Category: 2nd Amendment

Reading Sebastian’s introduction to his position on the case of federal intervention on concealed carry, it reminds me why my position isn’t strictly against the concealed carry reciprocity, it’s best described as being torn. From the legal standpoint, I don’t disagree. I am not naive enough to believe that the feds aren’t already involved in gun laws. I realize that they are, and I realize there are problematic gun laws at every level. I also don’t disagree with the power of Congress to address the issue from a legal standpoint. My hesitation is based on the political and practical concerns

However, concealed carry has historically been an issue where we’ve kept the battles in the states and been largely successful. Think about it, we only have two holdout states with no concealed carry and a handful with may issue, and an even smaller number that abuse the discretionary powers. The status quo is pretty good considering most of it happened in my lifetime and was largely established by the time I became an activist in the movement in college. It’s not like we’re losing on that front.

I am also sympathetic to the argument that a cure for gun laws as restrictive as New Jersey’s may only be found through Congress rather than the courts. We have more sway with Congress and the courts are more likely to examine only individual gun laws rather than the state’s framework as a whole. However, by keeping these issues on the state level as much as possible, we still have choices. Sebastian himself has noted that every time New Jersey creates a gun rights activist, they want to leave. If we create open a door for increased federal regulation of carry, then we no longer have that option.

Another concern I have is that increasing federal power on the issue of concealed carry may actually cost us the opportunity to advance in the states. Consider that even with our remaining holdout states, we’re making progress. Concealed carry has actually passed in Wisconsin, we’re just waiting to get the Governor out of office or get a legislature with members who will listen to their constituents instead of party leaders who want to help the Governor save face in a veto fight. In Illinois, there is slow progress toward getting enough votes together for some kind of carry option. If the Bryan Millers of the world walk into those state houses and lean on neutral or only slightly-pro-gun legislators with the fact that they are opening their borders to any Vermont nutcase who just hasn’t been caught yet (aka another version of Cho who could buy guns even though he was nuts because the state didn’t have their records together), we’re likely to lose a few precious votes.

So even if we don’t make things worse for the vast majority of gun owners who live in friendly states with relatively few carry restrictions, how do we defend the vote to a Wisconsin gun owner who will face years of no more carry rights in his own hometown because we wanted to cross the river to Jersey for a beer without stopping to drop off guns at home?

There are political costs with every move, and I think the greatest debate on this issue is what costs are acceptable given the likely reaction of other lawmakers. A three-branch approach is needed to fix gun laws and continue advancing the cause, but perhaps the legislative fight is best kept to the state level when it comes to issues like carry. At least for now…

I consider myself a committed federalist.  To many people today, that means you favor state power at the expense of federal power.  That is usually true.  But a true federalist believes in a balance of state and federal power, as established in our Constitution.  We can argue about whether Congress’ interstate commerce powers extend to this or that, or whether Congress really has a general spending power, but since the Fourteenth Amendment was passed in 1868, Congress’ has been empowered to protect the constitutional rights of its citizens.  It has exercised this power more than a few times, first in the Civil Rights Acts of 1866, then 1871, 1875, 1957, 1960, and finally 1964, the former three establishing civil rights for freed slaves, and the latter three aimed at ending racial segregation in the South.  Protecting the rights of Americans against state abuses is one of the most important powers delegated by the Constitution to Congress, and it is with this in mind that I decided to support the Thune Amendment to force reciprocity on the states.

I’m generally not all that receptive to arguments based on what Congress might do.  Congress might turn around and ban guns entirely tomorrow.  It could attempt to impose restrictions on concealed carry between states right now if it wanted to. Crippling ourselves over what Congress might do in the future seems foolish to me.  But putting that aside, here’s why I think Congress needs to be involved in this area.

