2nd Amendment – Page 32 – Shall Not Be Questioned

Blind Justice

A judge in New Jersey rules that blind people have Second Amendment rights too.

UPDATE: Clearing out my tabs, it seems I forgot how this story was put together. Now let me do it the right way:

A blind gun collector is in Court defending his Second Amendment rights. It looks like this guy has made the news before, when he won his appeal of his FID denial for being blind back in 1994, and once again in 2004 after they tried to revoke him because of a conviction unrelated to firearms possession (being unruly in a bar). Now they apparently want to revoke him because he was the victim of a burglary while he was in the hospital after shooting himself, and while in the hospital was the victim of a burglary.

You don’t have Second Amendment rights in the Garden State, despite McDonald. The time will soon come to put the smack down on this nonsense. Maybe it would be a wise things for Mr. Hopler to give up his hobby, but that should be his choice, not the states.

The Importance of the Kagan Fight

I don’t think that anyone who is an enthusiastic observer of politics ever really believed that NRA was going to successfully derail Kagan. The main problem is,Â considerablyÂ more so than on legislative matters, party plays an important role in those kinds of votes. A vote against Kagan would have been portrayed as a critical failure of the Obama administration, and the word “failed administration” would have been bandied about in the media even more than it already is. They say a rising tide lifts all boats, but a sinking ships will generally take the rats down with it too. It was asking a lot of Democrats to vote against Kagan, and ultimately we only Ben Nelson’s “no” vote on Kagan. But it had to be done, and I don’t think we ought to go light on Senators like Bob Casey, who obviously aren’t as pro-gun as they’ve been claiming.

But a big reason that it did have to be done was as much for the Republicans as it was for the Democrats. I can’t imagine the federal judiciary is any different than any otherÂ hierarchy; where every District Judge imagines himself a Circuit Judge, and every Circuit Judge imagines himself a Supreme Court Justice. In that sense it’s very critical that Republicans understand that gun owners find anti-gun judges to be unacceptable for appointment or elevation on the federal bench. It’s not only important for Republican politicians to understand that, but for the current judges sitting on federal benches to understand that we’re prepared to scuttle any hope they may have of career advancement if they don’t rule correctly when it comes to the Second Amendment. So despite the fact that Kagan will be on the Court, and will likely be a reliable vote against us, I think there was value in the fight in terms of getting the vast majority of the Republican Party aligned against her. I can promise that Ben Nelson would have been a yes if NRA not opposed, along with more than a few Republican votes that were “no” instead of “yes.”

Baucus and Tester Will Vote “Yes” on Kagan

I can appreciate that Democrats in this Congress have been pretty pro-gun, and their grades will need to reflect that, but they also need to reflect their votes on Kagan to a large degree. There needs to be an understanding that what we’re fighting in the Courts are for basic, fundamental Second Amendment rights. Basically gun bans, and near gun bans. Sotomayor didn’t even buy into the idea that cities like Chicago and DC couldn’t ban guns, and it’s doubtful Kagan will either.

In other words, the justices Obama is nominating don’t believe in a SecondÂ AmendmentÂ right at all, despite it presence in the Constitution, and strong level of support for such a right among the population in general. Congress needs to be made to understand we’re serious about this. Republicans in particular need to understand that. It would be one thing if Obama was anÂ enormouslyÂ popular President, but he is not. There is no political risk involved with going against the White House. Close to 80% of Americans support the Second Amendment. Obama can only dream about approval ratings that high.

US News is the last place I’d expect to find reporting about an NRA memo, but they are. Contact your Senators and let them know to oppose her. Quite a bit is riding on this. At some point, the Heller and McDonald coalition on the Court will break, and that will be as far as we can take the right. I’ll be honest, I think it’s very unlikely we’ll get a pro-Second Amendment Justice out of this President, but we can at least send a message. At the least, he will need to take more a chance himself, on someone who’s record on the issue isn’t clear.

Serial Numbers Upheld by 3rd Circuit

This ruling strikes me as largely correct:

Scirica, who was joined by 3rd Circuit Judge Michael A. Chagares and visiting U.S. District Judge Joseph H. Rodriguez of the District of New Jersey, looked to First Amendment law in deciding that the federal ban on guns with obliterated serial numbers should be subjected to “intermediate scrutiny.”

But even if the law were held to strict scrutiny, Scirica said, it would still pass constitutional muster.

“Serial number tracing serves a governmental interest in enabling law enforcement to gather vital information from recovered firearms,” Scirica wrote, “Because it assists law enforcement in this manner, we find its preservation is not only a substantial but a compelling interest.”

Overall I think this is a reasonable ruling, and shows the courts are willing to take the Second Amendment as seriously as other constitutional rights. The fortunate thing here is that Judge Scirica rejected a rational basis test, which was asked for by the US Attorney, and made the comparison directly to the First Amendment. Orin Kerr has more here, including a link to the opinion itself. Eugene Volokh is cited.

