2nd Amendment – Page 20 – Shall Not Be Questioned

Drawing a Blank on the Bill of Rights

I doubt most Americans could name you which of the Amendments in the Bill of Rights protect which rights, but most Americans aren’t members of Congress:

“I’m drawing a blank on the Second Amendment, but I think it’s the weapons, isn’t it? The NRA?” he said, according toÂ The Monitor.

If I ever get to establish Sebastianland, the first rule for holding office in Sebastianland will be to name each of the Amendments in the Bill of Rights and tell me what right they protect. I think that should be basic, required knowledge for being a member of Congress. How can I expect a person to uphold their oath of office if they don’t even know the document?

I sometimes think the biggest flaw in the Constitution is that we didn’t have more provisions to try to keep morons from holding public office. If you had to devise a constitutional system that filtered for morons, how would you do it?

h/t to Cam Edwards of Cam & Company

Oral Arguments in the Woollard Case

This is the challenge to Maryland’s restrictive carry laws, that won in District Court, and are on appeal to the 4th Circuit Court of Appeals.Oral arguments happened yesterday. We do not yet have full oral argument audio or transcript, but press accounts can found atÂ the Baltimore Sun.

A New 2A Blog

Before I get too hard on Fordham University, it is the school where Nick Johnson teaches, who e-mailed yesterday to mention he’s started blogging. The more the merrier. He also has aÂ Federalist Society faculty podcast out on the, very first of its kind, textbook on Second Amendment law, which Professor Johnson co-authored along with Professors Dave Kopel, George Mocsary, and Michael O’Shea.

Jindal: “It’s time we protected gun rights.”

Louisiana Governor Bobby Jindal has an op-ed on the need to pass Amendment 2 in November. I appreciate that he broke it down to explain it to those who just assume that gun rights are “protected” without really knowing anything about the legal debates:

Simply put, this amendment to Louisiana’s Constitution acknowledges the fundamental right to keep and bear arms for legitimate purposes, and it requires any restriction on gun ownership be subject to strict scrutiny.

It’s our own Second Amendment, if you will, a new constitutional provision to repair the damage done by past judicial interpretations. You see, over the years, Louisiana courts have applied a “rational basis” legal standard to interpreting our right to bear arms. In reality, that means that the state has almost unlimited authority to confiscate, prohibit or infringe on this fundamental right. Make no mistake, I have no intention of allowing such a bill to leave my desk without a veto, but our liberties should not be held hostage to whims of future legislators and governors. By applying the “strict scrutiny” test, we elevate the protections in our constitution to the same level we provide our right to free speech.

Jindal also goes into the arguments about the federal courts being only vote away from rewriting the Second Amendment and what Congress has done to try and keep some of the assaults on gun rights that happened after Katrina from happening again, but the theme is definitely that Louisiana needs its own protection of the fundamental right just in case the whims of Congress or the federal courts change. I hope that gun owners who don’t normally follow the issue closely down there get a chance to read this piece.

It Doesn’t Matter What You Think, It Matters What They Think

From the Brady Center event, I think it’s worthwhile to point out a question asked by the Center to Justice Stevens on the subject of those horribly, wrongly-informed American people who believe they have rights even though the Brady lawyers know better:

I don’t care how long I’ve been working the activism side for this issue, it will never cease to amaze me the sheer number of gun owners who believe that just because they – and likely all of their friends and family – believe something to be a right, it’s protected by the legal system. That’s simply not true. When it comes to keeping gun ownership legal, it really doesn’t matter what the founding documents actually say. All that ultimately matters is how the government interprets it and enforces any laws they pass on the issue of gun ownership.

It kind of reminds me of a story I was told by a Massachusetts gun owner who was talking to a Pennsylvania gun owner at the NRA convention in Pittsburgh back in 2004. After hearing about the variety of gun laws there and the licensing nightmare that determines what kinds of guns you’re allowed to own and how you can use them, the Pennsylvania guy just responded with, “But this is America!” Yeah, buddy, it is America. Welcome. I just hoped he started paying more attention to the issue after hearing those stories.

