Snowflakes in Hell

It’s not just a little gun control the Democrats seeking the gubernatorial bid are going for – they are all in. It’s a sad thing to say – the most moderate only wants to ban your EBRs. And, to some degree, Jack Wagner really only said he supported it previously. I haven’t seen him release an action plan to take them. And, yes, that puts him far above the other options for Democratic gun owners have on their primary ballot.

Take Dan Onorato. Apparently, there was early speculation that he was pretty pro-gun. He squashed that rumor at his campaign launch saying that any speculation about his support of the Second Amendment was “a mischaracterization.” Turns out that may be the understatement of the year.

Yesterday, he released his “plan for safe communities.” In it, we find a plan to end preemption (say goodbye to carry in Philly!), a proposal for statewide lost-and-stolen, and a plan to challenge Heller/McDonald.

Say what?

Yup. Dan Onoranto wants to force all gun owners who have minors in the home to lock their guns. Apparently he missed that key part in Heller:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

You don’t lose your right to read scary news or watch violent movies just because there are kids in the home. You shouldn’t lose your right to self-defense over the same. There is a factor of common sense, but that hasn’t been a serious problem for the overwhelming majority of families. Just like most parents don’t let their 6-year-old watch a gory horror flick or read extremely graphic descriptions of war to them at bedtime, gun owners take care when children are around their guns. There’s a difference between discovering the right solution for your home and the state removing your right to immediately defend yourself and those same children you love.

I think we can all agree that any perception of Dan Onorato supporting civil liberties is, in fact, a mischaracterization. He was absolutely right about that – just about the only thing he’s been on right on in this campaign.

From Sanford Levinson, Professor of Law of the University of Texas, on interpreting the Constitution:

“It really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens. Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.”

He must hang out in very different bars than the ones I’ve known, but the assertion is interesting. The article goes on to say:

Those arguments can and should have consequences, according to scholars who endorse what they call “popular constitutionalism.” “Basically, it’s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,” Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.

This is versus originalism, which essentially argues the meaning of the constitution doesn’t change over time, and its meaning is divined either through original public meaning or original intent (of the founders). I’m probably a bit more of a pragmatic originalist. I think you have to be rooted in the text of the document, and when its meaning is apparent and has a clear meaning, you interpret along textual lines. But I also tend to agree with Jefferson, who once wrote:

The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.

My big problem with doctrinaire originalism is precisely what Jefferson speaks of here, of previous generations imposing their “burdens on future generations.” So when Alan Gura, in the the oral arguments of McDonald says the court should be originalists in its identification of a right, but take a modern view of that right, I can relate to what he’s saying.

How much of a role should originalism play in constitutional interpretation versus such a “Popular Constitutionalism” method? Keep in mind you will generally arrive at an individualist Second Amendment either way. But originalism and popular constitutionalism probably yield different results when it comes to interpreting the boundaries of that right. The founders’ concern, which prompted the inclusion of the Second Amendment, had very much to do with the distribution of military power in society and keeping military power be in the hands of the people. It’s not that they didn’t believe in individual self-defense, but that wasn’t the primary intent. From the founding up to the civil war, the public understanding became centered around individual self-defense. This is largely the popular understanding today, and what The Court went with in Heller. It’s always seemed to me that original public meaning originalism (as supposed to original intent) is actually a form of popular constitutionalism, though one that looks back at the meaning at the time the text was adopted, instead of how people view it today. A Second Amendment right centered on the original intent distribution of military power probably looks very different from one centered on self-defense in an original public meaning context, which looks different yet from one in a modern popular constitutionalism context.

I’m not sure that any method has to necessarily disparage the other when it comes to the right to bear arms, but which one is most legitimate? Which one is most rooted in the real world? Which one best preserves liberty?

The Brady Center are elated over two recent Massachusetts Supreme Judicial Court decision in regards to gun rights. Two two cases are Commonwealth v. Runyan and Commonwealth v. DePina. Both cases rest a great deal of their reasoning on the fact that the Second Amendment is not incorporated against the state. In the latter DePina case, the entire Second Amendment claim would seem to rest on the lack of incorporation, and also on a related state case Commonwealth v. Davis, which gutted Massachusetts’ right to bear arms provision from its Constitution.

