peek at the new interfaceÂ for Facebook.

Peace in our time.

A whole lot of truth being said here. Hopefully people can handle the truth.

Guns aren’t required for mass murder. Good thing no one had any guns or someone might have gotten hurt.

Clayton Cramer on Peruta.

“I will NOT comply”

Rally this Sunday in Montpelier, for those of you in Vermont.

Wayne LaPierre is giving his CPAC speech now. This is usually where the antis get their ad copy for the next few years.

Udall may be in trouble in Colorado.

A Work of Art

I would seriously love to have a chess set like this around the house. Every gun nut needs one of these out on display. (h/t Robb Allen)

Richards v. Prieto Reversed and Remanded

Richards is one of the other cases being appealed through the 9th Circuit in regards to carry. The decision can be found here. The one dissenting judge in Peruta also noted he would have voted to uphold the “good cause” requirement, but agreed with the majority in this case because Pretua is controlling. The suit in Richards was against Yolo County, in the middle of the state.

h/t to a reader who emailed a link to the Calguns forum.

UPDATE: Anyone have anything on the Hawaii case? Looking now.

UPDATE: SAF’s press release on the case.

The PR War Between the Anti-Gun Groups

Moms Demand Illegal Mayors, or whatever the two merged groups are called these days, are declaring total victory in the Facebook/Instagram policy statement that any reported post featuring an offer to sell any regulated product privately will generate a reminder to sellers that they shouldn’t violate the law.

But the Brady Campaign swiftly sent out a letter to their supporters highlighting that the anti-gun groups didn’t get anything they demanded at all, and this is not in any way a victory. The thing is, the Brady Campaign is right on this, at least coming from a gun banner’s perspective.

Remember that what the Moms/Illegal Mayors were demanding was a total ban on any kind of speech/photo that might result in a gun sale. Here are a few screen caps from their campaign:

AntiGunFBDemands2

The result is a clear invitation by Facebook and Instagram to sell & promote firearms using their platforms, just with reminders that they ask their users to follow the law. They also outline very specific language that they will look for and interpret as signals that show sellers may be trying to avoid the law so that sellers have a clear picture of what kinds of promotions Facebook will agree to host and those which it won’t.

The Brady Campaign is clearly pretty pissed off that Facebook has actually spelled out that gun sales, even private transfers that may not require a background check, are okay by Facebook and that their supposed “allies” in this movement are calling the continued sale of firearms, now with guidance from corporate, a victory.

The Facebook & Instagram Gun Speech Ban Issue

Facebook has released their statement on the effort by anti-gun groups to ban speech & photos by gun owners. The other side is going to declare a win because they are recognized by Facebook for their efforts. In reality, the only impact is that if a post gets “reported” as being any kind of regulated product (not just firearms) for sale, the poster will be reminded that they should follow applicable laws.

That’s it. Facebook will pop up a message reminding you that you should follow the law if you post a gun for sale and someone complains to them about it. They won’t ban the speech. They won’t ban the images. They won’t even ban promotions of guns for sale at all.

The only speech-related restriction is that they say they will interpret phrases like “no background check required” as being a possible tip off that the seller may be willing to help others evade the law. They don’t require that private sellers agree to run a background check, just that they don’t make “no background check” a selling point of their firearm.

Under these rules, NRA can still do their gun contests, and local Friends committees can still promote the guns they’ll be giving away to FNRA dinner attendees. You can even still post that you’re going to sell a gun privately. The only thing is that Facebook can tell anyone who complains about the posts that they sent a reminder to follow the law.

If the anti-gunners had truly gotten what they wanted – a ban on firearm images or promotions of any kind – we would have completely pulled our personal and community Facebook accounts and no longer visited the site. I suspect that many of the millions of gun owners on the site would have done the same, and that’s not something Facebook can afford. It is, at best, a pyrrhic victory for the other side.

Opposing the Sandy Hook Riders

From March 8-11, 26 cyclists will pedal from Sandy Hook, Connecticut to Washington DC, and their route will take them through my county. There is a rally planned in Doylestown for this Sunday to protest. I gave some thought about whether or not I will attend, but I am of mixed feelings on the best way to deal with this situation, and I have some reservations about the organizers.

One the one hand, the Sandy Hook riders don’t seem to be getting much attention. They currently rank 5063 “likes” on Facebook, with 632 “talking about this.” Hardly a movement. They also aren’t really pulling down much news coverage, at least as of now. There does come a point where all you’re accomplishing by protesting is helping them make a story and get in the news, when they might otherwise be ignored.

