2nd Amendment – Page 24 – Shall Not Be Questioned

I’m Beat

I am just plum out of energy from the weekend. This was one of those events, much like NRA Annual Meeting, where you’d rather stay up and talk to people than go to bed. An early start to the events meant only a few hours of sleep a night. I had to start a new work engagement today, so that added up to not much energy for posting, despite having a lot to say. Let me relay some further impressions.

I hadn’t seen Clayton Cramer in person since Heller. To say he’s a font of knowledge about American History is a serious understatement. The depth of research he’s done on behalf of the issue is remarkable, and he can recall obscure facts on command at a detail rarely achieved.

The other fun fact from the weekend is that Professor Nick Johnson, who is co-author on the new Second Amendment law textbook–the first of its kind–along with Professors Michael O’Shea, Dave Kopel, and George Moscary, is a member of the local shooting club I am an officer for, and lives relatively close to me in Bucks County. Apparently he’s had Professor Moscary as a guest at the club, who commented to me how nice the facilities are.

It’s a small world, folks. My club has its roots in the working class neighborhoods of Levittown, and yet you never know when you might find yourself shooting next to a distinguished professor of law. I’ll be speaking more about Professor Johnson’s law review article later, which attacks some common misconceptions about the civil rights movement’s view of non-violence, which is a challenge to the now prevailing view. It’s really quite fascinating.

2A Scholars: The Next Generation

Anyone who’s aware of the history of the black civil rights movement knows that it was a multi-generational struggle. There’s little reason to believe that the movement to protect the civil right of keeping and bearing arms is going to be any different. The greats of our movement, who laid the scholarly foundations that made the successes in Heller and McDonald possible, are unfortunately getting old. It is necessary to incubate and foster a new generation of legal minds to continue the scholarship necessary to take this struggle well into the 21st century. It is with this in mind that I spent the weekend as a guest to NRA’s Civil Rights Defense Fund.

The CRDF hosted a seminar for up-and coming legal scholars, hosted by the very people who put Second Amendment legal scholarship on the map, and made the “standard model” the mainstream viewpoint. It featured lectures from Don Kates, Dave Hardy, Joyce Malcolm, Bob Cottrol, Dave Kopel, Nick Johnson, Steve Halbrook, and several others folks who I will feature as I speak more about the weekend in upcoming posts. I should note that if the caliber of people I met this weekend is any indication, the Second Amendment will be in good hands. As someone with no formal legal training, I certainly felt out of my league. The seminar attendees came from all four corners of North America. From Maine to Florida, over to California, up to Idaho and onward to Alberta. Yes, we even had a Canadian attendee.

I’ll have more to relay as the week progresses, but while the Brady Campaign were busy lighting candles to mourn the passing of their relevance, we were busy trying to secure the future of Second Amendment scholarship. This was a first of its kind event, but if this weekend is any indication, I’m very optimistic for future successes.

Protecting Technology

The Second Amendment is a bit unique among our constitutional rights. In order to protect some rights, our Constitution places obligations on the government, as is the case in Fifth Amendment, which requires to government to indict via grand jury, and the Sixth Amendment, which requires the government to provide “a speedy and public trial, by an impartial jury.” The rest of the Amendments generally forbid the government from doing things, like infringing on speech, quartering troops, or inflicting cruel and unusual punishment. The Second is not different in this regard, but I’ve heard some of our opponents in the gun control movement try to argue the Second Amendment has to be a unique case because it protects dangerous objects, and no other amendment protects objects. In that context, I find this recent law review by Eugene Volokh interesting, in regards to what constitutes “the press.”

But other judges and scholarsâ€”including the Citizens United majority and Justice Brennanâ€”have argued that the â€œfreedom . . . of the pressâ€ does not protect the press-as-industry, but rather protects everyoneâ€™s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Professor Volokh’s review takes a look at early case law, and demonstrates that protection of the press as a technology is the predominant one in American jurisprudence. It is actually surprising how much the early media resembled what’s grown organically from the Internet.

But it shows that the Second Amendment is hardly unique among rights in protecting the right to own an object. Implicit in freedom of the press is the right to own one, or the modern equivalent, which would be a computer, and an Internet connection. Computers and Internet connections can certainly be subject to heinous abuses, such as distribution of child pornography. One could even imagine it possible to kill many people by hacking into the right public works systems and disrupting them.