There is some glimmer of hope for the Brady Center though, in the Runyan case, the other leg on the Second Amendment claim was that Massachusetts safe storage law is distinct from that of the District of Colombia. The Massachusetts SJC notes:

Under this provision, an individual with a valid firearms identification card issued under G.L. c. 140, § 129C, is not obliged to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual’s control. A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device. The gun owner’s obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner’s immediate control.

That may be so, but the exception only provides for carrying or immediate control. Does that apply to sleeping with a loaded gun in your bedside drawer? It’s interesting that the SJC notes in Footnote Seven:

We note that the Court in Heller, supra at 2820, declared that its analysis should not be taken to “suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” We do not, however, decide whether the defendant’s alleged violation of G.L. c. 140, § 131L (a ), could survive a motion to dismiss if the Second Amendment were made applicable to the States through incorporation under the Fourteenth Amendment’s due process clause.

To be honest, the SJC probably did us a favor by dismissing Runyan, because I don’t really like the facts of the case. Runyan came about because the mentally disturbed eighteen year old son of defendant Richard Runyan was firing a BB gun at his neighbor’s home. When police arrived, they asked the son if there were other guns in the house, which lead to the discovery of an unsecured rifle. Runyan was not home at the time. If G.L. c. 140, § 131L (a) is to be held unconstitutional, Runyan isn’t the case to do it with. The facts of the case are not good. It would be far better to pursue this claim with a defendant who was home at the time police discovered an unsecured firearm. Runyan also possessed an expired license for the rifle, as required by Massachusetts law, so that further complicates the claim. As it is, Massachusetts used to issue lifetime licenses, but later changed the law, so there are a lot of Massachusetts gun owners walking around with licenses that don’t have expiration dates on them, but are nonetheless expired because they were unaware of the change in the law.

We may have better luck going forward, but I would say this wasn’t the case, and that the Massachusetts SJC probably isn’t a favorable venue for future cases.

This article from the Pittsburgh Tribune-Review is on our side, and I’m happy about that, but:

If that indication from oral arguments in McDonald v. Chicago holds true, the court will quash the notion that the Second Amendment somehow is a collective, “militia”-based right. If the rest of the Bill of Rights protects individual rights — and it does — so must the Second Amendment.

We won that argument already, two years ago. This one is just about incorporation.

Looks like the transcript just came out. We’re sitting in a bar under the NRA-ILA Federal Affairs office in DC going over it. Chris Cox was kind enough to offer to print out copies for us, which we gladly accepted.

In a way, you’re all probably more informed than me being here in DC on the ground. Having only handheld PDAs, it’s rough.

Everyone I’ve spoken to is optimistic. While the Court seemed to quickly shut down the Privileges or Immunities route, they absolutely grilled into Feldman, the attorney for Chicago, who seemed to have great difficulty with his argument. I asked Dave Hardy as he came out of the court what he thought, and he said, “I think we have five votes.”

Let us hope. We still have a long road ahead, regardless.

Today is the big day. The day the Supreme Court will hear both sides in whether or not the Second Amendment applies to state and local governments through the Fourteenth Amendment, and also on which clause of the Fourteenth Amendment incorporates those rights. I’m about to head over to the Supreme Court building to try to cover the happenings outside. I will try to provide updates on here, but Twitter is going to be easier for me. At this point, it’s probably too late to get inside to hear oral arguments. Reports are that about 50 people were outside as of about 3AM, and 50 is about the number of seats available.  The Supreme Court is hearing two cases today, which unfortunately reduces seating capacity for McDonald.

From Fox News:

Someone wrote this who kind of sort of knows the legal issues in McDonald, but not really. We’ve already won on most of the issues presented here. This case is about incorporation, they got that part right, but the question presented to the Court is whether it’s incorporated under the Privileges or Immunities clause of the 14th amendment, or incorporated through the due process incorporation route that’s been how we’ve done things in the 20th century. This has implications far beyond gun rights, which you’d expect a newspaper like the LA Times to cover.

Hat Tip to Dave Hardy for the article. Hat tip for also choosing a great Chinese place in Northern Virginia for dinner too.

