Another Walk Down Memory Lane

I decided to take a look in the immediate post-election era to see what we were talking about here eight years ago. I think it’s kind of a fun thing to do. Basically, I was talking people on my side down from the ledge a lot. What worries me today is I only see the madness feeding on itself. Then, I believed that madness was a distraction, and would imperil serious efforts to stop the new Administration:

Morning after election: “That is all.  Get ready folks, we are in for some dark, dark times.” Actually, if you had told me then where we’d be now at the start of a new Administration, I wouldn’t have believed you. We opposed Obama when he came after us and we came out on top every time. I figured we’d win some and lose some. I think we were helped greatly by the fact that neither Obama nor Bloomberg have any understanding of the gun culture in this country.

Barack Obama is my President.” “What I mean by that is I’m giving him a chance.” I still think he sucked, but the “Not my President” crap I see from the left now is still just as obnoxious when I was seeing it from the right eight years ago.

I largely blamed the Bushes for destroying Reagan’s coalition. Nothing I’ve seen since convinces me to change that argument. If there’s one thing I will always be eternally grateful to Trump for is sweeping aside the Bush family.

Boy is this not true anymore: “There are extremes on all sides.  Part of the reason our system works is that it tends to dull extremes.” Obama was actually far more successful at transforming the country than I thought. Plus, this bit of snark: “I think it’s safe to say that the re-education camps, at best, will be a second term project.”

Initially there were bailouts. I was happy to see the Administration spending time on this because it would weaken it for fights to come. I expected the Dems to act in their own self-interest, rather than march their historic Congressional majority off a cliff, which is what they did.

Judicial minimalists were no friend to the Second Amendment then, and they still aren’t.

Good manners are in short supply these days, and sadly that’s true of much of our side as well.” Little did I know it would only get worse. One of Obama’s tactics is to troll his political opponents to throw them off balance, and make them behave irrationally. It was very effective, but also bad for the country. Trump learned from the master.

The Dems could stand to hear this today, but then I was talking to gun owners: “There are literally hundreds of bills that get introduced in Congress, or thousands if you count the legislatures of the several states, each legislative session.  Most of them aren’t going anywhere.

Gun control supporting folks in the media were calling us crazy for thinking then President-Elect Obama wanted to do gun control, except for the fact that it was in his transition platform. He actually left us alone, for the most part, during his first term, if you recall. Even signed a few pro-gun measures (admittedly under duress, since they were attached to “must pass” bills).

This is still very relevant: “We feel a deep pleasure from realizing that we believe something in common with our friends, and different from most people.  We feel an even deeper pleasure letting everyone know of this fact.  This feeling is EVIL.” This feeling is what made Zuckerberg filthy rich, and we’re all about this today.

Obamacare was starting to shape up. This is exactly what happened: “Enforced through the tax system, eh?  Well, at least that’s probably constitutional.  Either way, there’s no word on how they plan to pay for what is bound to be an enormously expensive program.  To me this is the worst of both worlds.  There will be no incentive to control health care costs with a system like this, and costs will spiral out of control.

Sarah Palin would eventually beclown herself, but the GOP response to her was a prelude to Trump, looking back now. More along those lines here.

You know, I’ve been saying that I don’t think people have to worry about Obama shipping anyone off to concentration camps in cattle cars.  I still stand by that, because I think Obama is hiring and appointing solid progressives, within our legal traditions, not murderers.” I could say the same thing about Trump’s picks today, except for the “solid progressive” part.

Paul Ryan, who is fairly hard Right, won big in areas of his district that went hard for Obama” Of course, now Paul Ryan is an establishment sellout! (yes, I’m being sarcastic).

Why It’s Not the 1930s Again.” Another thing Dem voters could stand to read now, only then I was saying it to GOP voters. More along those lines here.

Obama Will Overreach” Boy, he sure as hell did, didn’t he? People who wanted to see gun control after Sandy Hook could have easily gotten some if they hadn’t overreached. Hell, we preemptively offered to reform the background check system and apply it to all transfers, and they rejected that because it wasn’t radical enough. So we took our respective sides, fought it out, and they lost.

