Category Archives: Keep and Bear Arms

Larry Correia on Gun Control

I just finished reading Larry Correia’s “An opinion on gun control“, a tour de force attacking the logic and arguments of those who want to control guns. His view on those who want to control guns is damning:

In conclusion, basically it doesn’t really matter what something you pick when some politician or pundit starts screaming we’ve got to do something, because in reality, most of them already know a lot of what I listed above. The ones who are walking around with their security details of well-armed men in their well-guarded government buildings really don’t care about actually stopping mass shooters or bad guys, they care about giving themselves more power and increasing their control.

If a bad guy used a gun with a big magazine, ban magazines. If instead he used more guns, ban owning multiple guns. If he used a more powerful gun with less shots, ban powerful guns. If he used hollowpoints, ban hollowpoints. (which I didn’t get into, but once again, there’s a reason everybody who might have to shoot somebody uses them). If he ignored some Gun Free Zone, make more places Gun Free Zones. If he killed a bunch of innocents, make sure you disarm the innocents even harder for next time. Just in case, let’s ban other guns that weren’t even involved in any crimes, just because they’re too big, too small, too ugly, too cute, too long, too short, too fat, too thin, (and if you think I’m joking I can point out a law or proposed law for each of those) but most of all ban anything which makes some politician irrationally afraid, which luckily, is pretty much everything.

They will never be happy. In countries where they have already banned guns, now they are banning knives and putting cameras on every street. They talk about compromise, but it is never a compromise. It is never, wow, you offer a quick, easy, inexpensive, viable solution to ending mass shootings in schools, let’s try that. It is always, what can we take from you this time, or what will enable us to grow some federal apparatus?

I can’t add much to this, other than to relay an experience I once had walking through the Wembley neighborhood of London. I was with some relatives who lived in Birmingham and we were going to visit central London that day. We parked a few blocks from Wembley Station and walked over there. In the day, one could easily sense that the fresh stucco facade of the public housing was hiding a rough neighborhood. It turned out not to matter at that point.

After going into London and having a perfectly pleasant day, we took the tube back to Wembley station. By this time, the sun had gone down. The neighborhood we had to walk through was downright scary at night. My sense was that this was a place where the weak didn’t last long. This was soon confirmed as a band of twenty young men wielding pipes and other weapons ran unchallenged through the streets. No guns, but enough brawn and metal to make this gang very deadly.

I had never felt fear like this in my life. I’ve had to fight off two muggers in my time, both of whom fled quickly when they realized I was going to fight. (Both fights were unarmed, as legally carrying a weapon in California is effectively impossible for those without political connections. But, I digress.) In both those cases, even while being mugged, I didn’t feel or believe that the environment was dominated by lawlessness. If someone had seen the mugging going on, they would have tried to help or at least called a cop.

That night in Wembley, I felt none of that security. These young men acted like they were immune from any harm as they rampaged through the street. There were no police. There were no citizens willing to stand up for the innocent. It was terrifying. I started looking around, what elements in the environment could I use in a fight with these guys. How could I keep them away from my relatives?

In my head, though, it always ended the same. We were dead. Twenty strong, armed young men vs. two guys, a woman, and two kids, all unarmed. No police. No hope of assistance. Any confrontation would end with our deaths, simple as that.

It was a truly savage environment where might ruled without exception. This is the end result of gun control. There were only two types of people in that environment: aggressors and eventual victims. I’m writing this because we weren’t victims that night. But if we repeated that walk enough times, it would have been us.

When I hear politicians talk about gun control, this is the environment I think of. It’s the same kind of environment that our crime statistics say we have in Richmond and Oakland, just an hour’s drive from me. These two cities account for over 150 murders every year. It’s the same kind of environment we have in Detroit, which is now suffering from profound urban decay. It’s the same kind of environment that produced over 600 murders in Chicago last year.

Keep this in mind as you read Larry’s piece. It’s long, but it’s worth it… most of all if you’re a supporter of gun control.

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The Part of the Clackmas Town Center Shooting Story You Probably Missed

As usual, before many facts were known, before the victims were removed from Sandy Hook Elementary, and probably before the bodies were even cold, people on the Left and the MSM (but I repeat myself) were already calling for more gun control laws. It’s this so-called “gun culture” that is causing this death and destruction we are told.

Allowing people to get a conceal carry permit? That’s crazy talk.

Or is it?

Certain people I have been debating about this issue try to tell me that not a single time a person with a concealed handgun has stopped a mass shooting. This is an uninformed statement to be sure but why? Could it be that the MSM doesn’t always report the full story, especially if the facts don’t support a stricter gun control policy?

Let’s just take another recent shooting for example, the shooting at the Clackmas Town Center. If you read the article from The Detroit Free Press or CNN, or many other articles you would never know that an individual by the name of Nick Meli pointed his Glock .22 at the shooter shortly before the shooter took his own life. Nick Meli was not a police officer but a CCW holder. Here’s the story:

Did Meli stop the shooter from continuing his rampage? We can never know for sure. What is troubling to me is that this is one of the few reports of this individual possibly preventing more innocent people from being gunned down. Report the whole story and let the news consumers draw their own conclusions.

Yeah, there’s no media bias against guns; there’s no agenda here.

Related: Random Acts of Violence Can Be Mitigated But Not Prevented

On The Empire State Building Shooting

The news that all the wounded bystanders were injured as a result of police gun-fire will prompt many to condemn the officers who confronted Mr Jeffrey Johnson yesterday morning on a sidewalk in Manhattan. I write in their defence.

As facts dribble out, we have an increasingly complete picture of what actually occurred.  Mr Johnson had a grudge against Mr Steven Ercolino – a manager at a company he had worked at in the past –  and had decided to lie in wait with a hand-gun and to murder him in an ambush as Mr Ercolino walked to work. As Mr. Ercolino walked towards his office from purchasing some food at a coffee shop, Mr Johnson shot him in the head from behind, and fired two more rounds into his torso, killing him.

Mr Johnson then walked away and tried to escape by blending into the crowd of similarly attired people on their way to work.  However, he was trailed by a construction worker.  Mr Johnson’s escape route took him past a police detail, and the construction worker trailing him alerted the officers on that detail that Mr Johnson had just murdered someone and was armed.

Two officers hustled to catch up with Mr Johnson.  They challenged him.  He drew (but did not fire) his weapon, and the police fired 16 rounds in quick succession into him. Bystanders were struck by police bullets, the fragments of the bullets, and fragments of masonry turned into shrapnel by the police bullets.

We at The Liberty Papers are often critical of the government and its agents, but in this case, the police appear to have handled the matter properly. The officers were approached by a citizen and made aware of a serious felony and were pointed to a suspect.