Looks like Saul Cornell and Dennis Henigan have gotten together to disparage the Second and Fourteenth Amendments in this months edition of the National Law Journal. Saul Cornell argues the 14th Amendment has no problem with disarmament, as long as it’s done equally:

There are some facts that are beyond dispute. Although there is ample evidence that the 14th Amendment was widely understood to bar the selective disarmament of blacks by Southern governments, there is absolutely no evidence to suggest that anyone believed that the 14th Amendment prevented the states from passing neutrally applicable gun regulations designed to promote public safety.

The argument would seem to be that because the post-reconstruction courts effectively eviscerated the 14th Amendment, so that Jim Crow could properly imposed on the South, that of course means there was never intended to be any right-to-bear arms, by blacks or anyone. This strikes me as a weak argument given our modern understanding of the amendment, and just so there’s no misunderstanding about the case which Saul Cornell cited, you can read about it here.

Backing up Saul Cornell is Dennis Henigan, who says that guns are such a menace to society that it justifies essentially ignoring, or largely ignoring, one tenth of the Bill of Rights:

There is at least one respect in which the new right to have guns is vastly different than other rights. A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. However the Court decides the incorporation question, its discussion of Second Amendment issues in McDonald and its future Second Amendment jurisprudence must recognize that the Second Amendment is, indisputably, the most dangerous right.

I don’t know about that Dennis. Ideas can be some of the most dangerous things humans can generate, and speech is the primary mechanism by which these ideas are spread. I mean, how many people did this idea kill?  Or this one? How long did this idea relegate a significant portion of the American population to second class status? This man’s speech and a set of box cutters killed 3000 Americans and dragged us into a decades long war.

Gun are potentially dangerous. No one denies that. But it’s bad ideas, conveyed by speech, that’s responsible for the worst humanity has to offer. In this country, we protect speech, of both good and bad ideas, in the belief that the best way to counter bad ideas is to challenge them with good ones. Does that always work? We accept a lot of risk allowing free speech in society, and most Americans, including me, wouldn’t have it any other way. If the best defense against bad speech is good speech, maybe it’s not too far of a stretch to suggest that the best defense against bad guys with guns is more good guys with guns. Why is that so alien to our constitutional framework?

Posting light this morning. Bitter is busy getting ready for DC, and I have some issues to clean up at work. We’re headed there for the McDonald case, and to meet up and say thank you to some of the people involved in the case. Win or lose, the attorneys and plaintiffs involved in this venture deserve our respect and admiration. I feel the least I can do is be there, if it means being outside, quietly cheering them on. Let’s hope for a great victory.

Looks like the fourth circuit did a pretty thorough analysis of why the federal laws barring domestic violence misdemeanants from arms aren’t “presumptively constitutional” under the Heller language, unfortunately they made it an unpublished opinion, so it has no precedential value.

The ruling from Washington State Supreme Court yesterday which recognized the Second Amendment as incorporated, shows some promise when it comes to the Right to Keep and Bear Arms as applied to minors. It would seem to me that it’s correct to say minors can’t be outright prohibited from possessing arms, but that states may require adult supervision of the possession.

Looks like Alan Gura and Paul Clement will be going up against James Feldman:

A Washington, D.C. solo practitioner with extensive experience before the Supreme Court will argue in defense of the city of Chicago’s strict handgun ordinance in a closely watched Second Amendment case next month.

James Feldman, who argued 45 times before the high court as an assistant to the U.S. solicitor general, got the nod to argue in what is widely viewed as an uphill battle for gun control advocates. The case is McDonald v. City of Chicago.

He’s going to have a lot of work cut out of him to try to argue such a legally untenable position.

Dave Hardy has an excellent summary of the reply briefs in the McDonald case.  These are the briefs filed by the Petitioners (McDonald et al. represented by Alan Gura) and the Respondents in Support of the Petitioners (NRA represented by Stephen Poss and Stephen Halbrook), an excerpt:

The Steves (Halbrook and Poss), briefing for NRA, put their main weight on this clause. Chicago’s claims are paradoxical — that infringing a right can contribute to “ordered liberty.” Its idea of ordered liberty is that of a police state, order always triumphs over liberty. It claims falsely that the 14th Amendment is all about equality, not only equality of rights but equality of their infringement. Presumably, Chicago thinks the Black Codes would have been no problem if their oppressions applied to everyone. The framers of the 14th Amendment would beg to disagree.