The Supreme Court is going to decide very soon whether or not the Second Amendment applies to the states through the Fourteenth Amendment.  While the Court has placed limits on how Congress may exercise it’s Section 5 powers under the fourteenth amendment, there’s nothing prohibiting Congress from assuming incorporation is already fact, and exercising its powers along the lines outlined in the Heller decision, which said the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”  In fact, having Congress do so may actually help the case for incorporation, as the Court may prove to be reluctant to second guess Congress.  More importantly, it would serve as encouragement for the federal courts, which tend to be more deferential to Congressional authority than they probably ought to be, to take a more active and less cautious role in protecting the Second Amendment rights of the citizenry.  Consider that once the federal courts begin to establish the scope of the Second Amendment right under the Fourteenth Amendment, Congress will no longer be able to have influence over its scope.  I think it might be beneficial over the long run to have Congress, which we have much more influence over than the courts, to charge in and lead the way.

I also believe that Congressional intervention may be the only way the citizens of New York, California, New Jersey, and all the other restrictive states might ever get their gun rights back.  Consider New Jersey, for instance.  Take any one law in New Jersey, and held out on its own it might seem reasonable, and might even be upheld in Court.  The problem with New Jersey is largely that it’s gun laws, taken as a whole, are intended entirely and solely to discourage law abiding people from exercising their rights, and to put those who dare at grave legal risk of walking outside of one of the exemptions and becoming a felon. The only entity that can fix this whole body of law quickly is Congress, through the exercise of its Section 5 power under the Fourteenth Amendment. Sure, there’s nothing to prevent the Court from coming in later and saying Congress got it wrong, but at least it puts the Court in the position of having to go against the will of Congress, which it might be reluctant to do.

While I understand that there’s a risk to setting a precident for Congress meddling with right-to-carry, and I am sure to receive endless barrages of “I told you so” should federal licensing standards ever come to pass, I think having Congress begin taking on its role under the Fourteenth Amendment is a smart strategic move.  We have considerably more influence over the lawmaking process than we do over the courts.  We need a strong three branch strategy toward realizing a positive outcome for the Second Amendment rights of all Americans, whether Californian or Texan, New Jerseyan or Oklahoman, Montanan or Bay Stater.  Congressional intervention under Section 5 of the Fourteenth Amendment is an important component of that.

Someone call Hell because Bitter doesn’t agree with the NRA on something! Clearly, it must be frozen. Now that we have that out of the way, on to the substance.

First and foremost, my background is probably the biggest driver of my skepticism of opening the doors of federal concealed carry regulations. I grew up in Oklahoma (rural, suburban and urban areas) where the attitudes toward guns is so overwhelmingly pro-gun that there was nary a question about the legitimacy of ownership and carry. I didn’t even realize there was a debate on guns until I moved to Massachusetts for college and inquired at the local range about buying one. I stuck around in Massachusetts for a few years post college and remained active with the issue before moving to Virginia to work in DC. Needless to say, I’ve seen the best and the worst. Hence, my skepticism.

I realize that the benefit of the Thune Amendment would have been huge for many folks. It would mean we could go do simple errands in New Jersey without worrying about stopping by the house to drop off guns. It means Sebastian could treat me to a Broadway show in New York City on my birthday whiled armed. I don’t deny that it would be a great thing, even for my household and many people I know.

What happens when the Pelosi-run House is able to round up the votes to add a few restrictions on the language so as to protect the largest states? It wouldn’t be much at first, as they would need to placate Blue Dogs & at least some of the GOP. NRA would be forced to expend at least as much political capital in defeating any restriction-laced bills in order as they did trying to pass it in the first place. Though these restrictions would likely be minor at first, and not terribly offensive to most, it’s very likely to do harm to gun owners in Vermont and Alaska first. They may need to mandate permits or add restrictions they don’t currently have on the books.

You can see where the slippery slope argument kicks in. But even if we didn’t go down the road of a worst-case scenario of a federally-run license scheme based on a system like New Jersey or Massachusetts, it would still be a negative on thousands of gun owners. It wouldn’t take too many tweaks to make that hundreds of thousands, or perhaps millions. In other words, is it a trade off we want to make? Having lived in one of the worst-case scenarios, I lean toward no.

Of course, wait for Sebastian’s rebuttal because you know there is more to argue on the practical, political, and legal levels here. It’s not a cut-and-dry issue, something I think is clear to us all after the last few weeks of discussion.