The first choice the officers faced was the question of whether or not to confront Mr. Johnson.  I believe the police did the right thing in confronting him, for several reasons:

First, when people commit murders – especially when they ambush people on their way to work – it is often part of a spree killing – where a person goes to multiple locations, killing all the people they have grudges against in one go.  Had police failed to confront him, who knows what would have happened, who else he might have killed?  After all, Mr Jefferson had several clips on his person – despite clearly planning to fire only a few shots into his victim.

Secondly, had they tried to tail Mr Johnson, they ran the risk of losing him in the crowd. They would have had to abandon their posts to do so.

Thirdly, what if Mr Johnson was innocent and the construction worker was mistaken? In that case tailing him would have distracted police from finding the real killer.

In confronting Mr Johnson immediately after the allegations against him were communicated to them, the police officers were doing good police work.

When Mr Johnson pulled the gun out of his bag, and attempted to point it at the men confronting him, the dynamic then changed.  In effect, he was committing an act of assault on people who happen to be police officers.

In shooting him, the police were defending their lives as any citizen should be able to do in a free society. In shooting that many rounds the police were not guilty of excess – people are rarely killed or incapacitated instantly by a bullet from a handgun and the police appear to stop firing almost instantly after Mr Johnson dropped his gun and flopped down to the pavement. I judge what I see in the video to be a legitimate act of self-defence by the officers.

The person guilty of depraved indifference in this affair is Mr Johnson, who chose to ambush and murder someone on a crowded sidewalk and to initiate a gun-fight on another crowded side-walk. We will never know what Mr Johnson intended to accomplish when he set out to murder Mr. Ercolino, whether he had other people in his sights, or what made him snap.  Those secrets died with him as he lay hand-cuffed, face down, on the pavement. In the end, though, the responsibility for the carnage falls squarely on his shoulders.

In all likelihood, this case will be picked over for what people could have done differently.  Certainly, the accuracy of the police fire, their training, and their doctrine for confronting people like Mr Johnson should be reexamined for possible improvements.  But, at this point, it appears that the police made the correct decisions to confront and then shoot Mr Johnson, despite how awfully everything turned out.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Random Acts of Violence Can Be Mitigated But Not Prevented

In the aftermath of the senseless killing that occurred last Friday in Aurora, CO at the premier of the latest Batman movie, the question on most people’s mind is how this kind of violence can be prevented. What is the appropriate public policy that will prevent something like this horrible event from ever happening again?

Unsurprisingly, those who favor stricter gun control laws and those who favor less have come to very different conclusions. If the shooter had to jump through additional legal hoops to acquire the guns, the ammunition, the body armor, didn’t have the ability to purchase high capacity clips (because they were outlawed), etc., would this have certainly prevented this tragedy? If the movie theater didn’t have the “gun free zone” policy and one or more of the movie patrons with a CCW and a hand gun to return fire, would this have certainly prevented this tragedy?

In a word the answer is no to either approach.

Others blame the “coarsening of our culture” due in part to violent movies, video games, music, etc. The pervasiveness of pretend violence inspires real life violence, some might argue. If the entertainment industry toned down or eliminated violence in their respective art forms (whether voluntarily or by government censorship), would this have certainly prevented this tragedy?

Again, the answer is no.

There is no public policy nor security approach that will certainly prevent another random act of violence such as this. When you think about it, the question is quite absurd. The question should not be whether these acts of violence can always be prevented but whether they can be mitigated or reduced.

Is it possible that with additional gun control laws, this individual wouldn’t have been able to perpetrate this evil? While I oppose additional gun control laws, I have to concede that it is possible that if obtaining these weapons were more difficult, that this wouldn’t have happened. By regulating the type of firearms and ammunition the average person can purchase, certain criminals would be otherwise prevented from using a firearm in an unprovoked, violent fashion. But as the NRA likes to point out, criminals by definition don’t care about the law (the Aurora shooter didn’t change his mind when he walked by the “gun free zone” sign that would have notified him about the theater’s policy). Those who are determined to commit crimes with guns will acquire them through the black market. Would the killer in this instance gone through the trouble to seek out these weapons on the black market? Probably, but it’s impossible to know for sure.

While I agree with John Lott Jr.’s arguments he outlines in his book More Guns, Less Crime* and can be found making his case at various media outlets, I think it’s a bridge too far for some of my fellow travelers who support the right to bear arms to say that a single person with a gun in the theater would have prevented 12 people from being murdered and dozens more from being injured. The truth is, we cannot know for sure because there are too many variables. It’s entirely possible that a CCW holder who was properly trained might have reduced the body count and the injuries. I certainly think the odds are that more people would have survived, but given the circumstances of this event, I doubt seriously that the whole tragedy would have been averted.

So if random acts of violence cannot be prevented regardless of the security measures or public policy reforms, the question necessarily becomes: just how much risk of being a victim of a random violent act are we willing to tolerate and at what cost**?

With all the murders and scary things reported in the news, it’s not unreasonable to conclude that our culture is more violent than ever. The thing is though, it’s just not true. With the news of a mass shooting occurring on school campuses, at the grocery store in Tucson, and the latest shooting at the theater in Aurora, it might seem that there is a lunatic with a gun around every corner ready to do carnage. You may be surprised to learn then, that every school campus is due to be the place of an on campus murder…once every 12,000 years.

You may be even further surprised to learn that our world as a whole is a much less violent place than any time in the history of humanity. According to research by Harvard’s Steven Pinker, the 20th century was less violent than the previous centuries even considering all the death and destruction from the world wars, the cold war, Nazi Germany, Stalin’s Russia, and Mao’s China.

You are less likely to die a violent death today than at any other time in human history. In fact, violence has been on a steady decline for centuries now. That’s the arresting claim made by Harvard University cognitive neuroscientist Steven Pinker in his new book, The Better Angels of Our Nature: Why Violence Has Declined.

Just a couple of centuries ago, violence was pervasive. Slavery was widespread; wife and child beating an acceptable practice; heretics and witches burned at the stake; pogroms and race riots common, and warfare nearly constant. Public hangings, bear-baiting, and even cat burning were popular forms of entertainment. By examining collections of ancient skeletons and scrutinizing current day tribal societies, anthropologists have found that people were nine times more likely to be killed in tribal warfare than to die of war and genocide in even the war-torn 20th century. The murder rate in medieval Europe was 30 times higher than today.

So despite the “lax gun laws” and despite the “coarsening of our culture,” somehow we are less likely to be a victim of a violent act than at any time in history if we are to believe Steven Pinker. Of course, I realize that this probably isn’t much comfort to those who have been victims of these violent acts. We must remember, however; that if we succumb to fear that follows these horrific acts, we risk surrendering our privacy and our liberty*** for very little net benefit. We must recognize that there will always be those who want to harm his fellow man. Be alert, be vigilant, but under no circumstances allow yourself to live in fear.

