Category: 2nd Amendment

Law professor Garrett Epps notes that the Second Amendment is “spectacularly unhelpful.” Second Amendment scholars have honestly settled a lot of this ambiguity. I also particularly resent this subtle dig in his conclusion:

It is thus in the interests of everyone concerned with the role of firearms in society to contribute more than images and myths to a reasoned resolution of this question—and during such discussions, perhaps we should all keep our hands where others can see them.

The implication that our scholars have been dishonest and argued only through “images and myths” is insulting and unfounded. We ultimately won at the Supreme Court because we had better and more thorough scholarship on the issue, and could answer the criticisms of the other side argument by argument.

It is amazing to me that no one had any difficulty figuring out the meaning of the Second Amendment until the 20th century, when gun control started to become popular. Dave Kopel has a pretty good account of how the collective rights myth came about. Maybe we should keep our hands where others can see them, but not because we deal in myth and images. Those who have opposed the “standard model” of the Second Amendment are the ones who have been engaged in the real myth making.

Madigan makes a motion to dismiss the case as moot, since the state has fixed the problem. Plaintiffs say, “not so fast,” and request the State of Illinois be enjoined from enforcing the newly passed FCCA until the permitting system is in place and operating “in a timely manner,” as mentioned in the motion for injunction. There’s also a motion to expedite briefing on the motions, so we can get this over with quickly and prevent the State of Illinois from dragging its feet even further. It would be a good incentive for the State to get everything set up quickly. Otherwise I’d expect they’ll drag this out as long as possible. From the response to the motion to dismiss:

The Plaintiffs’ Second Amendment rights have been violated each and every day since December 11, 2012, when the Seventh Circuit reversed this Court and held that the UUW and the AUUW violated the Plaintiffs’ rights …. Indeed, they have been violated each and every day since Illinois enacted its carry ban …. The FCCA makes plain that said violation of Plantiffs’ rights will not cease for up to another 270 days — 180 days to make application forms available and another 90 days to process said applications…. The State has effectively given itself that which the Seventh Circuit refused — a further stay of the appellate court’s mandate… The violation of the Plaintiffs’ Second Amendment rights occurred today and will occur tomorrow and each and every day until the expiration of the 270-day stay that Illinois has given to itself in the FCCA. The Defendants cannot meet the first prong of the voluntary-cessation test described above.

Nope. This isn’t over. Not by a long shot folks. These people need to start understanding this is a right, and not a privilege. This all could have been easily avoided by passing a reasonable shall-issue bill as soon as the court ruling came down. But that’s not what many Illinois Democratic leaders chose to do. They chose to stall, whine, kick, scream, delay, and obstruct. Well, the wages of that might be FOID carry until they can get their act together. Let us hope.

This is a victory for federalism, but also kind of unfortunate from a gun right point of view, because it dashes my dreams of subjecting New Jersey, New York, California, et al to pre-clearance for gun laws and regulations. Though, it looks like there may still be room for hope. From the opinion:

That is why, in 1966, this Court described the Act as “stringent” and “potent,” Katzenbach, 383 U. S., at 308, 315, 337. The Court nonetheless upheld the Act, concluding that such an “uncommon exercise ofcongressional power” could be justified by “exceptional conditions.” …

… The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. The Court explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetratingthe evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid. The Court therefore concluded that “the coverage formula [was] rational in both practice and theory.”

In other words, when state and local governments are unable to behave themselves, and respect the rights of their citizens, it may justify such far-reaching congressional intervention such as a pre-clearance requirement. Meanwhile, the anti-gun people like Mike Bloomberg, Mayor Rahm, and other members of the merry band of illegal mayors are doing their level best to create those very “exceptional circumstances” that may justify this sort of intervention. So I think I will declare my dream is not dead.