There’s a lot of debate within the pro-gun community about whether involving Congress in gun issues like reciprocity is really a wise idea.  Many in the community have expressed skepticism about the idea, and many are downright opposed to setting a precedent for Congress to involve itself.  While Bitter helped politically to support the bill, she’s one of the folks who’s skeptical of the notion that Congress should have a role here, since it might set Congress on a path of interfering with the Second Amendment in ways we don’t appreciate..  I understand those who are skeptical, but generally believe Congress has an obligation to protect the rights of American citizens under the 14th Amendment, and don’t mind it taking a more activist role in this area.

We have decided to present a series of arguments, with Bitter taking the side of the skeptics, and me taking the side of the proponents of federal involvement.  Bitter, after all, is from the South, and distantly related to Jefferson Davis.  And I’ve lived all my life in the area where many of the drafters of the 14th Amendment came from.  Bitter will do the first post, and I will follow.

Sensibly Progressive points out that the anti-gunners are acting like this is a done deal already, but it’s not.  The amendment has merely been proposed.  It hasn’t been voted on yet.  But since it’s proposed, we have the language, and I like it:

SEC. 1083. RECIPROCITY FOR THE CARRYING OF CERTAIN CONCEALED FIREARMS.

(a) Findings.–Congress finds the following:

(1) The second amendment to the Constitution of the United States protects the right of an individual to keep and bear arms, including for purposes of individual self-defense.

(2) The right to bear arms includes the right to carry arms for self-defense and the defense of others.

(3) Congress has previously enacted legislation for national authorization of the carrying of concealed firearms by qualified active and retired law enforcement officers.

(4) Forty-eight States provide by statute for the issuance of permits to carry concealed firearms to individuals, or allow the carrying of concealed firearms for lawful purposes without need for a permit.

(5) The overwhelming majority of individuals who exercise the right to carry firearms in their own States and other States have proven to be law-abiding, and such carrying has been demonstrated to provide crime prevention or crime resistance benefits for the licensees and for others.

(6) Congress finds that the prevention of lawful carrying by individuals who are traveling outside their home State interferes with the constitutional right of interstate travel, and harms interstate commerce.

(7) Among the purposes of this Act is the protection of the rights, privileges, and immunities guaranteed to a citizen of the United States by the fourteenth amendment to the Constitution of the United States.

(8) Congress therefore should provide for the interstate carrying of firearms by such individuals in all States that do not prohibit the carrying of concealed firearms by their own residents.

(b) In General.–Chapter 44 of title 18, United States Code, is amended by inserting after section 926C the following:“§926D. Reciprocity for the carrying of certain concealed firearms

(a) Notwithstanding any provision of the law of any State or political subdivision thereof–

(1) a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, and who is carrying a government-issued photographic identification document and a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm, may carry a concealed firearm in any State other than the State of residence of the person that–

(A) has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms; or

(B) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes;

(2) a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, and who is carrying a government-issued photographic identification document and is entitled to carry a concealed firearm in the State in which the person resides otherwise than as described in paragraph (1), may carry a concealed firearm in any State other than the State of residence of the person that–

(A) has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms; or

(B) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.

(b) A person carrying a concealed firearm under this section shall–

(1) in a State that does not prohibit the carrying of a concealed firearms by residents of the State for lawful purposes, be entitled to carry such firearm subject to the same laws and conditions that govern the specific places and manner in which a firearm may be carried by a resident of the State; or

(2) in a State that allows residents of the State to obtain licenses or permits to carry concealed firearms, be entitled to carry such a firearm subject to the same laws and conditions that govern specific places and manner in which a firearm may be carried by a person issued a permit by the State in which the firearm is carried.

(c) In a State that allows the issuing authority for licenses or permits to carry concealed firearms to impose restrictions on the carrying of firearms by individual holders of such licenses or permits, a firearm shall be carried according to the same terms authorized by an unrestricted license of or permit issued to a resident of the State.