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Justice for Martin, Zimmerman is More Important than Anyone’s Damned Political Agenda

Rumor, conjecture, race, debate over the appropriateness of Florida’s “Stand Your Ground” (SYG), and the debate over concealed carry among other discussions in the media and social media have taken on lives of their own in fatal shooting of Trayvon Martin. Protests have sprung up around the country demanding “justice” for the “murder”* of Martin allegedly committed by George Zimmerman who claims that he fired the fatal shot(s) in self defense. Others wonder why this story, because of the racial aspects, receive so much national media attention while cases involving white victims with black suspects do not, implying a politically correct double standard.** To inflame the debate even more, leading presidential candidates have weighed in thus (perhaps) turning this case, not only into a black vs. white issue, but also red vs. blue (or Right vs. Left if you prefer).

These all may be relevant issues for another debate, but should not determine the level of “justice” that will hopefully be determined in a court of law rather than the court of public opinion. Unfortunately, it seems that most people have taken sides without knowing all of the relevant facts of the case. Personally, I haven’t “taken sides” because there is plenty of conflicting accounts of what happened that fateful night and I don’t trust everything that is being reported***.

The real question in the case is, did George Zimmerman truly act in self defense and stand his ground as he claimed? This depends entirely on what actually happened; the factual details in this case (known and unknown) is all that really matter. Neal Boortz wrote perhaps the most balanced piece I have read so far on this case. Here he outlines three possible scenarios of the night in question.

As for the SYG law and the Trayvon Martin case, I haven’t seen anyone else bring this up, but both Trayvon and Zimmerman had the SYG law on their side under the three possible operating scenarios here:

1. George Zimmerman. If Zimmerman was attacked by Trayvon, as he claims, he had the legal authority to use deadly force to repel the attack. BUT .. and this is a big but here .. if he was pursuing Trayvon, as he said he was, the SYG law would not protect him from prosecution. Zimmerman wasn’t standing his ground. He was in pursuit. I see no reason for repeal of SYG here because the law will not stand as a defense for what Zimmerman did. By the way …. I heard Juan Williams on Fox News Channel say – not once, but several times — that George Zimmerman had been told by the police to stop his pursuit of Trayvon. First of all, there is no evidence that the 911 dispatcher Zimmerman was talking to was was a police officer. Secondly, the dispatcher didn’t say “Don’t do that.” The dispatcher said “You don’t need to be doing that.” Telling someone that they don’t need to be doing something is quite different from telling someone NOT to do something. Williams should understand this.

2. Trayvon Martin: How would the SYG law stand to protect Trayvon? If Trayvon had noticed he was being followed, and if he elected to flee his pursuer he would have every right to do so. He would also have every right to turn and to confront his pursuer. That would be “standing your ground.” So the rumored testimony of this eyewitness who said he saw Zimmerman on the ground with Trayvon pummeling him does not necessarily implicate Trayvon. If he was standing his ground he was acting within the law.

3. Now here’s where it could get complicated. What if Zimmerman had ceased his pursuit of Trayvon and retreated to his car. What if Trayvon then pursued Zimmerman to his car and attacked him. Trayvon would then lose his protection under SYG, just as Zimmerman did when he initiated a pursuit. But if Zimmerman than became the pursued instead of the pursuer, does he then have the SYG law to rely on? That’s an interesting question, and one that I think would have to be put in front of a jury.

Obviously, the number of scenarios of what might have really happened cannot be limited to these three but I think these can serve as a useful starting point for a productive debate.

Can we all agree that if Zimmerman pursued (which by nearly all counts and by the 911 call seems to be the case at least initially) and confronted Martin, Zimmerman was not acting in self defense?

Can we also agree that IF Zimmerman was following Martin and gave reason for Martin to believe Zimmerman was meaning him harm that Martin also had every right to stand his ground and use lethal force if he believed it necessary to defend himself? Would those of you who wholeheartedly believe that Zimmerman was acting in self defense when he fired the shot(s) be defending Martin had HE shot and killed Zimmerman because Martin was in fear for his life?

The third scenario is the most difficult quandary of all but could a reasonable person conclude that maybe they were both in the wrong? Could Zimmerman’s wrongful pursuit be “canceled out” by Martin’s pursuit and attack if Zimmerman was returning to his vehicle? In the event that they both contributed to Martin’s death, what would be the appropriate verdict? In my lay opinion, convicting Zimmerman of murder would be inappropriate here; a good case could be made that he could be guilty of manslaughter though.

With all the conflicting reports in the media, it seems to me that this is hardly a cut and dry case of murder or standing one’s ground. People on all sides of this issue should resist making this about every civil rights sin ever committed by members of various races. This case is about two individuals, George Zimmerman and Trayvon Martin. Not Al Sharpton, nor the New Black Panthers, nor bigoted white people racially profiling.

For those of you who are marching for “justice” for Martin, is this truly what you want or do you want revenge? Are you willing to accept the possibility that after a jury (be it grand jury or a jury deciding if Zimmerman is guilty of murder or a lesser charge) hears the evidence that they might determine that there isn’t enough evidence to prove Martin guilty of murder? Like it or not, in our system the accused is supposed to be considered innocent until proven guilty. This means that sometimes people actually do get away with murder. If the state fails to prove Zimmerman is guilty, don’t blame the jury, blame the state for failing to prove his guilt.

For those of you who are certain that Zimmerman was in the right, I pose the same above question to you. Additionally, are you willing to modify your views if the facts turn out to be opposite of your initial thoughts on the case?

It’s high time for everyone to take a deep breath and let the process work and let the chips fall where they may. Justice is more important than your damned political agenda.

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Walking Dead Economics

My wife and kids got me hooked on a series some of you may have heard of called The Walking Dead (and like the rest of the Walking Dead fans out there, I have to wait until October for the next season to begin as the characters have been left in quite a precarious situation) For those who haven’t heard of this series, basically Atlanta, GA (and as far as we know, the rest of the world) has been taken over by zombies (called “walkers” by most people who inhabit this world). While the series does have many of the elements of the zombie genre, the story and the characters in the story are quite a bit more complex.The story isn’t so much about the walkers as it is about the characters who not only have to survive this zombie apocalypse, but also manage to survive the other survivors and live with very limited resources.

One thing that becomes very clear at the beginning of this series is that many of the societal rules quickly go out the window when under constant threat of flesh eating walkers. Paper money is of no practical use (other than to start a fire perhaps). Debit cards and credit cards are even less valuable as there is no way to access your worthless money.

One other thing I noticed is that gold isn’t even a commodity that is of much use in this world.