Phony Baloney Fact Checkers

I’m not sure how you can maintain credibility, when you investigate a claim like “NRA attacks Bill Nelson for voting to confirm Sonia Sotomayor to Supreme Court,” which is pretty much a yes or no proposition, and a matter of public record, and then rate it as “Mostly True” instead of absolutely and irrefutably true. So why the “Mostly?”

What’s missing from this attack is the context that Nelson voted to confirm Sotomayor before she signed the opinion inÂ McDonald.Â That context slightly dulls the connection between Nelson and Sotomayor’s position.

Um, no it doesn’t. Sotomayor had already ruled on a Second Amendment case in her capacity as a Judge sitting on the 2nd Circuit Court of Appeals. That case was Maloney v. Rice, the well-known Ninchaku case. In the opinion she joined, the 2nd Circuit refused to recognize the Second Amendment as applying to the states:

The Fourteenth Amendment similarly provides no relief for Appellant. “Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if `rationally related to a legitimate state interest.'”

So she ruled the Second Amendment was not protecting any fundamental right, essentially. This is what NRA’s opposition to her confirmation was based on. This is not a mostly true proposition, it is completely true, and there was ample basis for belief that Sotomayor was not friendly to the Second Amendment. This is just a hatchet job on the part of the media, and it’s not surprising.

The Founders Who Didn’t Believe in Self-Defense

You hear now, from the gun control groups (or is that group at this point) who do not accept Heller, and deride it as without historical basis, that our founding fathers did not create the Second Amendment with self-defense in mind, and there is no evidence the Second Amendment was about that at all. The true answer is that there were no founding fathers who disagreed with the idea that a person had a right to a firearm for self-defense. In 18th Century America, it would have been like announcing the sky is blue. So they argued about the things they did disagree on, like the distribution of military power in the new republic. Our opponents enjoy acting like this argument is a cop out, and that our side has never presented evidence. This could not be further from the truth. Do these appear to be men who find the notion of carrying arms in self-defense unusual?

I left at your house, the morning after I lodged there, a pistol in a locked case, which no doubt was found in your bar after my departure. I have written to desire either Mr. Randolph or Mr. Eppes to call on you for it, as they come on to Congress, to either of whom therefore be so good as to deliver it.

A gun in a bar? For shame Mr. Jefferson! Clearly you must have gotten drunk and shot the place up. But it does beg the question of why Jefferson had a pistol on his person. Perhaps he merely was transporting it?

I left at Orange C. H. one of my Turkish pistols, in it’s holster, locked. I shall be glad if either yourself or Mr. Eppes can let a servant take it on to this place. It will either bind up in a portmanteau flap, or sling over the back of the servant conveniently.

Of course, one normally does not transport in a holster unless one is carrying for purposes of self-defense. Of course, this is when Jefferson was President, so maybe they view that he was authorized, or something. I mean, they didn’t have any secret service back then. Also, Jefferson was kind of a nut. Surely the federalists were more level headed, right?

Resistance to sudden violence, for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps, I could not surrender if I would.

John Adams, Boston Gazette, 9/5/1763

But that was before the Constitution, way before. Surely Adams’ views matured as he considered the Second Amendment.

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.

John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)

Well, that sounds like Adams endorsing the Heller view of the Second Amendment to me. But OK, so we have Jefferson and Adams. Big deal. Surely Washington didn’t need to compensate for anything by carrying a gun around with him?

As was then the custom, the General had holsters, with pistols in them,Â to his saddle. On returning to Mount Vernon, as General WashingtonÂ was about to enter on this private road, a stranger on horseback barredÂ the way, and said to him, â€œYou shall not pass this way.â€ â€œYou donâ€™tÂ know me,â€ said the General. â€œYes, I do,â€ said the ruffian; â€œyou areÂ General Washington, who commanded the army in the Revolution, andÂ if you attempt to pass me I shall shoot you.â€ General Washington calledÂ his servant, Billy, to him, and taking out a pistol, examined the priming,Â and then handed it to Billy, saying, â€œIf this person shoots me, do youÂ shoot him;â€ and cooly passed on without molestation.