(d) Nothing in this section shall be construed to–

(1) effect the permitting process for an individual in the State of residence of the individual; or

(2) preempt any provision of State law with respect to the issuance of licenses or permits to carry concealed firearms.

(c) Clerical Amendment.–The table of sections for chapter 44 of title 18 is amended by inserting after the item relating to section 926C the following:

926D. Reciprocity for the carrying of certain concealed firearms.

(d) Severability.–Notwithstanding any other provision of this Act, if any provision of this section, or any amendment made by this section, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, this section and amendments made by this section and the application of such provision or amendment to other persons or circumstances shall not be affected thereby.

(e) Effective Date.–The amendments made by this section shall take effect 90 days after the date of enactment of this Act.

So Congress is explicitly claiming its powers granted by the 14th Amendment to override state law in the matter of carrying firearms.  Originally, I was against bills like this because they relied on abusing Congress’ power under the commerce clause, but this one I will get behind.  I think this is an appropriate exercise of Congress’ 14th Amendment powers.  Contact your senators, and make sure they understand you expect them to support the Senate Amendment No. 1618 to the Defense Appropriations Bill S.1390.

“Tough to Say”

[youtube]http://www.youtube.com/watch?v=aw77TC1cCI0[/youtube]

NOTE: Bumped for another day of questions. Updates below. Now with daily labels in bold to make it easier to figure out where we are in the process.

DAY 2
There’s much more intelligent conversations to have about Sotomayor’s discussion of Heller and gun rights, but one quick note about something that made me laugh.

Sen. Leahy is asking simple questions like whether she merely accepts that Heller prevailed, blah, blah, blah. However, she expanded upon one of his questions about Maloney by saying that she has a friend who hunts, so clearly she understands the meaning of Heller.

I really did laugh out loud at that one, especially when she elaborated to justify Maloney because Heller was so narrow for specific circumstances.  Last I checked, Dick Heller wasn’t trying hunt anything in the District of Columbia when he brought that case.

I’ll update this post with random musings or notes as the day continues.

UPDATE: Orrin Hatch is now questioning Sotomayor on details of past gun cases.  They are leading to discussion of incorporation.  My understanding of what she’s trying to say is that incorporation was not only not at issue in Heller, but that the Court didn’t consider the Second Amendment to be fundamental enough to incorporate – even though she admitted that incorporation wasn’t addressed in the case.

She’s trying to take mad notes about Orrin’s questions.

Her responses on Hatch’s questions about fundamental rights are trying to lay a framework for her likely decision to refuse incorporation.

Fundamentally, we have to realize that she’s replacing Souter.  He wouldn’t be with us anyway.  Not to mention, she’s hardly an intellectual leader.  Listening to her answer other questions made that plenty clear.

Hatch flat out said he believes the cases she based Maloney on were the wrong line of legal thinking.

Now she’s trying to justify Maloney because of the “arms” used.  Apparently nunchucks are inherently dangerous because they could hurt people around you.  Umm, that doesn’t bode well for guns.  My internet skipped for a second before she said that, so there may be context lost.

UPDATE: Dianne Feinstein referenced guns as an example in regards to the Commerce Clause.  But my internet connection is getting slow, so it was skipping during her answers.  I’ve turned on the tv to follow it, and Dianne is making clear that Sotomayor needs to allow Congress to regulate “these things” after discussing guns again.

UPDATE: Poll time. Does Feinstein just want to put on a show for the left with the gun control talk, or is she really concerned that the power of Congress to regulate guns will be eroded?  Have we really scared her with Heller?

[poll id=”13″]

UPDATE: CNN’s talking heads are jumping on the Second Amendment questions right now.  They aren’t saying much that’s noteworthy or relevant.

UPDATE: They are replaying the quotes of her saying the Second Amendment is still an open question.  They are saying that guns are one of the issues that could generate a political response.  One pundit summed up her answers into three categories:

1. “I didn’t mean what I said for 10 years!” The denial that she didn’t mean to sound like her race and gender were key to how she decides cases, regardless of the years of speeches where she certainly implied they were relevant.
2. “I can’t answer that because it may come up later.” The punt. Anything that might ever come before the Court is punted.
3. “It wasn’t my fault!” Then we have the answers that just blame everything on precedent and claims that she can’t do anything about precedent.