It so happens that I have been reading Dave Ramsey’s book The Total Money Makeover as my wife and I are trying to apply his system to get our financial house in order (I highly recommend this book to anyone who wants to get out of debt). In the book I ran across the following passage in which Ramsey explains why he does not believe gold is a good investment, even as a hedge against a total economic collapse:

It is important to remember that gold is not used when economies fail. History shows that when an economy completely collapses, the first thing that appears is a black-market barter system in which people trade items for other items or services. In a primitive culture, items of utility often become the medium of exchange, and the same is temporarily true in a failed economy. A skill, a pair of blue jeans, or a tank of gas becomes very valuable, but not gold coins or nuggets. Usually a new government rises from the ashes, and new paper money or coinage is established. Gold will, at best, play a minor role, and the gold investor will be left with the sick feeling that real estate, canned soup, or knowledge would have been a better hedge against a failing economy. – The Total Money Makeover: A Proven Plan for Financial Fitness by Dave Ramsey (Thomas Nelson, 2003, 2007) p. 55.

I don’t know that I fully agree with Ramsey here though I’m by no means an expert on the history of gold or monetary policy. It seems to me that as a new civilization emerges from economic collapse, gold (and other commodities) would play a much greater role before people would accept any new fiat money. He seems to have a legitimate point, however; with regard to a collapsing or fully collapsed economy.

This is certainly the case in The Walking Dead. The resources most necessary to survive in this world are water, food, shelter, firearms, ammunition, medicine, fuel, spare parts, etc. Without these items, you aren’t going to survive for very long. Under these circumstances, who would trade a shotgun and ammunition for a bar of gold? I sure wouldn’t. I might trade a shotgun, assuming I already have enough firearms to hold the flesh eaters at bay, for some food and water. Better yet, I might offer to provide security for a few nights in exchange for food, water, and a temporary place to stay. This arrangement would continue as long as both parties agree.

In the course of the series, these are the kinds of arrangements that are worked out. Security is a major concern because, despite apparent efforts by the federal government to impose martial law, the government failed* and the law of the jungle is now in full effect. Many resources such as firearms, water, auto parts, food, fuel, etc. are scavenged from those who were either killed or simply abandoned their property (finders’ keepers).

Earlier in this season, the main characters find themselves at a dead end on the interstate as thousands of abandoned cars litter the road. Though on one hand this is very bad news, on the other, it’s an opportunity to scavenge whatever resources were left behind. At another point, a couple of the survivors make their way into an abandoned small town where they hit the jackpot in finding an abandoned pharmacy with a decent supply of prescription drugs. At the very end of this last season, the camera pans out to a prison near where the remaining surviving characters are camped out. What, if anything, can these refugees benefit from the prison? (I’m very interested to see where the story goes from here with the prison).

“What about silver bullets, do they have any value?” you ask. Silver bullets are needed to kill ware wolves, not walkers. Ware wolves? Seriously, ware wolves? Now that would be ridiculous.

*Or did it? Perhaps all the “important” people have been relocated to a secret and secure location while the citizens are left to fend for themselves.

Judge Andrew Napolitano’s Final Installment of “The Plain Truth”

As most of you are aware, Judge Andrew Napolitano’s final episode of “Freedom Watch” on Fox Business Channel aired earlier this week. The segment I will miss the most is the judge’s closing monologue he called “The Plain Truth.” Here is the final installment:

Quote of the Day: Bill of Rights 220th Anniversary Edition

December 15, 2011 marks the 220th anniversary of the Bill of Rights – at least what is left of them. Anthony Gregory’s article at The Huffington Post runs through the list of violations of these precious rights from the Adams administration’s Alien and Sedition acts all the way to the present day violations of the Bush/Obama years via the war on terror. I encourage everyone to read the whole article and reflect on what these rights mean to you on this Bill of Rights Day. If you read nothing else from the article, at least read Gregory’s conclusion:

Clearly, we fall far short from having Bill of Rights that we adhere to and that was designed for our future posterity over 220 years ago. In the end, it is public opinion that most restrains political power — not words on paper, not judges, not politicians’ promises. A population that is not decidedly and passionately against violations of their liberties will see their rights stripped away. If we want to have a Bill of Rights Day worth celebrating, we must demand that officials at all levels respect our freedoms — and not let the government get away with abusing them.

Gregory is right: preserving the Bill of Rights ultimately rests with all of us.

National Defense Authorization Act Passes Complete With Indefinite Detention Provisions

Despite some valiant efforts of a handful of senators, the National Defense Authorization Act for FY 2012 passed by an astonishing 93-7 vote. Earlier today, Sen. Dianne Feinstein offered yet another amendment to the bill that would have limited the military’s jurisdiction to detain suspects captured outside the U.S.; the amendment failed by a narrower 55-45 margin.

In the first video below, Mark Kirk (R-IL) in his floor speech explains how Sections 1031 and 1032 violate the principles of the Bill of Rights by reading the applicable amendments. Sen. Kirk makes some geography based distinctions in determining whether U.S. citizens have due process rights (which I disagree with; geography should not matter) but otherwise does a great job of explaining to his fellow senators why keeping these sections in the bill is a terrible mistake.

Though he voted against the offending sections of the bill, Sen. Kirk ultimately voted with the majority in supporting the overall legislation.

Sen. Rand Paul (R-KY) on the other hand supported neither. Paul’s floor speech is equally compelling and perhaps even more chilling than that of Kirk’s. Could you find yourself an innocent victim of this bill? Do you have any missing fingers? Do you have more than a seven day supply of food? How many firearms do you own and if so what kind of ammunition do you use? Depending on your answers to these questions, it’s possible that you could find yourself detained, perhaps at Guantanamo Bay or elsewhere, indefinitely with very little legal recourse according to Sen. Paul.

Related Posts:

The Late David Nolan’s Indefinite Detention of U.S. Citizens Fears One Step Closer to Being Realized

Are You or Someone You Know a Victim of the Drone Mentality?

Nolan Exposes McCain’s Antipathy for Civil Liberties in Arizona Senate Debate

Quote of the Day: Americans Cheer the Assassination of the Fifth Amendment Edition

Obama: Judge, Jury, and Executioner in Chief

ATF Decides the Second Amendment Doesn’t Apply to Medical Marijuana Users

The AP via CNBC reports that the Bureau of Alcohol Tobacco Firearms and Explosives (ATF) says that it is illegal for medical marijuana users to purchase firearms or ammunition.

Federal law already makes it illegal for someone to possess a gun if he or she is “an unlawful user of, or addicted to” marijuana or other controlled substances. A Sept. 21 letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives, issued in response to numerous inquiries from gun dealers, clarifies that medical marijuana patients are included in that definition.

