Archive for the 'Second Amendment' Category

In Second Amendment Quick Hits #3, there is a lawsuit in North Carolina that bears on the carrying of weapons in situations of so-called riots or “other emergencies.”  The Brady campaign has intoned against the Second Amendment (again) as you might guess.

The Brady Center to Prevent Gun Violence today filed a brief in federal court in North Carolina urging the court to dismiss a lawsuit seeking a right to take up arms in streets and other public spaces during riots or other emergencies.  The lawsuit challenges a longstanding North Carolina law that allows gun carrying on a person’s property but temporarily bars public gun carrying in the vicinity of a riot and during states of emergency.

“The Second Amendment does not grant a right of vigilantes to take up arms on our streets during a riot or state of emergency,” said Paul Helmke, President of the Brady Center to Prevent Gun Violence.  “Police and emergency responders seeking to quell a riot or deliver aid during an emergency should not be forced to contend with legally-authorized armed individuals and groups roaming alleys and public streets.”

The Brady Center’s brief argues that there is no right of armed vigilantes to take to the streets during riots or congregate in the vicinity of emergency responders trying to secure a downtown during riots, looting, or terrorist attacks.  The prospect of police and emergency responders being powerless to stop bands of armed citizens from taking to the streets during emergencies, looting, or rioting poses a serious threat to the government’s ability to maintain public order and deliver emergency services.  If the lawsuit were successful, law enforcement would be unable to detect whether roaming armed individuals or gangs were would-be looters, terrorists, or vigilantes, thus jeopardizing their safety and their ability to respond to states of emergency.

David Codrea observes that “on this much, Helmke is correct: The Second Amendment grants no rights.  It recognizes them, and declares they shall not be infringed.”  Codrea goes on to analyze the Los Angeles riots in the context of this lawsuit, very worthwhile reading.  But note the way the Brady Campaign has cast the issue.  Rather than defending yourself, family and property, if you own and carry a weapon in a time of “emergency,” you are a vigilante, a part of “armed bands of citizens” roaming the streets, making it impossible for the police to ascertain the difference between you and criminals.  Presuppositions are everything, no?

Next, note the Firearms Freedom Act introduced in South Carolina.

Prefiled in the South Carolina by State Senators Lee Bright and Danny Verdin is Senate Bill 249 (S0249), the Firearms Freedom Act (FFA). The bill states that:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in South Carolina and that remains within the borders of South Carolina is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.

Since 2009, 8 states have passed similar legislation as law – Montana, Tennessee, Utah, Wyoming, South Dakota, Idaho, Alaska and Arizona. And, here at the Tenth Amendment Center we expect to see at least a dozen other states consider Firearms Freedom Acts in 2011.

The United States Constitution gives Congress the authority to regulate Interstate Commerce between the states, and 18 USC 922 makes it unlawful for any person not licensed as a manufacturer or dealer in firearms to engage in the business of manufacturing or dealing in firearms. Collectively, the Interstate Commerce Clause and 18 USC 922 are used by the federal goverenment as a means to regulate, control and often-times ban, firearms.

The South Carolina Firearms Freedom Act addresses this by exempting firearms, firearm accessories, and ammunition manufactured and retained in the state from all federal firearm control laws including registration, as firearms that meet these criteria cannot be regulated by the federal government because they have not traveled in interstate commerce.

“Basically, we’re saying if the gun is made here, South Carolina is going to say what kind of regulations apply,” Bright said. “We feel that South Carolinians should be able to determine how to protect themselves — not the federal government — which is why most people have firearms.”

It’s difficult to imagine a scenario in which this doesn’t eventually make its way to the SCOTUS, although it’s also difficult to imagine what the government’s case would be since there is no interstate commerce occurring under the stipulations of this law.  But my bet is that the current administration orders the U.S. Solicitor General to take up the case (or better said, make a case where there isn’t one).

Prior:

The Feds Muscle In On Long Gun Sales

Breyer: Founding Fathers Would Have Allowed Restrictions on Guns

From Yahoo (AP):

The federal agency that monitors gun sales  wants weapons dealers near the Mexican border to start reporting multiple sales of high-powered rifles, according to a notice published in the Federal Register.

The Bureau of Alcohol, Tobacco, Firearms and Explosives has asked the White House budget office to approve an emergency request requiring border-area gun dealers to report the sales of two or more rifles to the same customer within a five-day period.

