Snowflakes in Hell

Well, this is one way to kill lawsuits based on standing.  But hey, if towns start shedding their handgun bans based on Heller, I don’t see how that’s not a good thing.  Do the Brady’s still want to keep calling this a victory?  Bryan Miller?  Mexico is calling.

NRA has filed suit in California, Chicago, and several of its suburbs:

The San Francisco lawsuit challenges a local ordinance and lease provisions that prohibit possession of guns by residents of public housing in San Francisco. NRA is joined in that suit by the California Rifle and Pistol Association and the Citizens Committee for the Right to Keep and Bear Arms.

The Chicago case challenges a handgun ban nearly identical to the law struck down yesterday in Washington, D.C. The other Illinois suits challenge handgun bans in the suburban towns of Evanston, Morton Grove and Oak Park.

All five suits raise the issue of the application of the Second Amendment against the states through the Fourteenth Amendment, known in constitutional law as “incorporation.” Because Washington, D.C. is not a state, incorporation was not specifically addressed in yesterday’s Supreme Court decision in District of Columbia v. Heller, but the decision did repeatedly equate the Second Amendment to the First and Fourth Amendments, which have applied to the states for 80 years.

We have won the battle over the meaning of the second amendment.  Now we begin the battle over incorporation.  NRA’s strategy, no doubt, is to try in several federal circuits as to have the maximal likelihood of success in at least one of them.

With the “common lawful use” test spelled out in the Heller decision, we’re going to want to eventually challenge the bans on assault weapons in California, New Jersey, Massachusetts, New York, Hawaii, Maryland and Connecticuit.  In order to do that, we need more than anectdotal evidence that AR-15s, and various other firearms outlawed under these state bans are, in fact, quite common, and are of the type protected by the second amendment.

So now that you’ve spend a lot of time and energy researching the decline in hunting, why don’t we think about ways to get our friends in California and New Jersey contributing to Pittsman-Robertson again by sending copious amounts of .223 and 7.62×39 downrange?

Randy Barnett has discusses some thoughts.  By this standard he proposes, governments must allow some form of carrying a firearm for self-defense.  They may be able to regulate, and license certain manners of carrying a firearm, but there must be some means to allow for the right to happen.

I look forward to one day carrying a firearm down the streets of New York City should this come to pass.  I think it will happen in my lifetime.

Did he really say that?  Why, yes, he did say that.  At American-Manifesto:

“Right to carry states are 48 of the 50 states right now…If there are clear restrictions on people [felons and the mentally ill] and to make sure that they know what they’re doing with the gun, that they pass the background checks, that the local police have signed off on it, that’s something that doesn’t cause that many problems.” [emphasis added]

Are the Brady’s retreating on concealed carry?  Can you believe he even said that?  I guess he was tired indeed, or maybe the Montezuma was getting to him.

Joe Grace, executive director of CeaseFire PA, continues his string of declaring victory while being devoured by the jaws of defeat.

Alan Gura is forging ahead to challenge the Chicago handgun ban, along with ISRA, and SAF.  We wish him luck.  NRA says they will file some suits in California as well.

Megan McArdle says that guns are a feminist issue.  Bitter and I couldn’t agree more.  Someone forgot to tell Justice Ginsburg though.

Seen at Volokh:

So, carrying swords and pistols, for the purpose of dueling, will likely remain illegal? I for one, am disappointed.

Ahab has a link to Wayne LaPierre and Paul Helmke on MS-NBC’s hardball.

UPDATE: I’m willing to bet that Paul and Wayne can probably at least agree that Chris Matthews is a horse’s ass.

… and all I got was this lousy headache.  Yeah, from this.  Drunk blogging climaxed right around this post, which you might have guessed from the swearing, and my not being my normal, analytical self.  Of course, that’s not to say I still don’t stand behind what I wrote.

From the Juliet Leftwich (great name for a gun grabber, isn’t it?) lead counsel for Legal Community Against Gun Violence:

“We are concerned the resources are going to be diverted to the defense of laws already on the books”

That’s music to my ears.  Welcome to the post Heller world!