To a large degree, the last two answers are pretty common with any nominee.   The versions of answer number 1 are going to be more relevant to the debate moving forward.

UPDATE: The Senate GOP jumps on board with reviewing her answers to Second Amendment questions.

UPDATE: I’m letting a bit of the snark out over on Twitter.

UPDATE: Russ Feingold is now saying that it’s perfectly logical for Sotomayor to have ruled against incorporation.  He’s asked her to confirm that she would recuse herself if Maloney is heard at SCOTUS.  He’s also asking if she would recuse herself from NRA v. Chicago.  She said she’d look at the past to decide whether to recuse herself or not.  However, she indicates the two cases are different, so probably not.  She doesn’t want to answer about the “general principle” for incorporation of fundamental rights like the Second Amendment.

The tone of Feingold’s questions makes me wonder if he’s trying to ask enough to appease constituents.  Are WI residents calling him?  If so, keep it up. :)

He’s specifically if incorporation will be inevitable. She seems to be distinguishing between nunchucks and guns. I’m not sure what that means for us.

UPDATE: Sen. Kyl is also asking about Second Amendment issues, and he’s clarifying whether she’ll recuse herself if Maloney/Chicago/Nordyke are combined before the SCOTUS. She’s backing down, indicating that she may choose to stay on. He’s hammering her on whether she will properly recuse herself if they are combined in any order.

He really is going after her on complying with the recusal statute and arguing that she needs to recuse herself if they accept Chicago and Nordyke because it’s the same legal issue as Maloney. He notes that it’s not about details in the cases because she did deal with a strict incorporation in Maloney and the likely issue at hand in the other cases will be strict incorporation questions, so it’s a fair question. He then went for the peer pressure angle and talked about similar vows from Alito & Roberts. He actually said he believed that if the question before the Court is strict incorporation, it would be improper for her to hear any of the three previously mentioned cases. Go Kyl for being direct.

UPDATE: Schumer is up. He says he’ll follow upon what Sessions & Kyl asked. They both asked about race comments, so I don’t know if he’ll mention guns. Not a single mention of the Second Amendment. His job was to make her look less “empathetic” in her judgment, in the words of Obama. He asked her to talk about sympathetic cases where she had to follow legal standards and rule against them. But, in responding to one question, she said that hateful speech is clearly protected under the First Amendment. Oh really?

UPDATE: Sotomayor is refusing to answer if she’s a strict constructionist, saying she doesn’t like labels. Is “wise latina” not a label? She seems to like that one quite a bit. He seems to have stumped her on what’s in the Constitution. She’s having to stop and think about her answers on abortion. I won’t get into the abortion issue here, but it was funny watching her try to think about it.

DAY 3
UPDATE: And we’re on to Day 3 (2, really). Sen. Coburn is asking that Sotomayor “educate him” on Maloney and why she’s now denying that she said it wasn’t fundamental. She claims that Maloney recognized Heller, so clearly she wasn’t saying it wasn’t fundamental. He’s also calling her out for claiming that Heller specifically ruled that the Second Amendment wasn’t incorporated, but he then told her to specify whether the SCOTUS set precedent with the case or simply didn’t answer a question it wasn’t taken up. She finally conceded that they simply did not rule on it and in fact they implied it should be taken up.

Coburn is going back to the history of restoring rights to minorities in the South because of infringement by the states. I love the issue coming up since she has made such a big deal out of race.

He also points out that she said yesterday something that is directly spelled out in the Bill of Rights – the Second Amendment – is still “open” and debated law, while she claimed that something not spelled out – abortion – is “settled” law. If Roe settled abortion in the broad sense, then Heller settled the Second Amendment. That concerns me that if she considers it open, then she would be willing to actually overturn Heller given the opportunity.