“There are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by state law,” said the letter by Arthur Herbert, the ATF’s assistant director for enforcement programs and services.

Federal firearm licensees, or FFLs, can’t sell a gun to someone who answers “yes” when a required form asks whether the buyer is a controlled substance user. Last week’s letter also says that licensed dealers can’t sell a gun or ammunition if they have “reasonable cause to believe” the buyer is using a controlled substance.

That includes if the buyer presents a medical marijuana card as identification, or if the buyer talks about drug use, having a medical marijuana card or a recent drug conviction, ATF spokesman Drew Wade said Wednesday.

[…]

Pro-marijuana and gun groups said the policy clarification amounts to rescinding the gun rights for the thousands of people licensed to use medical marijuana laws. And it appears to contradict a 2009 Department of Justice memo that said the Obama administration would not pursue prosecution of individual medical marijuana users who obey state laws.

[…]

Wade said both the 2009 memo and last week’s letter were approved by the Justice Department and he does not believe there is a contradiction in the two messages. He also that the dealers are in a good position to help prevent firearms from getting into the wrong hands.

Funny that the ATF’s spokesman would say he was worried about firearms “getting into the wrong hands.” Does the operation that is currently under investigation code named “Fast and Furious” ring a bell? The very operation where the ATF purposely allowed some 450 or so guns to “walk” across the Mexican border eventually arming the drug cartels? If this isn’t a scandal that calls out for a special prosecutor to investigate the Obama administration, I don’t know what does!

But for the very same ATF to then issue a letter saying that medical marijuana users have to choose between their Second Amendment rights and their medical treatment is beyond the pale.

Montana Firearms Freedom Act: Tilting At Windmills

While I laud any state trying to expand the freedom of its residents while simultaneously thumbing it’s nose at Washington, I can’t see this ending well:

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

The general question here is whether modern Commerce Clause jurisprudence should be upended for this case. I believe it should, but I believe it won’t. The manufacture/sale/possession of firearms, while declared to be purely intrastate matters, would seem to “substantially affect” interstate commerce in the same way as the Court found in Wickard & Raich. On the question of whether the activity affects interstate commerce, I don’t think there can be any debate should current Commerce Clause jurisprudence hold. Under such jurisprudence, the Feds can reasonably claim that their more stringent requirements for firearms is Necessary to effectively regulate firearms in an interstate manner.

The actual brief (linked above) submitted by Goldwater & Cato draws more narrow inferences than the quoted text above, however. They recognize the current precedent of Wickard & Raich, but push a state sovereignty angle which seems much more substantial. The argument seems to be that in areas traditionally regulated at the state level, rather than the federal level, and where the state action is protecting individual liberty rather than restricting it (i.e. no 14th amendment privileges & immunities issues here), the level of scrutiny required by the Feds to override State law should be significantly higher. However, I suspect that such efforts will still either fall short, or require Supreme Court gymnastics to carve out a VERY narrow exception here (i.e. emanations & penumbra gymnastics).

It’s telling that one of the cases used as justification here is a case [Massachusetts v. Sebelius] where Massachusetts argued against the DOMA, on the grounds that Massachusetts more libertarian law upholding same-sex unions was infringed upon by DOMA. Effectively DOMA made it impossible for certain federally-funded programs which would traditionally go to “married” couples (or survivors thereof) could not be extended to same-sex couples. Because the regulation of marriage was traditionally within the purview of the States, not the Feds, and because DOMA violated the State’s liberty-protecting equal protection clause within the Massachusetts Constitution, for the Congress to intervene here was shown to be a violation of Massachusetts sovereignty.

However, I don’t think the Massachusetts case will be applicable here. While it is traditionally the purview of the States to regulate marriage, I don’t think it can be shown here that Massachusetts recognition of same-sex marriage substantially affects interstate commerce. The portion of DOMA that would have protected states from being forced to recognize same-sex marriages from other states was also not at issue. While it might be within the general police powers of the States to regulate some aspects of firearms manufacture/sale/ownership, I believe the Court would find the Commerce Clause precedent more binding than a finding of state sovereignty.

Another aspect of the state sovereignty argument appears in section I-A of the brief [p7-11]. Several points are raised:

  • That the Federal government cannot force a State legislature to legislate as directed by the Feds. In this case, I don’t believe the point applies, as the Feds are not demanding the States implement this regulation for them, but rather declaring such regulation to be a Federal matter to be decided by Congress rather than the States.
  • That the Federal government cannot commandeer State resources for the execution of federal regulation. Again, they are not forcing State police to enforce a more strict version of firearms regulation, and various drug decriminalization (and State medical marijuana initiatives) have created a situation where, while a State may [unconstitutionally] declare certain activities legal that the Federal government deems illegal, the States are within their rights to limit the use of State resources for investigation and prosecution of Federal crimes that they deem unwieldy. California can simultaneously hold the position that while medical marijuana is Federally illegal, the State does not consider it criminal, and thus the Feds themselves must enforce it if they so choose.
  • That the Federal government may not regulate/criminalize wholly intrastate activities with no economic impact. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.
  • Finally, that the Federal government may not subject State government employees to the dictates or working regulations of the Federal government — I think this one is so far removed from the case at hand to not warrant discussion.

To argue that this is a matter of state sovereignty is to argue that regulations of firearms has been a long-standing matter of the states themselves, and that for the Federal government to step in and demand more stringent regulation under Commerce Clause grounds requires such heightened scrutiny that cannot be supported here. However, Federal firearms laws have been in force since 1934, and while this is not proof that the regulation of firearm manufacture/sale/ownership should be a Federal matter, it certainly cuts some strength from the argument that this is purely a matter of state sovereignty.

It seems to me that this lawsuit is a bit of a hail mary. For it to succeed, we would need to see a sea-change in Commerce Clause jurisprudence (almost impossibly unlikely), or for the Brady Bill and/or National Firearms Act to be struck down as Unconstitutional (because both would infringe on state sovereignty). A greater likelihood, based on current conservative makeup of the court, would be a VERY narrowly worded decision involving some legal gymnastics. However, given the deference to Federal power I’ve seen from Roberts & Alito, and given that they would need such a narrow crafting to ensure that they wouldn’t open up whole hosts of other State sovereignty challenges to Federal law, I don’t see much likelihood there. Fundamentally the plaintiffs are pushing for a general large change in Federal/State interaction, one which I doubt the Supreme Court is ready to uphold.

Of course, that’s all assuming it ever makes it to the Supreme Court, itself an unlikely prospect.

While I have great sympathy for the plaintiffs here, I can’t say I’d be laying strong odds on their success.
» Read more

Controversial Organization Admonishes Soldiers and Peace Officers to Defend the Constitution

Every soldier and every police officer swears an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” but as a practical matter, what does this mean? What happens if the CO issues an order that violates the Constitution; is soldier or peace officer still required to carry the order out? What if the order in question comes from the President of the United States?