Never a good idea upset George Washington. You never know when he might have his servant shoot you. It’s pretty clear that a broad swath of our founders, either through words or actions, believed in the right of self-defense, and believed in guaranteeing the idea of keeping and bearing arms for that purpose. These are a few things I’ve been able to find. Further evidence can be found in “The Founders Second Amendment” by Steven Halbrook.

Insurrectionist Quote of the Day

I’ve never really wrapped my head around why the Coalition to Stop Gun ~~Ownership~~ Violence feels the need to create a warped and ahistorical version of the Founding Fathers, and then try to pass themselves off as the true guardians of the Founders’ vision. The typical reaction from lefties is why we should pay any heed to what 18th century slaveholders had to say about anything, and is perhaps a more defensible position intellectually than making up your own history. I’ve always liked this quote from Thomas Jefferson, in a 1787 letter to James Madison:

Societies exist under three forms sufficiently distinguishable. 1. Without government, as among our Indians. 2. Under governments wherein the will of every one has a just influence, as is the case in England in a slight degree, and in our states in a great one. 3. Under governments of force: as is the case in all other monarchies and in most of the other republics. To have an idea of the curse of existence under these last, they must be seen. It is a government of wolves over sheep. It is a problem, not clear in my mind, that the 1st. condition is not the best. But I believe it to be inconsistent with any great degree of population. The second state has a great deal of good in it. The mass of mankind under that enjoys a precious degree of liberty and happiness. It has it’s evils too: the principal of which is the turbulence to which it is subject. But weigh this against the oppressions of monarchy, and it becomes nothing. Malo periculosam, libertatem quam quietam servitutem. Even this evil is productive of good. It prevents the degeneracy of government, and nourishes a general attention to the public affairs. I hold it thatÂ a little rebellionÂ now and then is a good thing, and as necessary in the political world as storms in the physical.

Note the Latin phrase “Malo periculosam, libertatem quam quietam servitutem.” which translates into “I’d rather have a perilous liberty, than a peaceful servitude.” Now, you’d think if CSGV’s vision of the Founders were correct, Madison would have scolded Jefferson’s insurrectionist ideas, but he never did. That’s the real intellectual problem with CSGV’s, quite frankly insane ramblings on history. You have all these founding fathers writing about ideas that were supposedly, in their world, an anathema, yet you never see them arguing with each about it. In CSGV’s world, our Founders overthrew the British crown, and then renounced insurrectionism. Unfortunately for them, the historical record just does not back up their assertions. I will do a series of these quotes, since gun news is slow, laying out the fact that our Founding Fathers were, in fact, most concerned with preserving the right of their people to free themselves from the yoke of tyrannical government.

CSGV often asserts that never in the Constitutional debates did the Founders mention individual self-defense as the core of the right. This is true. The core of the right, from their point of view, was that an armed population would act as a check on the power of the central government. If this version of the Second Amendment were adopted by the Courts, it would have implications that CSGV would no doubt be appalled by, such as protections for machine guns and man-portable weapons like rockets, and anti-tank missiles.

Constitution Day at the Local College

Sorry for the lack of posts this morning, folks. We spent our morning preparing for and afternoon attending the Constitution Day Fair at Bucks County Community College. They invited us to set up a table as NRA volunteers, alongside many other groups such as Students for Sensible Drug Policy, Lower Bucks Young Democrats, Bucks County Republican Party, Libertarian Party, Young Americans for Liberty, NORML, and even Occupy Wall Street. (I know I missed a couple of groups, but that just shows the range of organizations invited.)

Not that many people came by the fair, but a few folks came in to check everything out. Interestingly, any group that was either right-of-center or focused on talking about the Constitution had candy to give away. The Democrats and groups that one would normally consider left-of-center didn’t want to share candy with attendees.