He specifically asked her for a specific right to self-defense. She won’t answer. She says she can’t think of a case where SCOTUS has said that people do have that right. She can’t think of any federal laws on self-defense. He’s asking specifically if she personally believes that as an individual has a right to defend themselves. She said she can’t answer something like that, not because she thinks she’ll hear a case, but it seems to be a complicated question for her. He’s even giving her the out to say there could be a case someday. However, she says it’s just so difficult because she’s a judge and she just doesn’t think like that. She uses an extreme examples that are clearly not self-defense to say that’s why it is complicated, so she can’t explain whether she believes that an individual can defend themselves against a direct attack.

I’ll be honest, the clearly uncomfortable answers to those questions and the extreme examples of non-self-defense situations make me wonder if she actually does believe in any level of self-defense. The closest she would come to saying anything about an individual’s right to save their own life is that there are some situations that New York’s criminal law that allow for a self-defense argument.

UPDATE: I would actually be curious to know if there is any precedent for asking a nominee a similar question about a simple right to defend your life. I actually give her some leeway for not directly answering many questions because of the nature of these proceedings. It happens both ways. But, that evasiveness on self-defense was beyond disturbing. I’m fairly confident she could have answered it in an intelligent way without getting in the way of future cases. But, I’d like to know if there are other examples of answers to similar questions by other nominees. I want to know if her evasiveness was in line with expectations or truly dodging an important, yet simple question.

UPDATE: Amy Klobuchar says she personally supports the Heller decision, and just asked Sotomayor to again say that she acknowledges Heller happened. There was nothing insightful about Sotomayor’s response, but rather about Klobuchar’s statement. She supported the individual rights view so much that she refused to join the majority of the Senate in signing onto a brief in support of Heller.

UPDATE: I didn’t realize they had come out of closed session. So I’ve missed some questions. However, Jeff Sessions is questioning her on Second Amendment incorporation. He’s really going after her for language in her testimony about how it’s not settled (unlike abortion, according to Sotomayor) and she has ruled in Maloney already. He is also questioning her implying that she needs to recuse herself from any of the likely cases coming up since she has already ruled on the issue. She’s playing denial by saying that it’s not her fault, it’s all Scalia’s fault for not opening the door on the issue in Heller even though they weren’t asked to rule on it. He’s also addressing some concerns that are somewhat connected to comments Randy Barnett has raised with her statements (and likely understanding) of incorporation & fundamental rights.

UPDATE: Again, Leahy says he’s a gun owner. He also blames Maloney on Scalia to defend Sotomayor.

UPDATE: Orrin Hatch is again bringing up incorporation. I’d say from sheer numbers of questions, we’ve won the major debate. I wonder how many times Orrin Hatch ever thought he would say, “The Ninth Circuit got it right” in relation to guns.

UPDATE: She says that the Constitution creates rights. So does that mean we have no rights as humans outside of what the dead white men wrote for us?

UPDATE: Poll time! I’d like you to answer this question on the merits of the hearings, decisions, professional experiences, and documents regarding Sotomayor. Please do not vote in this poll if you just want to vote but haven’t really followed much about Sotomayor other than she was nominated by Obama.

This question is based on the fact that most legals minds I’ve read have said that Sotomayor is essentially playing defense and saying just enough to not dig herself into a hole. She doesn’t have to win anyone over, it’s merely a matter of not saying anything to sink herself. With the overwhelming majority in the Senate, it would be near impossible to sink herself unless she really sticks her foot down her throat. To minimize that prospect, she’s just not saying much.

[poll id=”14″]

DAY 4
UPDATE: Lindsey Graham is again hitting her on incorporation of the Second Amendment. At this point, it’s a bit redundant, but I suspect the purpose is to get more gems out of her like not believing in self-defense. Graham did just say he never thought he’d say the Ninth Circuit would get it right on the Second Amendment, and there was laughter in the room.

UPDATE: Specter just threw out a softball question about the Second Amendment, essentially reminding the GOP that the Seventh Circuit also ruled against incorporation. His only beefy questions are about making sure Congress is the supreme branch and cameras in the courtroom.