Yet, in most cases, the Government is quite limited in how it can restrict access to the press. Could the government ban child molesters from owning a computer? From an Internet connection? Actually, this is an active issue, currently. But far from being an extreme point of view, it’s completely justifiable to question whether the government can require a license for owning a firearm, when it can do no such thing for a printing press or a computer. Could the government even subject computer buyers, or Internet subscribers, to an instant background check? That’s probably of dubious constitutionality. So why is it to radical to suggest guns be treated in the same manner? It is only radical because our opponents, who are extremists, say it is. But in the realm of constitutional law, it’s a legitimate question.

On Attorney’s Fees in Second Amendment Cases

Countertop explains, in a comment, how attorneys fees are generally awarded, which suggests that the 1.1 million award to Alan Gura is actually pretty good, considering. But it was important to go after as much as possible. Not only to reward good work, but also, and perhaps more importantly, to discourage other municipalities from resisting our cause when we file lawsuits. I am hoping that the 1.1 million award here is sufficient to accomplish that, even though I would have been tickled pink by a higher amount. The best outcome upon a municipality or state receiving a Second Amendment suit is to fold immediately. We’ve seen that happen already, and I hope the award here will further those results.

To the Terror of the People

SayUncle has the background on the case of Embody v. Ward, in regards to an SAF brief that must be read if you’re into all the detailed legal stuff. Generally speaking, in common law it was an offense to go about armed to the terror of the people. Blackstone was never remarkably clear about exactly what that meant, but in the modern context Embody probably falls into that category.

The District court reached that the Second Amendment right was limited, not applying in public parks. SAF’s brief essentially argues Embody can be disposed of without having to so limit the right. From their argument:

Heller’s recognition of a right to carry a handgun does not force states to allow the carrying of handguns in a manner that may cause needless public alarm, so long as a more socially-conductive option exists to allow people to exercise the right to bear arms. But once a legislature determines that only a particular manner of carrying will be permitted, that choice must be honored.

No doubt they are going to take some heat for that statement from people who fail to grasp the implications of fighting this battle out in the courts, but I think their chosen strategy here is a wise one, that comports with the original common law conceptions of the right, and how it’s been implemented in the American tradition. The state may regulate the manner of carry, but may not outright prohibit it. Under SAF’s standard here, it would be questionable, for instance, about whether New Jersey could, say, ban all but open carry, since it’s pretty obviously not the “more socially-cunductive option” in regards to the exercise of the right. But under this standard, New Jersey could ban open carry.

For folks who don’t like this, you can thank Leonard Embody. Now the game is to try to undo the damage he has already done, and I think if SAF’s brief is influential with the court here, it’s the best way to accomplish that.

An Important Harbinger of Things to Come

It looks like the GOP held together on a filibuster for a strongly anti-gun judge Obama wanted to appoint to the DC Circuit. This greatly pleases me, because it means we can likely defeat a Supreme Court nominee as well. The great difficulty is that you’ll likely never get a pro-Second Amendment candidate out of Obama, but he will be at least forced to find someone who’s never said anything about it, in which case we at least both roll the dice, rather than just letting Obama pack the Court with people we know will be against us.

Now It’s Art

An art project on the Second Amendment.

I’ll Leave it to Readers …

… to dissect this bit of ignorance. I love how none of these wise and learned pundits ever mention a damned thing about the Supreme Court. They are more interested in showing everyone else how smart they are, rather than conceding that when it comes to who Obama is going to put on the Court, we might actually have a point in opposing a second term.

If Kagan posts a pro-2A opinion, I’ll shut up, but I’m not holding my breath.

Challenge to Post Office Ban Moving Forward

I don’t expect this to end well. Even though the Post Office is a quasi-governmental organization, the dicta in Heller about “government buildings and sensitive places,” I’m afraid will mean this suit goes no where. I’d like to be wrong though.

Supreme Court Turns Down Masciandaro

John Richardson has the detailsÂ on the Supreme Court’s refusal to hear the Msciandaro case. This was in the 4th Circuit Court of appeals, where a guy got arrested for sleeping in his car on National Park property while having a loaded gun in his car, so he challenged the law under the Second Amendment.

If I had to wager, I’m betting (hoping) the Supreme Court is looking for a clean and well constructed carry case.