Ilya Somin has a sobering post comparing gun rights to property rights:

With very few exceptions, the effort to strengthen protection for property rights was categorically opposed by the Court’s liberal justices. Any property rights case that got to the Court almost starts with four guaranteed votes in favor of the government. This has two important effects.

First, any division in the ranks of the conservative justices is likely to be fatal for property rights in the case at issue. For example, Justice Anthony Kennedy voted with the liberal justices in Kelo and several other important property rights cases, leading to important setbacks for property supporters.

This is why we must vote McCain to keep Obama out of the oval office.  McCain is far from perfect, but neither were the two Bush’s, which we would be facing a loss on Heller had it not been for electing them.

As with property rights, the ideological division on the Court also leaves any gains vulnerable to future reversal in the event that a Democratic president is elected. The liberal justices’ opposition to gun rights is also shared by the vast majority of liberal judges on the lower courts. If Obama (or any other Democrat) becomes president, they will likely appoint justices who share these views. Even if Obama does not make this issue a major priority in his nomination decisions, the fact that he will want to nominate justices who are liberal on other constitutional issues will ensure a strong likelihood that they would also embrace the dominant liberal position on this issue. This happened in the case property rights as well. Opposition to property rights was probably not a major factor in Clinton’s choice of Ginsburg and Breyer. Indeed, Clinton was among those who later vehemently denounced the Kelo decision. Nonetheless, these two justices turned out be property rights opponents (even in Kelo) precisely because Clinton did make a priority of appointing judges who are generally liberal, and such judges are likely to be anti-property rights.

Seriously, McCain sucks, except for the alternative.  Let’s not get complacent here, or this day will be all for naught.

Go see the video Jacob has up, and be outraged.  He also has the Brady Campaign reaction.

The Chicago Tribune says we would repeal the second amendment.   I propose we repeal the first amendment, but only as it applies to the Chicago Tribune!  Piss on my rights, I piss on yours.  It’s a simple equation.  We have to respect each others rights, otherwise this grand 232 year old experiment is finished.  Think about it.

Hat tip to Keyboard and a .45

The Virginia Gun Owners Coalition, has a different take on Heller.   Let me take the chance to just throw this out there: these guys are a bunch of angry fucking idiots, and basically aren’t helping the cause one god damned bit. Got that?

This is a triumphant day.  A key argument of the anti-gunners, which is that the second amendment does not protect any right is now history.  The Court has left the door open for other battles.

Also, I have to ponder about the dichotimty of criticizing the National Rifle Assocation for trying to derail the case in the first place, and then criticizing them for the result.  Pick one or the other guys, or I’m just going to conclude you’re just out to piss on everything, and I’m fucking tired of it.

And whether they want to admit it or not, if it weren’t for the election of George W. Bush, we would not have any victory here.  We’d now be facing the second amendment being effectively gone.  George W. Bush, who endorsed renewing the assault weapons ban upon his election.  George W. Bush, who’s solicitor general argued against us.  George W. Bush, who nominated Maximum Mike Suillivan to be head of ATF, and has stood by him throughout everything.  This goes to show how history can act through imperfect men.  Because when it came down to what’s really important, Bush was good enough.  Really two Bushes were good enough if you consider Clarence Thomas.

That’s what a lot of gun rights activists fail to understand, and fail to appreciate, and why I’m suggesting we elect another imperfect candidate to succeeed George W. Bush, in the form of John McCain, because we simply can’t afford Barack Hussein Obama appointing the next several justices.  We know that Obama will nominate justices who would be willing to overturn Heller.  That’s not even a debate; he will do it.

So bitch and moan things didn’t go 100% your way.  I’m tired of being angry.  It’s time to cut that crap out and make a difference.

He says that law evolves, but he also says:

“What we’re seeing on the streets of Philadelphia is not self-defense. It is sensless violence and slaughter.”

Nutter says it’s not lawful ownership but illegal activity that is the source of the gun violence in the city.