So it would seem at least that three judges of the Third Circuit are willing to treat the Second Amendment fairly. This is encouraging.

New York Times Article on Appleseed

By New York Times standards, this is remarkably balanced, which is to say the reporter went around to Appleseed events and reported on people he thought were whack jobs. I’ve had my issues with Appleseed, as I posted a few years ago here, here, and here, but mostly centered on the question of whether it was meant to bring people into shooting, was something for casual shooters to get them more serious, or was something to get people thinking about revolution. It never seemed to me that it’s a good program for the first and last, but could be for the middle purpose.

But after talking to a lot more people who have shot Appleseeds since then, I’ve become less concerned and more ambivalent about it. People seem to get out of it what they expect to get out of it, and you can’t really argue with that. But I actually think someone the reporter interviewed hit on the essence of what drives Appleseed:

But the sociologist James William Gibson, whose book â€œWarrior Dreamsâ€ analyzed civilian paramilitary culture since the mid-â€™70s, says Appleseed and the broader movement around it are unlikely to pose a danger to civil society. â€œWhen a culture is in crisis, the first response is often to go back to the creation myth and start over again,â€ he told me. â€œThe narrative is â€˜weâ€™re going to redo the narrative of the United States by returning to origins, to marksmanship.â€™ People are focusing on the idea that Americaâ€™s problems can be resolved into something that can be shot. It doesnâ€™t exactly encourage systematic reflection, but itâ€™s a long ways from a civil war.â€

I’ve neve been one for myths, and although I very strongly believe in an armed populace as a deterrence against governmental malfeasance, I think we too often make the mistake of assuming that’s going to take a similar form to 1776 — that a nation or riflemen will triumph over a much more powerful conventional military mostly with small arms and light artillery. If our government were taken over by people with less than Republican virtue, I have a tough time believingÂ resistanceÂ would take that form. I’m struck by this passage:

When American men talk like this, they are usually giving voice to fantasy. Only in fantasy, after all, are governments overthrown by men trained to do nothing more than shoot long-distance targets in a controlled environment. Some of these men seek out unlikely battlefields, where they can be warriors of the future, warriors of the imagination or reluctant warriors in waiting who are passing their time on the Internet. The power of a gun to take a life is not so much a threat as a talisman connecting these fantasies to the real world.

This probably hits at the heart of the real problem I have with Appleseed, but not for the same reasons as the New York Times reporter, who seems to hint that the notion of an organic Revolution isÂ quaintÂ and silly, rather than that Appleseed is only focusing on a small part of the picture.

I would argue the man or woman who thinks about how to build UAVs, or knows something about robotics, chemistry, or engineering, has as much of or more of a contribution to make towards an organic militia of the people than someone who can hit a man sized target at 500 yards. That’s not what we want to hear because it’s not the founding narrative of America, but that’s the reality of modernÂ asymmetricÂ warfare. It’s not that small arms would have no role to play in such a doomsday scenario, they certainly would, but they would only be one part of a much larger picture, and the kinds of rifle shooting taught by Appleseeds would be an even smaller part of that. That’s kind of why I question what Appleseed is really trying to accomplish, not because I think it’s necessarily bad, but because it doesn’t seem to fit into a category outside of just teaching people how to be a better high-power shooter. That’s certainly aÂ laudableÂ goal, but what’s the goal in bringing in the rest of the ideas?

When it comes to preparing for the worst, there’s no need to make plain about what you’re doing. Shooting is a lot of fun, and you can teach it to people that way. Robotics is also a fun hobby. Model airplanes anyone? Look how much fun Joe’s Boomershoot is. Piloting UAVs? Plenty of flight simulators out there. Let’s also not overlook the value of computer hacking.

My purpose isn’t to disparage small arms, because they have a role, but to make people think about the problem.Â This isn’t the weapon, just a tool. This is the real weapon. Despite various assertions that your average American is a sheep, I have a pretty strong faith that if things got bad enough, that if, as one of my favorite federal judges said, “where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees,” that Americans will rise to the occasion. If that does come to pass, we’re going to need a much wider variety of skills than we did in 1776. This wouldn’t be a rifleman’s war. Learning how to shoot targets out to 500 feet is certainly fine, but it’s only a small part of the overall picture. That is, if you’re about more than just teaching people how to be better shooters.

Could McDonald v. Chicago Be Narrowed?