Go read the whole thing. I haven not yet had time to read any of the briefs yet, and I don’t know when I will given my work schedule, but I am going to try to be present in DC for the McDonald case. Still deciding whether I want to camp outside.

Dave Hardy points to his original 1974 law review on the Second Amendment. He scanned the whole paper if you want to read it. Pretty interesting.

Thirdpower wants to know if you feel safer knowing that if the Brady Campaign & Michael Bloomberg had their way, this boy would never be able to own a firearm in his life.

Dave Hardy has a law review article out examining the Stevens Dissent in DC v. Heller, here’s the intro:

DISTRICT OF COLUMBIA V. HELLER ESTABLISHED THAT THE Second Amendment’s right to arms existed as an individual right, with no requirement that the rights-holder be functioning as part of a well-regulated militia. While the majority opinion has been subjected to extensive review and commentary, the Steven dissent, joined by four members of the Court, has not. The dissent came within one vote of becoming the majority; it clearly merits close examination.

Had the dissent become law, the Court would have informed the American people, seventy percent of whom believed they had an individual right to arms, that their rights-consciousness was sadly mistaken. If done on the basis of sound research and reasoning, this would involve no more than the Court performing its duty. An examination of the dissent suggests, however, that the Court would have been taking this position based upon surprisingly thin reasoning and evidence.

Footnotes removed for purposes of quoting. I joke when I say light reading. It’s very in depth. I won’t have time to read it all until later, but it looks good.

Today Alan Gura filed an Opposition to NRA’s Motion for Divided Argument, as is reported by SCOTUSBlog. A few things to clarify from the previous post. NRA is asking for 10 minutes out of the 30 allotted to the Petitioners, not for half the time. But also keep in mind that the State Attorneys General have also filed a Motion for Divided Argument, asking for ten minutes themselves. It is exceedingly unlikely that the Court will grant two motions of this type, and also unlikely they will expand oral arguments.

I don’t think NRA filed this motion out of any foul intention, or with the idea in mind to throw a monkey wrench in anything. That said, while I understand and recognize the legitimacy of NRA’s likely concerns, I do not agree that filing this Motion for Divided Time was an appropriate outlet. Let me briefly explaining my reasoning.

• The Motion itself is very unlikely to succeed. The Court typically only grants these types of motions under pretty limited circumstances, and after reading NRA’s Motion and the Petitioners opposition to the motion, I think that NRA is on shaky legal ground. The long odds on the success of the motion make its use as any kind of vehicle suspect.
• Even if the Hail Mary tactic works, what does it really get you in relation to your core concern? So the National Rifle Association gets Clement 10 minutes of time before the Court. It’s not like Clement gets to make a ten minute speech on the merits of due process. He’ll pretty much be answering questions posed by the justices just like anyone else who would occupy that hot seat.
• At this point in the case, Alan Gura really needs to be spending his time and energy responding to Chicago and all the briefs filed in support of the respondents. I don’t think spending time and energy writing oppositions to motions that he did not invite into his case is really the best use of his time.

Ultimately my concern is that this jeopardizes relationships that are going to be important for NRA going forward after McDonald, and without much to show for it when all is said and done. I might reconsider my opinion if the Court, against all odds, grants the motion (because of what that might hint at), but I don’t think that’s likely at this point. There’s been a lot of speculation about what the court was hinting at when it granted cert for McDonald and kept NRA on hold. You can see some of that here. On what strategy would be best for McDonald, I think reasonable people can disagree on, but the Supreme Court granted cert on this case. Our rights are now in Alan Gura’s hands, which I think are quite capable. I think NRA has already brought much to this case in terms of laying a strong political basis for gun rights, getting the right people elected who put the right people on the Court, and in terms of bringing resources to bear to aid Heller and McDonald. These are commendable and worthwhile contributions. I don’t think this Motion for Divided Time fits within that, and seems to me to be not be very well thought out.

