Dave Hardy takes a look at the cases left from the February 22nd sitting, which is where McDonald was heard, trying to figure out who might write the opinion.
Category: 2nd Amendment
Dueling Op-Eds
Professor Lawrence Rosenthal argues that the Second Amendment isn’t protecting a right that’s sufficiently fundamental to warrant incorporating it. Joyce Lee Malcolm takes the other side of the coin.
I guess the Inquirer is making at least an attempt at balance in its opinion pieces.
Freedom Has Consequences
Sebastian! Â Please! Â Good God in heaven, man, how can you keep a straight face and say that allowing the Attorney General of the United States to deny a gun to someone that the FBI considers too much of a terrorist risk to get on an airplane should have unfettered gun purchasing rights?
Do you know that this will marginalize your side with the American people so severely that you will lose credibility for years to come? Â Are you insane? Â Or are you just really so blind that there is nothing, nothing, that you could ever, ever support to keep anyone, anyone, from buying any weapon they wish?
God. This one is so simple. Â I cannot believe that you and your commenters can be opposed to this and call yourselves American patriots. Â It’s put up or shut up time, gunners.
There are many aspects of our free and open society that make life easier for terrorists. I think most Americans would agree that preserving our essential liberties is an important consideration when we’re deciding how to deal with terrorism. Whether the Brady Campaign likes it or not, the Right to Bear Arms is one of those liberties, among many others.
I don’t think anyone here really wants it to be easy for terrorists to get guns. I don’t really want it to be easy for them to roam around the country either. It would be really nice if we could identify all the terrorists who are in the United States right now and eject them from the country. But none of these goals can be achieved without destroying essential liberties. This is a consequence of having freedom. In fact, it’s reasonable to argue that terrorism is a consequence of the open society our freedoms and liberty create.
Which brings us to the “no fly” list. It should be noted that the list doesn’t actually stop anyone from flying. That would bring about constitutional issues because the right to travel is a fundamental right under our system.The “no fly” list only applied to travel in and out of the United States. I should note that even this as not been constitutionally tested as far as I know, so it’s still an open question as to whether this is constitutional, at least as applied to American Citizens. My opinion would be that it does not. The right to travel should, within the confines of citizenship, include the right to travel in and out of the country.
I have little doubt the Brady folks don’t like the idea of gun ownership being a right, but it is, and if we win McDonald, it will likely be deemed fundamental. I don’t frame the “terror loophole” issue in terms of guns or terrorists. It’s a question of whether it’s proper to deny American citizens their constitutional rights without due process of law. To that, I think the answer is no. That’s grounds I’m very comfortable disagreeing with the Brady folks on. Despite what the Luntz poll may or may not have said, I believe most Americans, if asked the question framed in terms of denying Americans Citizens their Second Amendment rights because of their presence on a secret government list of suspected terrorists, you wouldn’t get such overwhelming approval.
More on the Caving Gun Club
PAIndependent has done some research into the Keith Olbermann-loving Elstonville Sportsman’s Association and finds that their latest excuses for canceling the LiveFreePA event don’t really match their history.
The club’s board of directors met Monday night “to discuss the recent events that have unfolded in the media pertaining to the event scheduled for May 8,” according to Steve Lowe, an Elstonville board member. “Elstonville is a sportsmen’s association and will not be affiliated in any way with political actions and/or statements to the media or the general public. We…will not be associated with events such as this.”
Get that, they never do anything political. Which is why they hosted LiveFreePA in 2009 with Ted Nugent. Sure. Oh, and there’s that pesky fact that they let a Republican lawmaker hold a fundraising shoot there in 2008. And who could forget that they are hosting another directly partisan fundraiser again the following week?
The people who criticized the event would be the first to shut down the gun club if given the opportunity. As mentioned yesterday, there’s Keith Olbermann. But locally, it was Democratic gubernatorial candidate Joe Hoeffel who complained. First, he’s no one. He was once a Congressman who no one liked, so they booted him out of office. He’s now a County Commissioner just outside of Philadelphia who is running somewhere between last and next to last place in a crowded primary. He has endorsed a whole range of gun control.
[youtube]http://www.youtube.com/watch?v=ZE8lrejGuac[/youtube]
I suspect that Elstonville Sportsman’s Association is suffering from a problem that I’ve seen at other area gun clubs. Namely, that they are scared of politics and “new” things. They want to sit down comfortably and stick their heads in the sand while the world changes around them. It doesn’t matter that they people they cave to are actively leading the fight to take their guns, close gun clubs, and kill the shooting sports culture.
At the very least, their board is on the record lying to pro-gun groups about banning all political events while turning around and hosting partisan fundraisers. I’m not sure if that makes their actions any better, or actually worse.