These same people are now Trump voters.

Interesting. Trump’s approval numbers were pretty low as President-Elect. I didn’t remember this, but it looks like Obama’s were too.

 

How I Opposed Obama Eight Years Ago

I was looking back over my archives. This is something I don’t like to do, because my beliefs have evolved somewhat, and my blogging style today isn’t quite the same as it was back then. In some cases I’d like to reach through the screen and smack my then self. But what I was talking about in the post-Obama inauguration period is a sharp contrast to the nuttery I’m seeing on social media today:

I also noticed the day before Obama’s inaugural is when I launched a Facebook presence for the blog. That’s also, and I don’t think it’s a coincidence, when dialog in this country started to head downhill.

The World Gone Mad

Maybe it’s just because I’m used to being disappointed by the occupant of the White House, it’s hard for me to get as worked up over the Administration change as much as everyone on Facebook. I was reading Sarah Hoyt’s article about “Surviving the Cult” and glanced briefly at the comments. This really caught my eye:

I feel like I’m being constantly gaslighted by people I have, well, had, some respect for, joked with, met, and suddenly they’ve all gone crazy left as though they’re trying to win some kind of loon contest. And I must have just been really naive not to have seen it years ago.

Yep, and while I’m aware that this has reenergized the loony right, the center seems to be disappearing. Embrace the crazy! It’s quickly becoming the zeitgeist of our age.

Back in the Lawsuit Business

Cases are starting to be filed and hopefully moved again, including this one in Massachusetts. I don’t want to say I’m wary, but I am. Replacing Scalia with someone solid on the Second Amendment doesn’t get us anywhere; it prevents us from sliding backwards. Trump’s leading candidate for replacing Scalia is Neil Gorsuch from the 10th Circuit Court of Appeals.

We did litigate the Colorado magazine limitations in the 10th Circuit. The District Court upheld the ban, but that ruling was thrown out by the Circuit Court because they argued none of the plaintiffs had standing to sue. Judge Gorsuch didn’t have anything to do with that case, so the best we can do is the quote from SCOTUSBlog link above:

Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.

I think more will have to come out in the confirmation hearing, but his position on that case makes him promising. We will have to replace one of the liberals to move forward. Otherwise I’m afraid we’re just going to create more bad precedent in the circuit courts that the Supreme Court will leave in place when they refuse to hear the case.

Women’s Marchers Debase Women’s Monument

A monument dedicated to women on the site of the largest complex of buildings owned exclusively by women seems like it would be a great place to stop and pay some respect during the Women’s March, doesn’t it?

It was, if you define paying respect by climbing up the monuments to slap on signs, clothing, and hanging crap off of the outstretched hands. If respecting the property means stomping over flower beds, kicking the greenery up, pushing through the bushes, leaving trash strewn about, and apparently also smearing paint on statues, then sure, lots of respect was paid to the monument and buildings owned by women. (The paint apparently isn’t visible in the videos below because they were shot after signs were placed on top, but I’ve seen it mentioned by several who visited the site later.)

The buildings owned exclusively by women since the empty city block across from the White House lawn was purchased more than 100 years ago – before women could even vote in this country – and are home to the Daughters of the American Revolution. DAR is non-partisan and apolitical. I know women in the group who are far more conservative than I’ll ever be and far more liberal than I’ve ever been. And yet we have a few things in common – a sense of respect for American history and values, and we’re always volunteering for something in our communities.

In fact, the monument that was “decorated” by the marchers is dedicated to the founders who spelled out that DAR was supposed to be a community service organization. Our current goal for recorded service in our community is 19 million hours collectively doing meaningful service – not writing checks or showing up to a gala for a cause – in 3 years. The 19 number comes from the fact that our final year of recording hours will be the 100th anniversary of the 19th amendment.