Stewart Rhodes, the founder of an organization established in 2009 called Oath Keepers, says that not only do soldiers and peace officers have a right to refuse to carry out an order that violates the U.S. Constitution but a sworn duty to disobey the order. Rhodes, graduate of Yale Law School, veteran, former firearms instructor, and former staffer for Congressman Ron Paul’s D.C. office, started Oath Keepers in response to what he perceived as an erosion of civil liberties that has escalated since 9/11.

Oath Keepers’ critics (particularly on the Left) believe the organization to be a Right wing “extremist” organization full of Birthers, Truthers, militia members, hate groups, and various other conspiracy theorists. In this article in Reason, Rhodes clears the air. Also, found in the organization’s bylaws:

Section 8.02
(a) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates the overthrow of the government of the United States or the violation of the Constitution thereof, shall be entitled to be a member or associate member.

(b) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates discrimination, violence, or hatred toward any person based upon their race, nationality, creed, or color, shall be entitled to be a member or associate member.

So what specifically makes Oath Keepers so controversial? My guess would be their list of 10 “Orders We Will Not Obey”:

1. We will NOT obey orders to disarm the American people.

2. We will NOT obey orders to conduct warrantless searches of the American people

3. We will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.

4. We will NOT obey orders to impose martial law or a “state of emergency” on a state.

5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty.

6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.

7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.

8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control.”

9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies.

10.We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.

Imagine how much freer our country would become if everyone in law enforcement and in the military adopted this creed and took their oaths seriously?

Duh, Winning!

The ATF has been arming the drug cartels in Mexico? What could possibly go wrong?

CBS News reports:

The Bureau of Alcohol, Tobacco, Firearms and Explosives allegedly let gun runners walk off with weapons – thousands of them – to see if they’d end up in the hands of the cartels. The Justice Department and ATF have denied it ever happened.

Special Agent John Dodson works in ATF’s Phoenix office and has blown the whistle on the controversial strategy, known as letting guns “walk.”

Dodson believes there are other ATF operations going on that have done the same thing.

[…]

Sources tell CBS News licensed gun dealers often wanted no part of selling to suspicious characters who could be supplying the cartels.

But, sources say, ATF enlisted the gun dealers as paid Confidential Informants and encouraged them to sell even more.

“ATF has asked me to assist in an official investigation,” reads one agreement.

Gun salesmen closed the deals, and ATF watched and listened with recording devices.

“ATF Special Agents conducted surveillance…and identified the dates and times that the conspirators… crossed the international border,” says one court document.

Dodson argues that something that should never be done. “A lot people are going to get hurt with those firearms between the time we let them go and the time they’re recovered again in a crime.”

Sources tell CBS News these ATF operations involved about 450 weapons. Despite the risk, two years later the same strategy was expanded to include thousands of guns.

Hopefully this special agent Dodson won’t receive the “Manning Treatment” for being brave enough to expose this to the media and the American public.

In response to this news, Libertarian Party Chairman Mark Hinkle in a statement said:

“The War on Drugs has caused far more death and destruction than it has prevented. The War on Drugs is a failure in almost every measurable way. The War on Drugs should end.

“It’s becoming more and more unclear whether the U.S. government even wants the violence to decrease. More drug violence means more jobs for federal drug agents. More drug arrests mean more jobs for prison construction and management contractors. There are a lot of people whose income depends on a big, thriving, unsuccessful War on Drugs.

“If the War on Drugs were halted, there would no longer be any such thing as ‘drug trafficking.’ Violence in Mexico would decrease very dramatically, as drug lords would quickly go out of business.

I’m not one who normally subscribes to conspiracy theories but Hinkle makes an interesting point. There are lots of people who benefit from the war on (some) drugs. More convicted drug dealers and drug users means more jobs for those who build prisons and maintain prisons. The prison industrial complex as a whole would suffer mightily if the war on (some) drugs was ever ended.

I also think the antigun crusaders both inside and outside the Obama Administration could also benefit. “These guns are so available to these drug cartels because they are so readily available to just anyone who walks into a gun store” they can say.

Hopefully some heads will roll on the result of this irresponsible scheme. The ATF and the Obama Administration no doubt have blood on their hands.

Selling AK-47s to the drug cartels to scare Americans into accepting even stricter gun control laws while strengthening the prison industrial complex? Duh, winning!

Back to First Principles: An Excellent Primer on the Rights of Life, Liberty, and Property

In beginning the 112th Congress, House members took turns reading the Constitution aloud to a nearly empty chamber. While I in some ways appreciate members at least uttering the words, I believe that the members would have been better served not by merely reciting the words but by studying the philosophical roots of the Constitution, particularly the Bill of Rights. This two part video does an excellent job explaining the meaning of the Bill of Rights as the document related to the times it was written as well as how it continues to aid us in the difficult times we currently live.

Part 1 deals with the philosophical foundations that came out of the Age of Enlightenment.

Part 2 explains the reasoning behind each of the ten amendments we call the Bill of Rights

As the narrator went through each of the amendments, I couldn’t help but think of the many instances where these very rights have been violated and continue to be violated by federal, state, and local governments throughout the country. For those of you who want to really know what we are about and the larger liberty/small government movement is all about, these are the very principles we are trying to restore. These are our guiding principles.

If ever you are perplexed by a position that we write about be it our opposition to the war on (some) drugs, opposition to conscription, support for sound money, support for the right to bear arms, opposition to ObamaCare, opposition to the so-called Patriot Act, etc. , you might find it helpful to refer back to these first principles.

I would like to encourage others to share these videos because I would like to see these videos go viral to remind our friends on the Left, the Right, and the middle about why these rights are so important and worth fighting for.

Related: The Philosophy of Life, Liberty, and Property Explained

UPDATE: Gov. Christie Commutes Brian Aitken’s Sentence to Time Served

Just yesterday, Gov. Christie commuted Brian Aitken’s sentence to time served and earlier today he was released from state custody.

Christie commuted Aitken’s sentence Monday, shortening it to time served. It was the first time he has commuted a sentence since taking office almost a year ago.

“The governor has reviewed all the facts of Brian Aitken’s case and has commuted his sentence to time served,” Christie spokesman Michael Drewniak said Monday. “Considering both Aitken’s offense and punishment, the governor believes this is the most compassionate and just solution.”

Aitken was being held at the Mid-State Correctional Annex, which is located on Fort Dix. He declined comment through a spokesman for the Department of Corrections.

It’s very good to see that Gov. Christie did the right thing in this case. Well done sir.