I’ve worked with gun clubs in several states. I am most concerned about the health of the clubs I’ve seen here in Pennsylvania. Some of them actively try to keep shooters out, others pretend that politics doesn’t exist even when it surrounds and threatens their sport, and then you have Elstonville which thinks that giving into the Joe Hoeffel agenda is more important than supporting an organization that has promoted liberty and firearm freedom in Harrisburg. Now they are putting up the flag of no politics ever, which means they will forever close any access they had to local pro-gun politicians.
I’ve heard it best described as the need for a hundred mini-Cincinnati revolts (i.e. the Annual Meeting fight that lead to the creation of NRA-ILA & finally got gun owners involved in politics). Gun clubs should be about the shooting sports first and foremost. But because politics will mean the difference between prosperity in the culture and taking the very guns we use to compete and defend our lives, it means that clubs cannot sit out of the game. In a healthy club, members even find out that a) political work isn’t very hard, and b) it can even be a little fun, especially if it’s social and there is food involved. By sitting out of the game, club leaders are throwing their own members under the bus. Members shouldn’t sit idly by and let that happen.
Standards of Review in State RKBA Cases
Dave Kopel and Clayton Cramer have yet another law review coming out on how state courts have developed the Right to Keep and Bear Arms found in their own state constitutions. You can read more about this over on Volokh.
Takings Clause and the Second Amendment
Eugene Volokh takes a look at the case of US v. Edward L. Brown. The question seems to be whether the Court can order a collection destroyed after the collector is convicted of a felony, or whether the collector is permitted to transfer the collection:
For example, the ordered destruction would seem to raise serious Takings Clause issues. Firearms subject to neither lawful forfeiture nor confiscation as contraband (as in this case) remain valuable tangible personal property belonging to the convicted felon. I doubt the government’s right to simply confiscate and destroy such valuable property without first affording due process and payment of just compensation, even if it is accepted that the felon-owner cannot unilaterally transfer his ownership rights following a felony conviction. In Cooper v. City of Greenwood, 904 F.2d 302 (5th Cir.1990), for example, the Fifth Circuit recognized that even one convicted of illegally possessing firearms does not lose his or her property interest in the firearms by virtue of the conviction alone. That property interest cannot be simply taken by the government without affording the property owner due process of law….
The Court seems to have argued that the government can direct the liquidation of the collection for the convicted person’s benefit. Meaning the government directs the collection to be sold, with the proceeds going to the convict. This would seem to me to be the fair way of going about it.
This is all assuming it’s a case where the firearm isn’t subject to forfeiture, or is contraband. Obviously if a collection of guns is pulled off a drug dealer, those guns are subject to forfeiture, along with other property used in furtherance of the crime. Another case would be an unregistered machine gun, being contraband, could just be taken.
Review of Potential Supreme Court Picks
Over at the PA Gun Rights blog, which thanks to Bitter now has an entirely revamped public face, we take a look Obama’s potential picks for the Court. Not shockingly, none of them look good. When the best you can really hope for is Cass Sunstein, it’s not a good day for the Second Amendment.
Online Chatter About Repeal
It would seem that someone is doing a lot of chattering about repealing the Second Amendment. Whether it comes from folks on our side talking about those who want to do it or from folks on the other side who want to do it, it sure tops out all of the other amendments.
At least it looks like Amendments 9, 20, and 27 are safe.
Cross-posted from PAGunRights.com.
Democratic Disconnect
When you’re a Democratic gubernatorial candidate running in the state with off-and-on the highest number of NRA members, it’s generally a bad idea to endorse gun control. It’s doubly bad to be fighting fights on guns that even the Brady Campaign won’t embrace any more. But Joe Hoeffel is just that kind of man.
We already know that Hoeffel created a wish list of gun control he wanted to bring to Pennsylvania if elected – one gun a month, ending state preemption, rifle bans, mandatory locks, and lost-and-stolen – but his latest attack actually represents an assault on the original Heller decision. This puts him to the left of the Brady Campaign because even they won’t embrace outright handgun bans anymore. But Joe Hoeffel will!
How out-of-touch do you have to be as a politician when the one serious constituency organization you have for gun control even considers your position to be too far? If, God save us, somehow Hoeffel won the Democratic nomination and won the general election, how would he justify supporting such a radical agenda? “Not a single gun control organization asked me to introduce this gun ban, but damnit, I know better than all of them! And the Supreme Court, they can go to hell!” It’s something we’ll never see, but I’d love to try and understand his logic on the issue.
I might add that Hoeffel’s former running mate who signed a joint statement with him on gun control is running for State Senate against a B rated incumbent. If she remains on the ballot through the primary, I might just check in with her to see if she still agrees with Joe Hoeffel on gun control – and whether she plans to try and draw Pennsylvania into a fight that would re-argue Heller.
Stick to History Professor
I demand the arrest of Thomas William Heyck, professor of History at Northwestern University for this vicious and seditious attack on the Second Amendment. Because clearly the right to free speech only applies to goose quill and parchment! None of this newfangled Internets.