Really?  Because my friend might have a different view on this one.  Sorry Mayor, just because your lapdogs in the media aren’t reporting cases of self-defense against the criminals whom you have allowed to run amok, doesn’t mean they aren’t happening.

Let’s defeat some stereotypes about the backgrounds the kind of people who support gun rights come from.

• Our Heller opinion writer, Justice Scalia, is the son of Italian immigrants.  Born in Trenton, New Jersey and raised in New York City, and graduated from a Roman Catholic High School.  Graduated summa cum laude from Georgetown, and went on to Harvard Law School.  He was nominated to The Court by Ronald Reagan.
• Joining in the opinion is fellow Italian-American, Justice Alito, who was also born in Trenton, New Jersey, and raised in Hamilton Township, just outside of Trenton.  He attended Princeton University, and Yale Law school.  He is a Roman Catholic.  He was nominated to The Court by George W. Bush.
• Justice Kennedy comes to us from the number one Brady ranked state of California.  He attended Stanford University, with his law degree coming from Harvard.  He is also, along with our previous two justices, a Roman Catholic.  He was nominated to the Ninth Circuit Court of Appeals by Gerald Ford, who also nominated Justice Stevens to the Supreme Court.  He was nominated to the Supreme Court by Ronald Reagan.
• Justice Thomas is from Georgia.  In addition to being an African-American, he is also a Roman Catholic.  He attended the College of the Holy Cross in Worcester, Massachuetts, and helped found the Black Student Union at that school.  He went on to Yale Law school.  He was put on the Supreme Court to fill the vacancy left by Thurgood Marshall b George H.W. Bush.
• Chief Justice Roberts was born in Buffalo, New York.  He is Czech on his maternal side, and his father was an executive with Bethlehem Steel.  The Roberts family grew up in Indiana.  He attended a Catholic boarding school in LaPorte, Indiana, and attended Harvard College, and eventually went on to Harvard Law.  After serving as Deputy Soliciter General in the first Bush Administration, he was appinted by the same administration to the D.C. court of appeals, and finally the Chief Justice by the second Bush Adminsitration.   He is a Roman Catholic.

The backgrounds of these men are as varied as one can imagine, except for the fact that they are all Roman Catholic.  Alito and Scalia have chewed much of the same ground I have.  I live ten minutes away from Trenton, and grew up not far from here.  This is the last place you’d imagine that two out of the give majority justices would be from, but there you go.

I gave Bitter a hard time for drinking her champagne out of a beer glass, but when we celebrate, we celebrate big.

You will notice that we are using founding father glassware, if you zoom in to the full picture.  My glass is a Thomas Jefferson’s Monticello snifter, and Bitter’s is a James Madison beer glass.  I think both gentlemen would be proud that we have not completely forgotten them, and the instrument they created.

In addition to the drinks, Bitter prepared a lovely Italian dinner, in honor of Justice Scalia, complete with cannollis.  I honor Justice Kennedy merely by being Irish.  For Chief Justice Roberts, the last new shooter I took to the range was a Roberts.  And for Justice Alito, well, he’s another Italian! I’m still trying to figure out how I honor Justice Thomas.

… over at the ACLU.  You’d imagine that one of the most prominent decisions regarding the Bill of Rights in years would at least be deserving of a mention.

UPDATE: Looks like they did release something, but it’s not prominent.

Bryan Miller isn’t too displeased with the ruling.  I don’t know why, because as the hottest selling target rifle in country today, it’s hard for me to see how the AR-15 doesn’t pass the “common use” test, but they are banned in New Jersey.  Nor do I see how New Jersey’s licensing restrictions, which I do believe meet the definition of “arbitrary and capricious”.