While I’ve been busy with work related items, it’s gotten around that NRA is filing to get some time during the oral arguments of McDonald, effectively splitting Alan Gura’s time before the Court. I’m not meaning to take sides in this, because while I understand NRA’s concern, I’m also willing to give Gura the benefit of doubt in how to argue his case. What I would like to do is explain the issues here as best I can, and try to convey what each side is trying to achieve, and why this might cause some conflict. The Supreme Court’s grant of Certiorari (cert for short) in the McDonald case goes like this:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

That’s a strong indication that the Supreme Court would like to see arguments for both Due Process Clause incorporation and P or I incorporation briefed in this case, and that ground is indeed covered in the Petitioners brief, NRA’s brief and other amicus briefs. By this point, it’s pretty clear that Alan Gura has set out on a path to get the Second Amendment incorporated (properly, in my opinion) under the Privileges or Immunities Clause, and NRA favors the more conservative and less risky incorporation under the Due Process Clause of the Fourteenth Amendment.

One can probably get to a motivation for favoring each method by thinking carefully about each party. It would seem Alan Gura came to the gun issue through a generally libertarian legal philosophy, much the same way many of us did. Having already won a landmark case before the Court on one libertarian issue, his place in legal history is assured. But winning a case that overturns Slaughterhouse would make him a legend in legal history. Hell, even just overturning Cruikshank, and bringing that part of the 14th Amendment back to life would be a hell of an accomplishment. Having come to the issue myself through a strongly libertarian bent I loved the Petitioner’s Brief in McDonald. The opportunity to bring the Privileges or Immunities clause back to life is right now, if it’ll ever happen. For someone who loves our Constitution and liberty, this can’t be passed up. I can’t blame Gura for taking the chance. I probably would too in his position, and if he prevails, our Republic will be better for it.

NRA, institutionally, is a lot more conservative, because their only concern is the preservation of Second Amendment rights. Ancillary libertarian concerns aren’t on their mind institutionally. While there might be (well, are, I can tell you) individuals in NRA who are sympathetic to the idea of restoring P or I and overturning Slaughterhouse, NRA as an institution is only concerned with getting a clean and firm ruling on incorporation, and is definitely wary of sacrificing incorporation on the altar of Privileges or Immunities restoration. They are probably concerned that the justices have a chance to hear more about incorporating the Second Amendment under the due process clause like we do with other constitutional rights.

So what’s the real risk? Who the hell cares how it’s incorporated, as long as it’s incorporated, right? I suspect what NRA is looking to avoid is a judicial train wreck of a ruling, where you get something like three justices voting on incorporation through Privileges or Immunities, three justices voting on incorporation through Due Process, and three voting on no incorporation because they think Heller was wrong, and the Second Amendment isn’t any real fundamental right that need be incorporated against the states. In a hypothetical ruling like that, you have no clear majority opinion, so the Marks rule is used:

The Marks Rule has raised the following schools of thought regarding the appropriate basis for determining the holding in such fractured cases: (a) the narrowest analysis essential to the result derived from a combination of all concurring opinions; (b) the concurring opinion offering the narrowest rationale; or (c) only those parts of the concurring opinions which overlap and arrive at the same result. For example, if one follows the first interpretation, then the holding in the case should be viewed as the narrowest rationale supported by all of the concurring opinions read together as though it were a single majority opinion, and where there is a conflict, the opinion based on the narrowest ground governs.

You can see how it might complicate things in moving forward on Second Amendment rights in the future, if we were to get McDonald in a plurality opinion. This would seem especially true since Marks may not quite cleanly apply. Is P or I more “narrow” than Due Process? NRA would presumably like to avoid the potential for this, and just have a clean ruling following the same legal reasoning as other Constitutional rights. They are going to, therefore, be concerned the justices aren’t able to hear enough oral argument along those lines.

Not that I believe Alan Gura is being reckless or daredevil in the way he’s decided to argue his case. The Supreme Court asked for this, really. What reason they have is not really something we can know, but they did. I can’t believe they would have granted cert the way they did if they weren’t interested exploring both options. I also still strongly believe that we will have incorporation at the end of the day. I sincerely hope we can have incorporation by Alan Gura succeeding in overturning Slaughterhouse and/or Cruikshank, but I’ll take it any way I can get it. Still, I think NRA has a valid concern in wanting time. Presumably if they are granted time, it’ll be Stephen Halbrook before the Court. I think either way this goes, our rights are in very good hands. We are fortunate to have competent and highly talented people working this issue on our behalf before the Court.