On the other hand, I also think they shouldn’t ever be allowed to occupy the field without being opposed if our side still retains the energy for opposition. They should know they are wading into controversy, and that there are fellow citizens who oppose their political agenda. They shouldn’t be able to get away with making their positions look non-controversial, or trying to pass off an obvious political statement as a memorial ride.

So I’m torn on whether a counter-protest is even the right tactic at all, but if protesting is the right thing, the deciding factor turns on what is the best protesting tactic. In my opinion passive opposition is the way to go here. I don’t think passive opposition is always the correct tactic, but I think it is in this particular circumstance it is. The group organizing this protest is Concerned Gun Owners of PA (formerly Concerned Gun Owners of Bucks County) who are not known for using passive tactics. They are better known for armed demonstration combined with aggressive, in-your-face tactics.

CGOBC sprung up right after Sandy Hook, and I attended several of their meetings and rallies. We attended a few meetings with some of their leaders. The group ended up splitting into two organizations last year, largely due to disagreement about tactics. I soured on CGOBC after the mother’s day rally, especially when they started to generate negative headlinesÂ having one of their leadersÂ photographed screaming in the face of a little old lady. When you’re in a position of strength, as we are now, I think it’s best to behave as if you’re in a position of strength. Passive protest is the right tactic in this circumstance. Just be seen, and have someone ready to speak to the media when they come around. Don’t let the headline become armed protesters show up to intimidate a memorial ride. Unfortunately, CGOPA hasn’t shown (to me, at least) that they are good at using wise tactics.

What Could be Staying the Hands of Connecticut Authorities

UPDATE: Yep. It’s a parody site. It would have been interesting had it been true.

I have no way of knowing whether this is credible or not, but this article suggests that the reason Connecticut isn’t going through their ~~registry~~ record of sales to round up illegal “assault weapons” is because if they did so, they’d have to round up most of their cops.

With in hours a print off of all sworn Law Enforcement officers in the state was obtained. Comparisons of the list of gun owners who failed to comply with registration requirements and sworn LEOs showed a startling figure. Just over 68% of Connecticut cops had failed to register firearms according to the new law.

Of course, if this is true, it means they are running the numbers and thinking about door-to-door confiscation. But I thought the very idea of that made us paranoid whack jobs? These guys really have no idea what kind of fire they are playing with.

UPDATE: Someone in the comments thinks it’s parody. I’ve never heard of this site before, so it’s possible it’s a parody.

No Love for Demanding Moms

Staples apparently asked Mom’s Demand Action to leave their property, as they tried to deliver a petition to the CEO to ban guns from their stores. They claim successful delivery because they managed to deliver it to the security guard. I kind of got a kick out of that tidbit. A real problem that Shannon Watts and MDA have is that they are mouth foamers, and their overly aggressive tactics are likely to turn people off to their message. No one likes to be bullied, or feel bullied. Corporations, quite properly, generally don’t want to wade into controversial political issues, and that’s exactly what Shannon Watts demands of them.

Open Carry: A Prescription for California?

Professor Adam Winkler has an article advocating that California pass an open carry law to keep down the number of guns on California streets:

But if the state allowed open carry, concealed carry could be banned entirely. In the 2008 case, the Supreme Court noted approvingly that courts have consistently upheld such bans, so long as people could carry openly.

I would argue that passing such a law, with the expressed purpose of keeping the number of people exercising their rights as low as possible, would actually be unconstitutional, despite what older rulings might say about concealed carry. I think that would properly constitute evasion.

The courts that allowed restrictions on concealed carry were operating in an environment where concealed carry was strongly stigmatized, and viewed as sneaky and underhanded, while open carry was widely accepted as the socially preferable method of carry. Today, the situation is arguably reversed. That the state may regulate the manner of carry is hardly contested, but the regulation must serve a compelling state interest, and “minimize the number of guns on California’s streets,” as Prof. Winkler mentions, is not among those compelling and legitimate interests.

At the University of Tennessee Symposium on the Second Amendment, this very issue was discussed in the second half of the program about 41 minutes in, by Prof. Brannon Denning. “Anti-Evasion Doctrines and the Second Amendment.” I would encourage everyone to watch the whole thing, but that segment in particular.

I doubt California will go the route Prof. Winkler recommends, but if it does, I agree with Glenn Reynolds that they might discover open carry is not as unpopular as he thinks, when it’s the only option the state allows. And if it does follow the recommendation, I look forward to his LA Times article being cited as an example of such a move being an unconstitutional evasion.