I’ve seen marchers defend the mess they left on sidewalks by saying that the City wanted to handle clean up so they wouldn’t have as many trashcans that could be a security risk. Assuming that’s accurate, this mess is not on a sidewalk. In fact, much of it is not even on concrete. It’s in bushes and dropped over gardens. It’s on private property that women have to pay to clean. So all those complaints about the gender wage gap? A man is on video calling for people to leave their trash that women who make less will have to pay to have cleaned. That flower he laughs about kicking out of the ground, sure it’s just one bloom. But those gardens are paid for by women. So much for respect.

Inside those halls, if the people in the video had any interest in history, they would find a museum that primarily runs exhibits relating to women’s connections to history and craft. They would find collections put together by volunteers and staff (paid by women) dedicated to documenting the rich history that covers this country’s recent immigrants to the Revolution’s minority patriots. They would find out about how a group of women raised money to plant entire forests in every state – many of which are still preserved public green spaces today. Instead of actually showing even a reasonable level of respect for those efforts, they spread paint on our monuments and leave their trash behind as a “shrine” for women to clean up. (At least a past national officer reported that the paint seems to have been water based and was removed without further damaging the statue.)

But I have to say that it’s not just the marchers who left their trash behind in an effort to force non-partisan groups into partisan political debates, it’s also the reaction afterwards. Needless to say, the images of this vandalism have been shared widely in various DAR groups online. Some of the liberal members of the group are trying to put a positive spin on the intention, but also recognize that this is a man who is organizing some level of vandalism on our statues and that it will require women’s funds to clean up. I have seen some who have asked their fellow marchers to contribute to those expenses by donating to the DAR’s building maintenance fund in recognition of the fact that it wasn’t appropriate to leave everything behind for a private, non-political group that wasn’t involved to clean up.

Then there are those members who participated who I’ve seen demanding women who share information about the clean up efforts be banned from the organization. Their argument being that DAR is non-political, so a post about cleaning up the trash and paint left on our property by a political march is considered political because it makes their cause look less than perfect. Newsflash ladies, every movement has a**holes. If you’ve been involved in real grassroots action before, you know this. Call them out on their bad behavior and do what you can to correct that image. Instead, they want to silence those who are expressing disappointment in bad behavior. It doesn’t seem unreasonable to believe that a shared American value should include that even when you’re passionate about an issue, trespass and vandalism of private property is inappropriate.

Civil Rights Progress

The 7th Circuit has been surprisingly good when it comes to Second Amendment issues, so it’s not a huge surprise that Ezell II has scored a victory. If you recall, Chicago tried to zone gun ranges out of the city. That was struck down in Ezell I. So the city basically rewrote the law so that gun ranges aren’t technically banned, but they are subject to a patchwork of regulation that amounts to a de facto ban. They also prohibited minors from using legal gun ranges in the city.

Basically, in Chicago you couldn’t teach your kids to shoot, which wasn’t an issue anyway, since there were no ranges in the city by design. The city’s new laws, designed to evade Ezell I, is now struck down in Ezell II. The opinion being delivered by Judge Diane Sykes. Judge Sykes is on Trump’s list of judges he told us he’s considering for nominations to the Supreme Court.

We affirm in part and reverse in part. The two zoning regulations—the manufacturing-district classification and the distancing rule—dramatically limit the ability to site a shooting range within city limits. Under the combined effect of these two regulations, only 2.2% of the city’s total acreage is even theoretically available, and the commercial viability of any of these parcels is questionable—so much so that no shooting range yet exists. This severely limits Chicagoans’ Second Amendment right to maintain proficiency in firearm use via target practice at a range. To justify these barriers, the City raised only speculative claims of harm to public health and safety. That’s not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights.

The age restriction also flunks heightened scrutiny. We held in Ezell I that the Second Amendment protects the right to learn and practice firearm use in the controlled setting of a shooting range. The City insists that no person under age 18 enjoys this right. That’s an extraordinarily broad claim, and the City failed to back it up. Nor did the City adequately justify barring anyone under 18 from entering a range. To the contrary, its own witness on this subject agreed that the age restriction is overbroad because teenagers can safely be taught to shoot and youth firearm instruction is both pruent and can be conducted in a safe manner.