In a surprise to no one, when Philadelphia can’t find money to hire police officers and needs to close fire houses, they did find money to make sure they were represented in a brief pleading that the Court doesn’t make them honor the Bill of Rights. In fact, Philadelphia couldn’t be satisfied having just the city’s name on the brief, they also made sure that they put their police department’s name on it, too.

Incorporation would result in an unwarranted intrusion by the Federal Government into a field that falls exclusively within the States’ police powers. The States have a paramount interest in protecting their citizens and property from loss of life, injury and damage occasioned by violence and breach of peace. Even if each individual enjoys the right to bear at least some sort of arms for self-defense, the exercise of that right carries with it the risk of violence and breach of peace, which the States naturally would want to minimize for the good of the community as a whole. (emphasis added)

Is anyone surprised by a city that won’t follow state laws or pay attention to the state constitution wants a pass on the federal limits on power, too? And for you uppity people who want the right to defend yourselves, well, they just need to make sure your rights are simply minimized.

It includes some criticism he’s gotten from Heller:

As it happens, it’s not only some Democrats who view Scalia as a constitutional hypocrite: many prominent independent and Republican judges and scholars have also criticized him for ignoring the original understanding of the Constitution in the cases he cares most passionately about. As Biskupic points out, Judge Richard Posner has derided Scalia’s constitutional history in the gun case as “faux originalism,” and Judge J. Harvie Wilkinson has compared Scalia’s gun opinion to Roe v. Wade for its refusal to defer to the political branches.

Posner’s knowledge of the scholarship that has surrounded the Second Amendment recently leaves much to be desired, and one wonders whether Harvie Wilkinson has read the Congressional briefs in Heller and McDonald, where a substantial majority of the “political branches” came down in favor of an individual rights view of the Second Amendment. Unless by “political branches” Judge Wilkinson means DC City Council, the City of New York and the City of Chicago? Maybe the reason Scalia hasn’t responded to these critics because their arguments are so shallow as to not be worth responding to?

Over at PAGunRights.com, I take a look at the leaders in Pennsylvania who stepped up to sign on to at least one brief in favor of the petitioners. You can read excerpts from all of the relevant briefs over there, but here are the names of those who deserve our thanks for being proactive on the issue:

• Atty. Gen. Tom Corbett
• Sen. Joe Scarnati
• Rep. Karen Boback
• Rep. Michele Brooks
• Rep. Bryan Cutler
• Rep. Bill DeWeese
• Rep. Glen Grell
• Rep. Rob Kauffman
• Rep. Mark Keller
• Rep. John Maher
• Rep. Daryl Metcalfe
• Rep. Merle Phillips
• Rep. Kathy Rapp
• Rep. RoseMarie Swanger
• Rep. Will Tallman
• Rep. Katie True

It would have been nice if more Pennsylvania lawmakers had stepped up to be on the right side of history in this case. As I understand it, there were time constraints in some states.

Maybe we should use this against lawmakers anyway. As gun owners we could tell them that since most of them did not help out on McDonald, they could make it up to us by passing Castle Doctrine. :)

I wouldn’t read a whole lot into the anti-Heller comments by Justice Ginsburg at a luncheon of the Harvard Club in Washington D.C. — a venue where Heller, no doubt, is not all that popular a decision. I guess I agree most with Orin Kerr on this one:

I don’t think a lunch speech at a restaurant for a college alumni group on the general topic of dissents — a topic she has talked about before — is the place to plant an idea in the public consciousness. Plus, I don’t think the public consciousness includes a view on overruling the Slaughterhouse cases.

If the report is accurate, though, it raises the possibility that the remaining dissenters in Heller may stick to their Heller dissent and conclude that the the right recognized in Heller doesn’t doesn’t apply to the states because Heller is wrong. In that case, the case presumably boils down to Kennedy and Sotomayor.