Hopefully, New Jersey legislators will now reconsider these burdensome anti-gun laws to prevent something like this from ever happening again.

Previous Post:
ACTION ALERT: Call/Write NJ Gov. Christie and Tell him to Pardon Brian Aitken

***UPDATE II***Complete written statement from Brian Aitken’s Facebook page (reposted @ TigerHawk) since his release:

Hi Everyone,

I wanted to briefly thank a few people individually for all of their hard work–and I couldn’t think of a better place to do so than here (my very own Facebook Page, crazy)!

Governor Christie, thank you. Seriously. I understand the risk you assume while making any decision that affects the People of New Jersey and that this was no trivial decision for you. In the days and years that will come to pass I am positive you will find yourself proud of your decision… and if you heard that quote about me running against you for President; I was just kidding. :)

Dennis Malloy, thank you. You’ve helped deliver an amazing gift this Christmas for a very loving and deserving family. I wouldn’t be typing these words right now if it wasn’t for you.

Richard Gilbert & Evan Nappen, thank you. You’ve been amazing counsel through this all and I’m proud to have you represent me in this case.

To the 15,000+ Facebook supporters, thank you. To each and every person who wrote the Governor, thank you. To each and every person who wrote to me and sent me hope… thank you.

To the Soldiers, Airmen, and Marines who wrote me from overseas – thank you for your kind words and your dedication to our country. The work you do amasses a debt that can never be repaid and I am humbled that you supported me from bases and War Zones around the globe. Thank you.

Lastly, thank you to my family, friends and beautiful fiancee. I’m lucky to have you all in my life.

There is a great deal of work yet to be done but, in the meantime, I hope everyone has a very Merry Christmas.

My very best,

Brian D. Aitken

The Philadelphia Daily News reports that Aitken and his legal team are going to continue to clear his name via the courts:

Christie’s commutation does not clear Aitken’s conviction or criminal record, and he has yet to hear from the New Jersey appellate court. He is not content with freedom, though, and plans a return to court.

“This is not over,” he said.

His case, he said, hinges on an exemption in New Jersey’s gun laws that allows gun owners to transport their weapons if moving to another residence. Aitken had moved back to New Jersey from Colorado, where he purchased the guns legally in 2007, and claims he was in the process of moving from his family’s home in Mount Laurel to Hoboken at the time of the arrest.

ACTION ALERT: Call/Write NJ Gov. Christie and Tell him to Pardon Brian Aitken

For those of you who are unfamiliar with this case involving a lawful gun owner being caught in the snare of New Jersey’s strict gun control laws, here’s a summary of what happened:

On January 2, 2009 Brian was arrested for illegal possession of firearms while moving from one residence from another. All of the firearms were legally owned—Brian passed three different FBI background checks to purchase and had even cleared an FBI screening for employment as a data researcher handling confidential information for a banking security software firm. His integrity, character, and right to own was not in question…so what was?

New Jersey statutes make it illegal for anyone without a concealed carry permit to possess a firearm even if it’s otherwise lawfully owned. The only way to lawfully possess firearms in New Jersey is through exemptions to the law like driving to and from a shooting range or moving residences. However, as they are exemptions from the law they must be raised during trial therefore removing the presumption of innocence for the charge of possession.

[…]

Several witnesses, including the arresting officer, testified that not only did Brian have multiple residences but that his car was packed with his personal belongings–so much so that it took the police 2 hours and 39 minutes before they found Brian’s guns locked and unloaded in the trunk of his car, exactly as NJ law dictates. Brian knew this because only days earlier he had found out through the NJ state police how to legally transport his firearms in NJ. The officers, believing Brian had done nothing wrong, then offered to leave the firearms at his parents’ house, but when they wouldn’t fit in his father’s safe the supervising officer decided to arrest him instead.

[…]

During the trial it became clear to everyone in the courtroom that Brian fit the exemptions of the law for moving between residences. However, the judge withheld the law from the jury, thereby ensuring a guilty verdict. Regardless, the jury returned from deliberation three times specifically requesting to be read the exemptions of the law. One can only assume that this was so they could find Brian not guilty. The judge and the prosecutor made it clear that they had no intention of allowing Brian to walk out an innocent man. They were more interested in a guilty verdict than truth and justice.

It seems pretty clear to me that the judge (who was not reappointed by Gov. Christie) and prosecutor want to make an example of Mr. Aitken. By all accounts, Aitken went out of his way to obey New Jersey’s absurd anti-gun laws but somehow finds himself serving 7 years in state prison.

There is a very good possibility that Gov. Christie (R) will pardon Aitken as Christie seems to be sympathetic in this case. He’s already getting quite a flood of messages into his office to do the right thing but I believe we should join in and encourage even more to do the same.

Call Gov. Christie at 609-292-6000 and politely leave a message to set Brian Aitken free so that he can spend his Christmas with his family instead of behind bars.

You can also join “Free Brian Aitken” on Facebook. Go here for additional details.

***UPDATE***

I’m very pleased to announce that this action alert can be cancelled: Gov. Christie has commuted Aitken’s sentence to time served. Go here to read my update on the case.

Thanks to all who participated in this action alert.

Every argument for the right to keep and bear arms, in just 8 minutes

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Jon Stewart Has Earned My Respect

I used to think that Jon Stewart was another garden variety left winger but lately, I’ve found him to be perhaps the most reasonable political commentator anywhere. Whether the issue is the controversial South Park episode featuring the prophet Mohammed, Obama’s about face on civil liberties now that he is president, or this most recent ground zero mosque controversy, Jon Stewart, a comedian is the voice of reason as many other pundits take one extreme view or the other.

In this Daily Show segment below entitled “Extremist Makeover – Homeland Edition” Stewart does something that I’ve seen very few pundits do publicly: admit he was wrong. In observing the overreactions of this mosque controversy in which many on the right want to deny freedom of speech, freedom of religion, and property rights to a religious minority out of fear, Stewart realizes that he too overreacted in the wake of the Columbine Massacre when he and others on the left condemned the NRA for going ahead with their scheduled convention in Denver (near ground zero for this tragedy). From there, Stewart plays excerpts from then NRA President Charlton Heston and admits that Heston was right and he was wrong.

Stewart:

If you replace ‘NRA’ with ‘Muslim community’ and ‘Second Amendment’ with ‘First Amendment’ he [Heston] is still right.

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Extremist Makeover – Homeland Edition
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

Jon Stewart has earned my respect for his intellectual honesty even as others (*cough* Wayne Allyn Root *cough*) have lost it.