UPDATE: Tom Coburn is asking about how to determine fundamental rights. He notes that she told Specter she couldn’t tell him, and she refused to answer Coburn on the issue. But, she’s giving off long, detailed answers to Democrats on other issues. She’s punting because she doesn’t want to say that the same standard applies to “specific amendments” aka the Second Amendment. He’s calling her lack of understanding of the fundamental rights or refusal to say disturbing in terms of a lack of transparency for the American public. I would absolutely I agree.

He’s specifically asking her if she believes it’s an irony that the issue of gun rights really became an issue when minorities were being disarmed in the South. Of course, she won’t answer. She only acknowledges that SCOTUS ruled on Heller.

I’d like to know exactly why she says Roe completely settled the abortion issue, but Heller leaves open the question of gun control.

UPDATE: Leahy is again trying to calm down the Second Amendment concerns. The fact that the Democrats are so scared to have this argument stick is very good for us, even if Sotomayor is confirmed. Sessions piped up saying that it’s important because of the practical impact. Leahy then made a crack about the “restrictive” gun laws of Alabama, Oklahoma, & Wyoming – at least as compared to Vermont.

UPDATE: Okay, I said I would limit the snark to Twitter. But I just have to throw one out there in the form of another poll.

[poll id=”15″]

UPDATE: Sen. Kyl is asking about Maloney again, but I missed the question because I stepped away from the computer for a minute. Sorry for the lousy reporting.

Now he’s asking what the test would be for analyzing state and local gun control regulations. She’s dancing around it. The usual. He specifically asked which standard of review she would use. She said rational basis, which he then asks if that in fact gives the states and cities too much control because they are the least intrusive on government to prove why it’s needed to control a right. Sebastian is on the phone and says, “Bullshit! That means it’s not a right.”

I hate that I missed some of this conversation because this is the most useful line of questioning about the topic in a while. In fact, paired with the recusal challenges, I’d say that Kyl has asked the best gun questions when it comes to useful information.

This is a line of questioning I’ll be looking for a full clip of later. I really hate that I missed it and I know Sebastian will want to hear it.

UPDATE: Sen. Graham is hitting on how important gun rights are to people. His question isn’t about that, but he just had to make the point. I think the high profile nature of guns in this hearing gives NRA leverage to oppose future nominees if they say anything remotely negative about the Second Amendment.

UPDATE: Wow, I think it’s over. Just for the record, they are expecting to have a full vote before the August recess.

UPDATE: Haha, joke’s on you! It’s not really over. We now have witness testimony. I imagine it will be a while before the gun issues come up. I also meant to say that Sessions read a good portion of Sandy Froman’s letter to the Committee. However, my laptop crapped out on me. I’m charging up the other one so this won’t happen. (I’m liveblogging while also doing chores.)

UPDATE: Sessions is using the letter from 33 Attorneys General against the Arkansas Attorney General who is supporting Sotomayor. He’s wondering if AG McDaniel is aware of how her appointment would likely go against his position on that. Sessions also made a jab about mayors who infringe upon the Second Amendment – Bloomberg apparently just walked in.

McDaniel said he doesn’t believe she’ll be a threat to the Second Amendment. Arkansas voters, that’s your clue to take action if she is appointed and votes against us. Make him pay for the lies.

UPDATE: Hahaha! Bloomberg is a comedian. He just said he’s a staunch defender of the Second Amendment who would have a lot in common with Sen. Sessions if only Sessions would chat with him about gun control.

UPDATE: My favorite part of the panel is coming up. We have the hotness of David Kopel with the fantastic-ness of Sandy Froman.

UPDATE: The Democrats apparently had Chuck Canterbury of the FOP to address the Second Amendment argument. Did he not here the part of the hearing where she denied ever having heard of any federal cases or laws that allow for self-defense or when she refused to answer whether she as a person believes an individual to defend themselves at all?

UPDATE: Yay Sandy! She notes that Sotomayor’s either refuses to engage on the issue or simply doesn’t get it. I wonder if either she or Dave will bring up the concerns of the rational basis test that came out in the hearing this morning.