There’s been speculation that perhaps some of the dissenters in Heller would be willing to rule in favor of incorporation, Heller being a done deal and a lost argument. This would seem to indicate that might be a bit optimistic. If the dissenters are still in firm believe that Heller was wrongly decided, they are not going to agree to further entrench the decision.

This makes the work Dave Hardy, David Young, and others are doing a lot more important in discrediting the historical basis of the Stevens dissent, and works like Dave Kopel’s are important for discrediting any modern reliance.  A majority of Americans believe that the Second Amendment protects and individual right, and that right includes keeping a handgun in the home for self-defense.  That much should not be controversial.  We can argue over the rest of the details as they come up.

Yesterday I talked a bit about Richard Feldman’s LA Times editorial where he tries to bring he issue forward in terms we supposedly can all agree on. As I mentioned, we can all agree that we need to go after “the negligent misuse of guns”, but that the devil is in the details. Feldman’s essential thesis is correct, but not very useful in terms of moving the debate forward. While I don’t believe Richard Feldman is quite the turncoat on this issue as some of the other folks he’s associated with over the years, I still question how dedicated he is to the proposition of the Second Amendment protecting a fundamental right. Once you begin thinking in those terms, it’s difficult to believe there’s some magical middle ground out there that we can all work towards. Let’s take a look at even a relatively uncontroversial issue — that of background checks.

Both sides in this issue grudgingly accepted them back in the early 90s. The NRA grudgingly threw out the idea of instant background checks to avoid the HCI preferred method of a waiting period. Handgun Control Inc. obviously grudgingly accepted the instant background checks because they wanted a waiting period. We ended up with a compromise, but no side was really happy with the result. But if you’re really committed to the idea of the Second Amendment as a fundamental liberty, is our current background check system constitutional?

The Brady response would be an unequivocal yes. They will draw on the language in Heller that says, “nothing in our opinion should be taken to cast doubt on longstanding [...] laws imposing conditions and qualifications on the commercial sale of arms.” Of course, the Brady will assert that this means any condition and qualification on the commercial sale of arms is constitutional, no matter how onerous. Brady would no doubt point out that it has a trivial effect on the right to bear arms, and is just a means for the government to ensure that they do not fall into the wrong hands, and that, even under strict scrutiny, is a compelling government interest. I think the Bradys will have quite a good argument on this, and I suspect the vast majority of Americans, most of whom will not understand the fine detail, will reflexively support the position, since background checks are instant, right?

Well, for most people, they are instant. But for some people, they go into a manual review process, where the Brady Act’s waiting period kicks in. There’s also the issue of the system being down, which has been known to happen, which also causes the Brady waiting period to kick in. After three days, dealers are permitted to transfer the gun with a default-proceed, but in practice most dealers won’t do this. For most of us, this is an inconvenience, but let me lay out a scenario for you.

A woman finally decides she’s had enough, and leaves her abusive boyfriend. The boyfriend, unable to let go, starts issuing threats against the the woman. He shows up at her house a few times, makes harassing calls, and generally doesn’t seem to get the message. Frustrated, she goes to the police and gets a restraining order. Knowing this doesn’t provide any real protection, she decides to go out and buy a gun, just in case the boyfriend shows up at her house again. She goes to the gun store, picks out a reasonable handgun, goes through the 4473 process, but the Instant Check system is down. The Brady waiting period kicks in. The dealer tells her to come back in a few hours, but it’s getting toward the end of the day, and the store closes in a few hours. The woman decides to come back the next day. But that night her boyfriend shows up at the house with a gun and murders her.

For all intents and purposes, that woman’s Second Amendment right never existed, because she was forced to wait on her purchase by a government regulation. Whether the government infringed on it through a waiting period or an outright ban, she was just as denied her right. Brady will no doubt argue that kind of thing often doesn’t happen, which I’m sure will be very comforting to this woman’s family. They will also no doubt argue that a gun wouldn’t have protected her anyway.

But for a real Second Amendment supporter, which Richard Feldman claims to be, one should realize this isn’t an easy answer. If there’s a middle ground somewhere in here that we can all live with, I’d certainly like him to point it out.

Good news for those looking to snag a copy of Aiming for Liberty – it’s back in full stock at Amazon.