Yes, the Second Amendment really means what it says… and that means you too Chicago

This past Monday, Samuel Alito, writing for the majority (with separate concurring opinions from Clarence Thomas and Antonin Scalia) in the case McDonald vs. City of Chicago and Village of Morton Grove; handed down what in 30 years will I believe, be held as one of (or perhaps half of a pair of, or the second in a series of) the most significant rulings in the courts history, not just for the right to keep and bear arms, but for the rights of all people in this nation.

I had meant to get this post out yesterday, but I had to take the time to read the entire opinion… all 214 pages of it… and think about it for a bit.

This judgment is notable, both for what it does, and for what it does not do; and I want to go into that in some depth… and I want to go into some of the background and issues surrounding the decision that aren’t necessarily about the right to keep and bear arms

However, that is going to get long…. and if you aren’t interested in constitutional law and the nature and exercise of the rights and powers of the states, it’s going to be boring. There’s only so much you can do to make enumeration and separation of powers issues over more than two hundred years, all that interesting.


Note: Also, for those of you who DO closely follow con law, this is going to be a gross simplification in some ways. I don’t have time to write a book here, and a book is what it would take to cover this comprehensively (actually several… there are a few out there already, and Heller and its progeny are sure to generate more).

At any rate, I’m going to break it out into another posts, and I’ll update this post with a link when I finish the other one.

… I should warn you, I’m already 5,000 words in, and I’m probably less than half done…

McDonald vs. Chicago is the first major gun rights case brought before the supreme court under the clarified Heller doctrine, to wit:

The right to keep and bear arms for all lawful purposes is an individual right, possessed by all citizens and lawful residents of this country (provided this right has not been statutorily stripped from them, with due process of law); and the core of that right, is the fundamental right to defense of self, and others.

Actually, McDonald is a bit more than just “first”… In fact, the case was prepared in advance, and filed immediately on the handing down of the Heller ruling; by the lead counsel on the Heller case, Alan Gura.

The issue at hand in Heller was to affirm and clarify the basic right; something which those on the left in general, and in the gun control lobby in particular, had been trying to deny for something like the last 40 years

Note: The modern gun control movement as currently constituted really began in the late 60s; roughly coinciding with accelerating decay of civil order and rise in civil unrest, the rise of the drug and counterculture, and dramatically rising crime rates.

More than anything else, it was the assassination of Robert Kennedy, and Martin Luther King that kick-started the gun control movement as it exists today.

The gun control movement in the U.S. as a whole has its roots in racial discrimination against immigrants in the pre-civil war northern cites, and blacks in the post civil war south.

Up until the late 1950s, the left as a whole actually advocated gun ownership, as a bulwark against the state… a position generally ascribed these days to the “far right”; but as the left post 1932 increasingly BECAME the state, their position on civilian non-police gun ownership changed.

The issue at hand in McDonald is substantially identical to Heller, with a crucial difference we’ll discuss in a moment; that of incorporation of the second amendment against state and local governments, as other rights enumerated in the bill of rights have been.

In Heller, the substance and nature of the right were affirmed. However, though the assertion of the right is very clear; it’s application is potentially limited.

Because the Heller case pertained to a federal enclave (Washington D.C. is not a part of any state. It is a federal enclave. Precedent in DC cases applies federally, but not necessarily to issues in the several states), the ruling only explicitly applied to the federal government.

In principle the right could be asserted against the states, or it could not be… depending on judicial interpretation. Either way a judge decided, it would almost be certain to be appealed… as indeed it was (in at least four cases so far, all of which were delayed pending the McDonald ruling).

Also, Heller left various questions open to interpretation, such as the standard of review for laws pertaining to the right to keep and bear arms, and whether interest balancing tests could be made.. or for that matter just what types of laws would be acceptable short of outright bans on firearms in the home (which were explicitly forbidden).

In Mondays decision on McDonald, it was affirmed (quite strongly), that the rights protected by the second amendment are equal in stature to the rights protected by the first amendment, and all the others.

In both the majority opinion, and the concurrences, the court made it explicit that the protections afforded by the second amendment applied against the state. Further, they made it clear that a strict standard of review was to be applied to any law regarding the right to keep and bear arms (though they do not by any means disallow all regulation. In both Heller and McDonald, it is acknowledged that some regulation of any right can be acceptable, but must be strictly scrutinized).

There is still one set of questions to be resolved, what exact restrictions against keeping and bearing arms will be acceptable under this standard of review. Just as there are many limitations against speech permitted by current jurisprudence, including many which probably should not be allowed under the constitution (such as most of what is called “campaign finance reform”); there will likely still be substantial restrictions allowed by the court. In any case, it will be years… likely decades… before the whole issue is settled law, and in the mean time, there will be a lot of contradiction and chaos.

The fight is certainly not over… in fact it’s really just getting started.

This is where we get into the theoretical discussion about the constitution, so I think I’m going to end here and pick it up in the next, much longer, post.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Elena Kagan And The Second Amendment

Today’s controversy burning up Memeorandum is a revelation concerning Supreme Court nominee Elena Kagan’s previously expressed views on the Second Amendment:

May 13 (Bloomberg) — Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal.

The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”

The law in question, of course, were the same firearms law that were at issue some 21 years later in District of Columbia v. Heller, which the Supreme Court ultimately struck down in what was actually the first explicit ruling on its part that the Second Amendment protected an individual right to keep and bear arms.

But, in 1987, a similar challenge to the same law suffered a much different fate:

The lower court ruling in the 1987 case, issued by the District of Columbia’s highest court, said the Second Amendment protects only the rights of states to raise militias, and not individual gun rights. The ruling upheld Lee Sandidge’s conviction for carrying a pistol without a license, possession of an unregistered firearm and unlawful possession of ammunition.

The high court refused to hear the case, known as Sandidge v. United States. The memo to Marshall, found in his papers at the Library of Congress, includes a handwritten “D,” indicating that he was among those who voted to deny review.

White House spokesman Ben LaBolt said the position taken in the memo to Marshall reflected the prevailing view of the law at the time.

That is, of course, absolutely correct. Prior to Heller, the Supreme Court’s Second Amendment, though slim, was decidedly against the idea that the amendment protected an individual surprise. Thus, it’s not all that surprising to me as an attorney that a 27 year-old law clerk working for one of the most liberal Justices on the Court at the time would produce a memo arguing that the appeal should be denied.

The question, then, isn’t what Kagan thought twenty years ago when the law was different, but what she thinks now, and she gave at least some clue to that during her confirmation hearings to become Solicitor General:

As a nominee to be solicitor general last year, Kagan told lawmakers that she accepted that 5-4 decision in District of Columbia v. Heller as a precedent of the court.

“There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation,” she said.

Kagan should clearly be questioned on her views about the Second Amendment and the Heller decision, but rather than focusing on something she wrote 20 years ago, I would hope that the Senators focus on what she believes today.

H/T: Vodkapundit

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