What really pleases me is that the judges took note that the zoning rules allowed law enforcement ranges on any commercial property, and the city notes those ranges operated safely. They looked at that and balked at how that argument wouldn’t apply somehow to civilian shooting ranges. In a small way, they looked at police exemptions and called bullshit on it. This is what I think courts should do. If they are exempting the cops, something is fishy.

And if more were needed, the City concedes (as it must) that law-enforcement and private-security ranges operate in commercial districts throughout Chicago near schools, churches, parks, and stores; the City acknowledges that they operate quite safely in these locations. Common sense suggests that law-enforcement ranges probably do not attract many thieves, but the City’s theft-protection rationale for these zoning rules is so woefully unsupported that the distinction between law-enforcement and commercial ranges doesn’t carry much weight. The City doesn’t even try to argue that commercial ranges create greater fire or environ- mental risks than law-enforcement ranges.

The whole opinion is pretty decent. Scalia was passionate about the issue because he was a shooter. I’d like to see a shooter replace him. I don’t know if Judge Sykes is a shooter or not, but from what I’ve seen from her, I’d definitely find her to be an acceptable court pick by Trump.

Common Arguments Against National Reciprocity

I’ve been watching the debate unfold, and wanted to address some common arguments I see from people on our side. I’ll address them one-by-one:

The constitution is the only carry permit I need! It should be, but that is not the current reality we live with. We’re now double digits on the number of states that don’t require a permit, and hopefully that will continue to spread. I actually think H.B. 38 deserves kudos for recognizing the Vermont situation, and codifying nationwide Constitutional Carry for citizens whose states don’t require permits. I don’t know if that will survive the final vote, but it’s worth reaching for.

Most Americans are living under some kind of permitting regime, with about 1/3rd of our fellow citizens still living in may-issue states. None of these states will go shall-issue, let alone Constitutional Carry on their own. The only way you’ll ever carry in New York City, for instance, is if the federal courts or Congress force them to allow it, and they might not get into the finer points of reciprocity. There aren’t enough votes in Congress for just preempting permitting altogether, and if you think we have City of Bourne v. Flores problems with National Reciprocity now, wait until Congress tries to do something more appropriate for the Courts to do, like striking down state permitting laws.

This will be the federal camel’s nose under the tent! The federal nose got under the tent in 1934. In 1938, we let it under a little more. Then in 1968 we got half the camel under the tent. Then in 1994, three quarters camel. My point is, the Congress knows how to pass gun control laws. They’ve been doing it a long time. I’m not of the opinion that we shouldn’t move the ball forward because a future hostile Congress might pass gun control. That can happen regardless of whether we pass National Reciprocity. The question is this: do you want a future hostile Congress to have to start from farther away from your rights or closer? Would you like Bloomberg focused on repealing gains we can make now, or focused on gains we made last decade, like getting rid of gun bans and passing FOPA? I know I’d prefer fighting him back to today rather than fighting him back to what I already won last decade. That’s the choice.

Let me address the Brady Act analogy here, because I think it’s worthwhile. We made a number of concessions in the Brady Act that weakened our arguing position. We ended up arguing that instant background checks were great in order to stave off waiting periods. Well, if instant background checks are great for retail sales, why aren’t they great for every sale? You see where the other side can go with this. Well, since every sale gets phoned in to the FBI or State Police along with the buyer information, why can’t we just keep that? Just a little record keeping, you know. Nothing to worry about!

The compromises that went into the Brady Act inherently weakened our position for future fights. Where does National Reciprocity weaken our arguing position? That there should be no federal gun laws? I’m sympathetic, but if the Second Amendment is a recognized fundamental right, I want the federal government to be empowered to protect it against state encroachment, just like it does with other fundamental rights. Are we to believe that a hostile Congress has never thought of using its power to screw us until we came along and decided to use it to help? Congress liberally used its power to our detriment for most of the last century! Believe me, whatever your fears about what a Congress will do to state permit systems the anti-gun legislators have already thought about, and they’ll do that to us if they have the votes even if we never pass National Reciprocity.