But, as I was looking (and laughing) at the “Customers Who Bought This Item Also Bought” section. It made me think that Amazon should have an “Authors Recommend More Reading” section. That would be interesting to see what authors who write great books suggest for further reading on a topic. Then I remembered, “Wait! Hottie Dave has given us just such a guide in a previous NRA mag!”

Here are the links for those who wonder:

1. Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie by Clayton Cramer – Come on, support another blogger! Actually, there’s news on this front. I didn’t realize that the paperback just came out in August. So now you can save some money and still grab a great read.
2. Supreme Court Gun Cases by Kopel, Stephen Halbrook, and Alan Korwin – Unfortunately, this one seems to be out of print, or at least Amazon isn’t carrying it much anymore. However, a related topic book that might be of interest is Brian Doherty’s Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment.
3. Target Switzerland: Swiss Armed Neutrality In World War II by Halbrook – From Kopel: “Halbrook’s book shows not only how the Swiss militia system deterred the recurrent threat of Nazi invasion, but also how the militia system created, in the long run, a culture of civic responsibility devoted to the preservation of liberty. It was Switzerland’s militia-centric culture of republican virtue that was the key reason why liberty survived in Switzerland, even as it was extinguished almost everywhere else in continental Europe.”
4. Origins and Development of the Second Amendment: A Sourcebook by the infamous David Hardy – Since the book is out of print, you might consider “In Search of the Second Amendment” instead.
5. Gun Control and the Constitution: Sources and Explorations on the Second Amendment edited by Robert Cottrol – Prof. Cottrol is at the top of my list of absolutely fascinating people. I don’t event need to actually hold a conversation with him, just listening to him always keeps my attention regardless of the subject. Alas, the book is only available directly from Amazon in the library binding which is $150.
6. The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government & an Armed Populace edited by David Young – Again, support yet another blogger! This has been cited in important cases, including several times in Heller. Again, not widely available, but some order information does appear on this page. One of the more entertaining sights I’ve seen though is David carrying his copy of the book with important arguments marked with multiple colors of post-its.
7. Targeting Guns: Firearms and Their Control by Gary Kleck – Kleck’s research is a staple of many pro-gun arguments. Yet how many people have actually read him? Heh, thought so.
8. To Keep and Bear Arms: The Origins of an Anglo-American Right by Joyce Lee Malcolm – Another recommended read to supplement Malcolm’s book is her sequel, Guns and Violence: The English Experience.
9. Death by “Gun Control”: The Human Cost of Victim Disarmament by Aaron Zelman – I don’t know much about it, so I’ll just quote Kopel: “The book examines the 20th century genocides in Turkey, the Soviet Union, China, Guatemala, Cambodia, Uganda and Rwanda, and details how each of them was preceded and facilitated by gun control programs to disarm the victims.”
10. The Global War on Your Guns: Inside the U.N. Plan To Destroy the Bill of Rights by Wayne LaPierre – Since you can order directly from NRA and support the fight in your purchase.  Two birds, one stone, yay!

Other suggestions Kopel includes: For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms by Cramer, Gun Laws of America by Korwin, Swiss and the Nazis: How the Alpine Republic Survived in the Shadow of the Third Reich and That Every Man Be Armed by Halbrook, The Second Amendment Primer: A Citizens Guidebook to the History, Sources, and Authorities for the Constitutional Guarantee of the Right to Keep and Bear Arms by Les Adams, Michael Moore Is a Big Fat Stupid White Man by Hardy, and Armed: New Perspectives on Gun Control by Kleck and Don Kates.

And finally, if you’re literally looking for a very Gunny Christmas, R. Lee Ermery’s site actually has Gunny dolls.

I promise, this wasn’t just an excuse to do an Amazon link dump.  I really did wonder about what authors would recommend to their readers other than other books they have written.  I assume if I was curious about such things that others would be, too.  Since I remembered Kopel’s article from a couple of years ago, but didn’t have a solid link list, I figured now was a good time to create one.  Finally, I have been busy making Christmas ornaments and reading of some chick lit, so I haven’t been doing much as much blog reading.  (Oh yeah, and I may have recently been perusing related titles in my search for Christmas gifts for both a gun nut and a history buff [the gun nut's dad].)