She notes that the SCOTUS issued a directive for courts to re-examine incorporation rather than relying on precedent from the 1800s. Sandy notes that there really wasn’t much analysis in Maloney.

UPDATE: Now we’re onto the hottie! (Yeah, I’m going there.) I love his introduction – “The case of Sonia Sotomayor vs. the Second Amendment…” – you can tell he knows how to write an engaging articles. He notes that Maloney shows it’s not just about guns. Under her view, states could unilaterally ban all archery equipment under a weak rational basis argument. You hear that hunters?

He flat out calls her testimony & record on arms are glib & flippant.

UPDATE: We’ve got Ilya Somin up now on property rights. I won’t blog on the topic, but he’s a fellow Conspirator with Hottie Kopel.

UPDATE: Sessions is asking Sandy if she’s concerned about the incorporation issue, noting that she could make Heller completely worthless. She notes that because Sotomayor won’t outline her legal reasoning, it’s a concern that she could be beyond bad. Sessions also noted that NRA is officially opposing Sotomayor.

UPDATE: Kyl is asking Sandy again about rational basis and how low the standards are for that issue, with pretty much allowing any infringement. Nothing much to report on that front.

UPDATE: I’m confused since Stephen Halbrook was on the witness list and I haven’t seen him. He wasn’t on the second panel with Sandy & Dave, nor is he on the final panel. The first panel didn’t include him, either. I’m disappointed. Halbrook is a true Virginia gentleman. Not to mention, he’s fascinating to talk to in regards to history and gun laws.

I see now that the C-SPAN counter of panels is higher than mine. I guess I missed one. Maybe Halbrook was on it?

UPDATE: Wow, I totally messed that up. Turns out after they adjourned earlier, they came back for one more panel of speakers. Stephen Halbrook happened to part of that group, and I missed it. But, whatever took place, I caught the very end of it when Sen. Sheldon Whitehouse was talking about how SCOTUS “created a new right” in the Second Amendment. Then he said that they “discovered” the right after two hundred years. He doesn’t want Sotomayor sidelined over the gun issue. That’s interesting that they are a little concerned.

Eugene Volokh has a very interesting post about a San Francisco ordinance that essentially considers only “sporting use.” Professor Volokh says:

So long as gun control proponents talk solely about “sporting purposes,” and don’t even acknowledge the legitimacy of defensive purposes, it’s hard to take seriously the claims that law abiding citizens’ rights to own guns in self-defense are safe, and that the only goal is supposedly “reasonable gun control” rather than broad gun bans.

I agree.  Interestingly enough, one reason you can’t get a lot of imported guns in this country is due to the “sporting purposes” language in the Gun Control Act of 1968.  It would be a great victory of we could get this provision of the Gun Control Act of 1968 invalidated.  Heller just might lend some language that could provide a basis to argue this.

Robb Allen points out something pretty amazing on Examiner.com.  Irrefutable proof the Second Amendment does not protect an individual right, and thinks there’s no issue with Sotomayor’s position on guns.  But remember, we’re the ignorant ones.

Yes.  Keep fighting yesterday’s battles.  Please.  It only makes our jobs easier here in the pro-Second Amendment community!

Here’s a state map of the Amicus Brief favoring the Supreme Court taking up the Incorporation issue and ruling in favor of it.   Those in favor are in red, those who did not sign on are in blue.  You can click to make it larger.

What’s up with Arizona, Tennessee and Nevada?  I mean, if Jerry Brown can sign on, you can too.  Here are some links to state AGs who did not sign on, who should be asked to explain why they did not:

Arizona, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Tennessee, Vermont, and Wisconsin.

One thing to consider is a lot of these AGs are appointed, rather than elected.  So they may be somehwhat restrained in what they can sign on to.  But still call, and put pressure on the people that appointed them.  With the exception of Wisconsin and Hawaii, all these AGs are Democrats.  Wisconsin is an elected AG, so be sure to call him in particular if you live there.

UPDATE: I’m told under Wisconsin law that the AG has to get the Governor’s permission to sign on to anything, and Doyle is against the Second Amendment being incorporated.  So call Jim Doyle’s office and complain to him.