Let me take one common fear: a future hostile Congress will mandate state standards for issuance, like they’ve done with Real ID. OK. I’ll buy that. Say a future hostile Congress decides that only states that require 8 hours or more of training and a live fire test qualify for national recognition. I would certainly oppose that. But are we still ahead of where we are now? Yes. Did the future  hostile Congress just blow political capitol pissing off 10 million people who have permits in this country just getting halfway back to where they were? Yes. Would you rather them chip away at gains we made a decade ago instead? Right now their goal is extending the Brady Ac, repealing FOPA, and as a stretch goal banning “assault weapons.” If we pass National Reciprocity, that’s going to become their target. That’s a good thing.

It’s a useless bill. My guns are illegal in the hostile states!  H.B. 38, and most of the other proposed National Reciprocity laws that have been proposed have attempted to preempt local gun bans. If you look at the language of H.B. 38, it allows anyone to carry a handgun (other than a machinegun or destructive device). It makes clear that magazines and ammunition are included. Now, I actually think H.B. 38 needs to be made more clear that Congress is intending to preempt state law in this matter. It should make clear that any handgun legal under federal law is covered, regardless of state laws on magazine capacity or ammunition type. But there is an attempt to ensure you can carry everywhere with the guns you own.

New Jersey will just change its laws to eliminate the permits. So will other states! That might be so. But I’d still argue we’re way ahead. Will states that issue but have bad reciprocity arrangements, like Minnesota, Nevada and Oregon, repeal their laws? Probably not. Will New York City, which hands out carry permits as patronage, repeal theirs? Maybe. But maybe not. Don’t underestimate how powerful patronage is. We don’t know what will happen. Also, what happens if a future Supreme Court rules that outright prohibitions on carry are unconstitutional? This puts a lot of the hostile states in an outright bind. It’s worth doing. Also, don’t underestimate our ability to make improvements to the law after they pass it and the sky doesn’t fall. Perhaps repealing concealed carry won’t get New Jersey out of recognition forever.

The Constitutional Authority for National Reciprocity

I’ve run into a few threads over the weekend discussing National Reciprocity, and the power Congress is relying on to pass it. There seem to be a number of misconceptions.

First, Congress is not required to state what power its authority to pass a bill falls under, and so often bills do not discuss that. The argument for whether a bill falls outside of Congress’ enumerated powers is an argument for the courtroom. Previous National Reciprocity Bills have had statements speaking to Congress’ power to pass it, but this latest bill, H.B. 38, does not. It is probably best that the bill does not discuss that. National Reciprocity relies on three powers of, with some arguably weaker than others. I will discuss them from the strongest to the weakest (in my opinion, reasonable people can differ):

Commerce Clause: Much of our federal gun control law rests on Congress’ power to regulate interstate commerce. That’s why in much of federal gun control law you see “in or affecting interstate or foreign commerce, ” and why you’ll also find that type of language in H.B. 38. Granted, I strongly believe the Courts have interpreted this power way too broadly, but if we can prosecute felons for possessing firearms because that firearm was once transported in Interstate or Foreign Commerce, it would be interesting to see the Courts’ reasoning on why it can’t apply to firearms carried by civilians. That’s why I believe this is probably the strongest argument for the bill, even if I don’t personally like it. The apple cart that would be upset by the Courts rejecting what is sometimes called the “Herpes Theory” of the Commerce Clause is big and consequential enough I don’t think the federal courts would want to risk it.