We did speak with a guy who said he was writing an article for the school paper. He was mostly interested in confirming what he had heard that NRA endorses both Democrats and Republicans. We talked a bit about that history, and he took notes on the fact that NRA sends questionnaires to new candidates and grades incumbents based on voting records and questionnaires.

Ironically, our visit from a guy who said, “I support the Second Amendment, but…” was actually a Republican. He wants to ban semi-automatics. I assumed he was confused, but he did comprehend that they only fired once with each pull of the trigger. We didn’t pursue the discussion too much beyond that because I don’t know how far you can bring a person who wants a Second Amendment that allows banning guns people actually own. To make it even weirder, he said his dad is an NRA member. While this guy did know that one round is fired with each pull of the trigger, he was convinced that he could do some kind of spray shooting without aiming and hit moving targets even if he didn’t really know much about shooting guns. I guess it just goes to show you that you need to make sure you kids really understand how firearms work.

We also had a visit from a woman who wanted to know where she could get shooting lessons because she views learning the basic handling of firearms to be a safety issue – just like learning how to swim or any other personal safety concern. We, along with one of the Young Americans for Liberty guys, gave her several recommendations.

Perhaps some of the most interesting conversations overheard during the event when our table didn’t have visitors came from the Democratic representatives. Apparently, George Bush is running for President this year. Oh, wait, he’s not? You would not have known that to listen to their pitch. At this point, I wonder if some future history books will actually have mistakes listing either the election of 2008 or 2012 as Obama versus Bush.

As you can see in the pictures, we gave out Twizzlers. Given the pretty sparse crowd of visitors, they were actually pretty popular. College students love candy, and at less than $8 for 180 Twizzlers, it was a cheap and easy way to get people over to the table. A few of the students even picked up the bumper stickers.

We had several students and a couple of the staff come up just to thank us for coming out and representing the Second Amendment at an event like that. In fact, they now have interest in doing more events that feature policy debates and representatives of different sides of political issues.

While this event wasn’t huge for getting lots of new volunteers signed up, it was absolutely useful in reminding folks that the “gun lobby” is people. It’s 4 million NRA members who care about our rights. It’s even college students today who wanted to talk guns, but are still saving up for an NRA Life membership. We are real, and we do vote. We’re not representatives of some gun company as the anti-gun groups want to argue. We’re just average folks who care about Constitutional rights.

New Federal 2nd Amendment Challenge?

Been involved in a lengthy bit of Devil’s advocacy with a “Constitutional Historian” involved in “a case in the works right now, well-research, and narrowly tailoredÂ that uses Presser, Miller, Heller AND McDonald to overturn NFA & Hughes Amendment. Brady/GCA areÂ next to get struck down by the Roberts Court.”Â That’s generally enough to set off major alarm bells right there. But when you follow up with, “[Alan Gura]Â lacks complete understanding of the historical premises’ surrounding the 2nd Amendment’s ratification and early case-law,” that really sets off alarm bells.

The diminishment of proven experts, and the elevation of unproven experts, is part and parcel for those who bring bad cases. Additionally, any suit so broad, and depending on cases like Presser v. Illinois, which said precious little about the Second Amendment, and US v. Miller, which was a deeply flawed case to begin with, is pretty much destined to quickly start setting bad precedent the rest of us will have to either live with, or spend a long time waiting to undo.

Taking a machine gun case into the Court system right now is madness. Others have tried it and lost, and now no one in the 8th circuit will ever have machine gun rights. Fincher was convinced he was right, too. That doesn’t win cases.Â What makes cases like this even more aggravating, is if one of the Heller 5 retires or dies, this kind of case would be the perfect opportunity for Justice Ginsberg to get what she wants; a reconsideration of Heller and McDonaldÂ which results in their being reversed, and the Second Amendment being redacted from the Bill of Rights entirely. We are our own worst enemies.