Mr. Miller has won no victory here.  You can bet that New Jersey’s licensing scheme will be under the gun in future cases.  It’s “assault gun” ban definitely will be at some point.  One has to imagine unless Justice Scalia penned the opinion “MACHINE GUNS FOR EVERYONE!” they’d be declaring victory, regardless of how much of a loss it actually is.  We have lost no ground, and much of what the gun control movement has worked for is in jeapoardy.  Sure, the Supreme Court is likely to uphold challenges to the instant check system, and restrictions on felons, but I don’t think any of us thought that The Court would go that far.  Everything else is not decided.  I would not be feeling so great if I were Bryan Miller.

SayUncle talks about how DC is digging its own grave.  To my mind, it’s not necessarily a gift to us that they are being obstinate, but a problem.  NRA needs to push Congress to set The District’s gun laws for them, and preempt city council from regulating firearms entirely.  We don’t want to be in a situation where we have a constant back and forth in the courts until eventually DC comes up with a regulation The Court will accept.  The next step should be going after the incorporation angle, using bans and regulations that are similar to Washington D.C.

Here’s a statement from the Brady Campaign on the whole Heller thing.   Looks like Josh Sugarmann isn’t happy either, even though he’s now in a prime opportunity to take advantage of this decision.  I am not without a heart.  I feel for them.  I really do.  So I’m going to offer my recommendation to help ease the pain of this decision.

It’s readily available, especially in DC, it’s cheap, and it will make the pain go away very quickly.  When it comes to assuaging your sorrow, there’s nothing in the world that beats tequila.  I can speak from experience here.  So Peter, send Doug to the liquor store, crack open a bottle, and get started.  You can drink to Mexico, where guns are still illegal.  I wouldn’t wait until the close of business.  I’d get started now.  Invite Josh over too.  I’m sure he’ll appreciate it.   Be sure to get pictures of Paul looking down the neck of an empty bottle, looking sad.  We really would like that.

Four justices of the Supreme Court of the United States were completely willing to read out part of the Bill of Rights because they don’t like the result that comes from it.  We can seek comfort that we got a five vote majority, but it’s a little close for my comfort.  Come this fall, we must do absolutely everything humanly possible to ensure that Barack Obama is defeated, or watch future courts retreat from the Heller ruling faster than you can shake a stick.  While Justice Stevens and Ginsburg are likely retirees under an Obama administration, it can’t be ruled out that Justice Scalia, or Kennedy, who are both getting up there in age, won’t end up leaving the court, or dying.  We absolutely must not allow Obama to win, or that could undo all of this.

The gun control movement will not take Heller lying down.  They are not going to crawl off into a corner and die.  This changes the game we’re playing, but it doesn’t end it.

The Court did not much address the issue of machine guns, but the “common use” test that it prescribes will be problematic.  However, I think The Court has set itself up for an intellectual bind.  Machine guns are not in common use, but that’s entirely because of the 1986 prohibition on new registrations preceded by 18 years of heavy regulations inder GCA 68, and decades of regulation prior to that under the National Firearms Act.  In short, machine guns fail the common use test because government regulations and prohibitions make them uncommon.   I think this is an argument that could be raised later that could possibly ease restrictions.

I think there’s ample language in the opinion to argue that the second amendment is incorporated against the states, and that will be the next step.   Chicago, New York, and I think, even Massachusetts and New Jersey’s licensing restrictions can be construed to meet the standard of “arbitrary and capricious.”  In fact, I would view this somewhat similar to “seperate but equal”  In that the Civil Rights movement was later able to argue that seperate can never be equal.   I think one could perhaps argue that licensing, or having to get the government’s permission, can always be subject to arbitrary and capricious standards.

On the “bearing” of arms, I think The Court leaves open the possibility, and perhaps even suggests the possibility that the state must allow some form of carrying arms for self-defense.  This would presumably mean openly carrying of arms being legal everywhere, with states still free to regulate wearing of weapons.  But I would argue that perhaps the states can regulate concealed firearms, they may not outright prohibit them, since, given changes in society since the 19th century, that amounts to the destruction of the right.

My opinion, having read Justice Scalia’s opinion on this case, is that Heller is better than I had hoped for.  I think this lays effective groundwork for taking this issue forward, and the lower courts are going to have a difficult time skirting around it.