14th Amendment: A lot of people have argued that the 2nd Amendment trumps the 10th Amendment. This is true, but only because the 14th Amendment made it so. The 14th Amendment prevents states from interfering with the civil rights of Americans, and also gives Congress the power to enforce that amendment via legislation. This is the power I’d like to be the most solid, but we have a big complication with City of Bourne v. Flores, which argued Congress could not extend the meaning of a right beyond what the Courts have recognized. I would argue Heller and McDonald both acknowledged a right to carry defensive arms, so in this case, Congress is not overstepping its bounds. Additionally, there is a Right to Travel under the 14th Amendment that is recognized by the Courts, and which provides us with additional structure in this area. Finally, National Reciprocity is something more suitable for Congress’ powers than the courts. The courts can strike down laws, but the creation of a reciprocity regime is something only Congress can do appropriately.

Full Faith and Credit: A lot of people mistakenly believe driver’s licenses are recognized in every state because of this clause. That is not the case. Driver’s licenses are recognized in every state via an interstate compact, or by direct state recognition. It is purely a function of state law. What the Full Faith and Credit Clause means is not terribly well defined, and I believe we’d have trouble with the “public policy” exception the Supreme Court laid out in Pacific Employers Insurance v. Industrial Accident. I think this is the weakest power of the three, but Congress has never done anything quite like National Reciprocity, so it’s still there.

If you want to read a more in-depth analysis of what I’ve discussed here, I’d recommend Clayton Cramer’s new paper: “Congressional Authority to Pass Concealed Carry Reciprocity Legislation” Please keep these arguments in mind when you run into people spouting “states rights” arguments against National Reciprocity. You’ll find a lot of conservatives doing this if you look. Congress has had the power and used the power to protect the civil rights of Americans since the end of the Civil War. It should not be shy about using those powers to protect the Right to Keep and Bear Arms any more than it other civil rights which have been long protected under federal law.

Weekly Gun News – Edition 53

Welcome to the 53rd edition of Weekly Gun News, also known as “My browser is drowning under the weight of dozens and dozens of open tabs.” Maybe some of them will make it here, but I usually end up only posting maybe a third of what I have open. Some news seems interesting at first, but then it gets more “meh” as you take a second look. But here goes:

Headline Fail: “With 2016 over, a toddler has now shot a person every week in the US for two straight years.” Someone should probably apprehend the Diapered Killer before he kills again!

Lori Haas of Coalition to Stop Gun Violence is a sad panda. Though, the massive increase in the federal government under Obama has blued Virginia, perhaps irrevocably.

Lower Merion Township, PA will appeal ruling, which nixed their ordinance banning guns in municipal parks, to the PA Supreme Court. The township argued it had a right to control its own property, Superior Court ruled that preemption still applied. Under the existing preemption statutes, local governments have typically lost, but it’s hard to get to court because of standing requirements.

Czech President Milos Zeman encourages Czech citizens to arm themselves.

The feds are appealing the Binderup ruling to the Supreme Court. The Third Circuit ruling in Binderup essentially said that gun rights could only be stripped away for serious crimes, and a misdemeanor with no element about unlawful use of force does not rise to that level. I had lost track of the case since District Court, but it won all the way up to Third Circuit en-banc. UPDATE: Oops, no they aren’t appealing. This is what happens when I let posts sit in the queue for days.

Makes you wonder how often this kind of thing is going to happen.

Debunking the arguments against Constitutional Carry. With patrol cars now being networked, cops can tell if someone is prohibited or not. Even at a practical level, permits are antiquated.

Shannon Watts lands an article in Teen Vogue. Do teens even still read magazines?

A War Without Rifles.

Are Gunsmiths Screwed?

Massad Ayoob: The Coolest Shooting Match Ever is Back!

Off Topic:

Reason: “If You’re Freaking Out Over Donald Trump’s Presidential Powers, Thank a Liberal!” Both Bush and Obama greatly expanded executive power. Do you see Trump trying to undo that? I don’t. Thanks guys.

I’m starting to think this might be a good idea: “The failed F-35 fighter-jet program can’t be fixed — it’s time to turn the page.

Tam: “A God-bothering SoCon drug warrior career politician for GOP AG? Wow. That’s so maverick. I can feel the swamp draining.” I know NRA has been pulling for him, and certainly Sessions will help us there, but the drug war is yet another issue that alienates the GOP from younger generations.