McDonald is an example of what you can call a voting paradox. Why? Because despite the fact that Chicago won on both its arguments, it still lost the case. Won on both it’s arguments? Has Sebastian lost his mind? Well, yes, a long time ago, but let me explain. Chicago argued that the Second Amendment was not applicable to the states because of the Privileges or Immunities clause. It won that argument 8-1. It also argued that it was not applicable via the Due Process clause either. It won that argument 5-4. But it still lose the case because Thomas concurred in judgement. The Supreme Court, in the case of Marks v. US created a rule to attempt to deal with plurality decisions. David Cohen, over at The Faculty Lounge, gives us some analysis of McDonald and the Marks rule, and determined it can’t apply to the decision. Interesting. I’m not sure I fully understand what the implications are, but interesting.

Nunchakus For Everyone!

As part of the orders that were handed down at the same time as McDonald:

MALONEY, JAMES M. V. RICE, KATHLEEN A.Â The petition for a writ of certiorari is granted. TheÂ judgment is vacated, and the case is remanded to the UnitedÂ States Court of Appeals for the Second Circuit for furtherÂ consideration in light of McDonald v. Chicago, 561 U.S. _(2010). Justice Sotomayor took no part in the consideration”

Well, OK, not quite yet, but the Court will presumably have to do more serious analysis, or at least different analysis, on whether New York’s nunchaku ban violates the Second Amendment.

Kopel’s Testimony on Kagan

I meant to post this earlier, but I’ve been distracted by a few things – including talking to a potential new addition to the EVC program in Pennsylvania. Woo hoo. But, I’ve also been trying to keep up with the Kagan hearings. What’s interesting is that as I was reading Dave Kopel’s testimony on Kagan, I heard his concerns brought up by Sen. Jeff Sessions.

The unfortunate lesson of the confirmation of Justice Sotomayor is that Senators who care about the Second Amendment cannot rely on platitudes about “settled law” or even direct promises to abide by Heller. Before this Committee, Ms. Sotomayor declared, “I understand the individual right fully that the Supreme Court recognized in Heller.” And, “I understand how important the right to bear arms is to many, many Americans.

To the Senate Judiciary Committee, Justice Sotomayor repeatedly averred that Heller is “settled law.” The Associated Press reported that Sen. Mark Udall “said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases.”

Yet on June 28, 2010, Justice Sotomayor joined Justice Breyerâ€˜s dissenting opinion in McDonald v. Chicago, and announced that Heller was wrongly decided and should be over-ruled. Apparently her true belief was not what she told this Committee, but instead: “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.”

So by “settled law,” nominee Sotomayor seems to have meant “not settled; should be overturned immediately.”

Accordingly, statements from Ms. Kagan about Heller being “settled law” provide not an iota of assurance that as a Justice she would support Heller, rather than attempt to eliminate it.

Commentary on McDonald

Bob Cottrol, who was cited in McDonald, comments over at SCOTUSBlog.

Congratulations and Thanks are in Order

First, to Otis McDonald, Adam Orlov, David and Colleen Lawson, the Second Amendment Foundation and the Illinois State Rifle Association for winning their case. Congratulations and thanks also to the attorney who brought, argued, and won the case, Alan Gura. That two landmark cases with his name on it now.Â I would also take a moment to recognize Paul Clement, who NRA brought in, over the objections of the petitioners, to argue Due Process, which you might remember I had disagreed with. I think it would be unfair not to recognize his contribution to oral arguments, and also for his amicus brief on behalf of Members of Congress, which was cited in the opinion.

But aside from the folks who won the case, there are many who built the solid foundation upon which these victories stand. They should not go unrecognized. First, I should recognize Steven Halbrook. Halbrook was cited multiple times in the opinion, but his academic work on the 14th Amendment was much of the foundational basis for this opinion. Fellow blogger Dave Hardy was cited twice, in Justice Thomas’ opinion, and the opinion. He wrote one of the Amicus briefs on behalf of Academics for the Second Amendment. Dave’s involvementÂ in this issue goes back to the early 70s, and he was one of the few individuals publishing law reviews on the Second Amendment, long before it was fashionable. Clayton Cramer was cited in both the opinion and dissent. Clayton has been writing on this subject for years, and came to be well known with his involvement in taking down Michael Bellesiles. Bob Cottrol was cited multiple times in Justice Thomas’ opinion, and has done extensive academic work on this subject, along with Ray Diamond, who co-authored one of the cited sources. We also should not forget the work of Don Kates, Joe Olsen, Dave Kopel, Glenn Reynolds, Eugene Volokh, Joyce Lee Malcom, and probably half a dozen other folks I’m forgetting.

I’d also like to take time to thank some folks at NRA for their work on this case, namely Sarah Gervase and Carol Bambery, who’s brief on behalf of Women Academics was cited in the Court’s opinion. We also should not overlook the work of NRA General CounselÂ himself, Bob Dowlut, who’s work on this issue goes back to the 70s, and has contributed much to this issue academically and in his role as NRA General Counsel, a position I believe he has held since I was in elementary school.