Category: 2nd Amendment

The VPC are expecting a grand victory against the vile forces of the NRA.

The Supreme Court has announced something big for 10AM today.  Monitor SCOTUS blog, who will be covering it live.

UPDATE: It’s unusual for The Court to announce on Thursday, so that’s what driving the spectulation this might be it.

UPDATE: So far no Heller.  They’ve released a Habeus ruling on Guantanamo.  Maybe that was the big deal that caused them to release this special.   Stay tuned.

UPDATE: Looks like the Guantanamo case is the big news for the day.  The smart money was on the 23rd for the release.  We will have to wait.

Continuing a thread that started with my post about police rifles, I wanted to note that what I’m speaking of is not what interpretation of the second amendment is most correct historically, but which interpretations protect the widest array of firearms that the federal judiciary would adopt.

Note that there is no way the federal judiciary is going to accept a standard that laws regulating any kind of arm is by default unconstitutional.  There will be lines drawn with certain classes of arms being protected, and certain classes not being protected.  We have it on pretty good authority, both from Alan Gura, and various other folks with legal knowledge in the issue, that it is extremely unlikely that the federal judiciary will even rule that automatic firearms are protected arms under the second amendment.

So I think it behooves us to think of a standard that the federal judiciary will accept that nontheless, protects an awful lot of firearms.  My “common police use” standard wasn’t meant to be an all inclusive rule, just one way to think about the problem.  For instance, Bryan Miller’s crown jewel, the New Jersey Smart Gun ban would fail the common police use test, since police are exempted from it.  The beauty of the test is that it forces politicians to seriously consider actions like what Chicago may be doing.  If it can be shown that M4s are in common use in police departments, the constitutional case for restricting them starts getting weak.  Certainly magazine size limits and bans on so called “assault weapons” would not pass this test already.

That’s not to say I think the “common police use” test should be the only one.  I would propose a three fold test to determine whether the arm is protected under the second amendment:

1. Is the arm usable for personal self-defense, or
2. It has a function in the preservation of or practicing skill at arms, and
3. It is of a type or functional variant of a firearm in common police or civilian use.

Type or functional variant makes this pretty broad, so many types of firearms fall into this.  This test also doesn’t shut the door forever on machine guns, but nor does it directly address whether they are protected.  It’s also a bit stronger than the “common civilian use” test that the court alluded to, since pretty obviously that would close the door on machine guns.

But this is only meant to be a standard of interpretation for what is an arm under the second amendment.  At some point we also have to address what constitutes an infringement.

Over at The Daily Kos.  I think this is one thing we can all agree on:

I know liberal couples who give each other pocket size copies of the Constitution for Christmas.

Ask liberals to list their top five complaints about the Bush Administration, and they will invariably say the words “shredding” and “Constitution” in the same sentence.  They might also add “Fourth Amendment” and “due process.”  It’s possible they’ll talk about “free speech zones” and “habeus corpus.”

There’s a good chance they will mention, probably in combination with several FCC-prohibited adjectives, the former Attorney General Alberto Gonzales.

So.

Liberals love the Constitution.  They especially love the Bill of Rights.  They love all the Amendments.

Except for one: the Second Amendment.

Read the whole thing.  Another mistake a lot of folks on the left make is assuming we gun owners don’t care about this administration’s abuse of other civil liberties, or that we love the former attorney general, rather than thinking he’s as much of a weasel as they do.  I have known few gun owners who are entirely happy with the Bush Administration.

Democrats need to understand that the gun vote is not lost to them, and the way to get it back is not through sham endorsements or transparent pandering.  They way to get it back is to cease supporting gun control.

Dave Kopel had front row seats at Heller oral arguments, sitting at the attorneys table with Alan Gura.  Go read his accounting of it.

Dave Hardy’s documentary is going to be shown at the Backlot Film Festival in Culver City, California.  It will be this Saturday at 10AM, and tickets are only five dollars.  Dave is asking folks in the area if they wouldn’t mind showing up, because the more people that show up, the more chance there is of media coverage.

Southern California is a little far from my neck of the woods to make the trip, but I hope folks in California will be able to make it.

Bitter has a bit up that talks about NAACP’s litigation strategy to attack Jim Crow, and points out the parallels to what gun owners will not be facing now that we’re executing a litigation strategy to restore the second amendment.  At least I hope there’s a strategy.  If there’s not, we need one.

This is reprinted from subguns.com, but I think it’s important for everyone to read this:

The solution to 922(o) will have to be political in the end. The fact is, outside the gun community, the concept of privately owned machine guns is intolerable to American society and 100% of all federal judges. If I had suggested in any way — including, by being evasive and indirect and fudging the answer — that machine guns are the next case and this is the path to dumping 922(o) — I’d have instantly lost all 9 justices. Even Scalia. There wasn’t any question of that, at all, going in, and it was confirmed in unmistakable fashion when I stood there a few feet from the justices and heard and saw how they related to machine guns. It was not just my opinion, but one uniformly held by ALL the attorneys with whom we bounced ideas off, some of them exceedingly bright people. Ditto for the people who wanted me to declare an absolute right, like I’m there to waive some sort of GOA bumper sticker. That’s a good way to lose, too, and look like a moron in the process.

I didn’t make the last 219 years of constitutional law and I am not responsible for the way that people out there — and on the court– feel about machine guns. Some people in our gun rights community have very…. interesting…. ways of looking at the constitution and the federal courts. I don’t need to pass judgment on it other than to say, it’s not the reality in which we practice law. When we started this over five years ago, the collective rights theory was the controlling law in 47 out of 50 states. hopefully, on next year’s MBE, aspiring lawyers will have to bubble in the individual rights answer to pass the test. I know you and many others out there can appreciate that difference and I thank you for it, even if we can’t get EVERYTHING that EVERYONE wants. Honestly some people just want to stay angry. I’m glad you’re not among them.

You want to change 922(o)? Take a new person shooting. Work for “climate change.”

Thanks,
Alan

He’s right.  You have to sway public opinion if you want traction on that issue.

Hat Tip to SayUncle for discovering this.

Ahab goes from Canada to China.