The emergency request, published Friday in the Federal Register, is likely to face stiff opposition from gun rights advocates, including the National Rifle Association. ATF wants the Office of Budget Management to approve the request by Jan. 5.

NRA officials did not immediately return a telephone message for comment Monday. Last week the group’s chief lobbyist, Chris Cox, told the Washington Post that the “NRA supports legitimate efforts to stop criminal activity, but we will not stand idle while our Second Amendment is sacrificed for politics.” The Post first reported the proposal.

High-powered rifles have become the weapon of choice for Mexico’s warring drug cartel. More than 30,000 people have been killed in Mexico’s drug war since President Felipe Calderon launched an offensive against the powerful drug gangs shortly after taking office in late 2006.

Officials on both sides of the border have said weapons bought legally in the United States are routinely smuggled into the Mexico. The proposed reporting requirement would apply to sales of two or more semi-automatic guns more powerful than .22-caliber rifles that use a detachable magazine within a five-day period.

[ … ]

Currently there are no reporting requirements for rifles.

If approved by the White House, the new reporting requirement would affect nearly 8,500 border-area gun dealers in Arizona, California, New Mexico and Texas and be in place for 180 days.

Analysis & Commentary

Ah.  It all has the ring of reasonableness and exigent need, doesn’t it?  Who in their right mind could possibly object to the sale of multiple long guns with detachable magazines being monitored and approved by the federal government if those same weapons could end up harming U.S. citizens?  Or so the thinking goes.

Besides chipping away at Second Amendment rights, the trouble with this plan is that it doesn’t do anything to fix the problem – it only pretends to be a solution.  It merely throws a band aid on symptoms of the problem.  The problem is a porous border, with lack of robust rules for the use of force for border guards, and even when the National Guard is deployed to the border, they have been deployed to do paperwork, report illegal border crossings, and do fence repair.  In most cases, their orders don’t even include having a weapon with a chambered round.

As I have said before, piracy and illegal immigration exists because we want it to.  Build the fence, imprison the CEOs of corporations and even small companies who hire illegals, and secure the border with robust rules for the use of force, and the problem is solved.  There is no need to “deport” anyone.  They will leave of their own volition, at least if we cease and desist funding their families with government sponsored programs.

Illegal immigration isn’t a hard problem to solve.  We just don’t want to badly enough.  Rather, our government would just as soon go after long guns under the guise of stopping trouble on the Southern border.

Don’t believe the ruse.

And in Second Amendment quick hits (something that will become a regular feature of The Captain’s Journal):

Someone in Kansas is telling us that police assistance is available in a matter of minutes, when in fact, most violent crimes are over in seconds.

And Fred Grimm with the Miami Herald is lamenting rapid fire.

Like accountants working a cold night in hell, crime scene technicians recorded the number of gunshot holes in Ciara Lee’s Liberty City home, scrawling a black numeral where each bullet had penetrated the concrete block wall or blasted through a window.

On the front stoop, clustered around a door and window, gunshots 64, 65, 66 . . . up through 73 had been dutifully marked.

The gunmen missed a toddler’s purple tricycle stashed by the porch.

But not the child inside.

Down the west side of the house, the techs enumerated bullets 78, 79, 80, 81, 82, 83, 84, 85, 86, 87.

It’s the gruesome new numerology of Liberty City and other neighborhoods where teenage gangbangers wield the same weaponry carried by soldiers and insurgents in war-afflicted places like Iraq and Afghanistan.

More than 100 bullets were fired at the block house about 1 a.m. Tuesday from military assault weapons.

Police think there were two shooters. They fired so many shots so quickly a cop outside the crime scene Wednesday wondered whether the weapons were semi-automatic, the AK-47-style weapon available at any gun shop, or guns converted to automatic — converter kits are available on the streets — transforming these rifles into virtual machine guns.

Either way the firepower was so formidable it didn’t matter that Ciara Lee, 24, a state corrections officer, and her 2-year-old son Devin, were “safe” inside their home, asleep in bed. Both were killed. Tony Lee, 49, Ciara Lee’s cousin, was hit in the leg.

Once again, innocents in communities like Liberty City suffered the murderous reality created by Second Amendment absolutists — those who talk of the right to own military assault weapons as if these guns should be regarded no differently than handguns or hunting rifles.

Fred wouldn’t like my weapon.  You know, we wouldn’t want American citizens to own the same weapons owned by insurgents in, oh, let’s say, Afghanistan.

Those long guns can do some damage.  Shouldn’t we regulate pistols, too, given the capability to deliver rapid fire?  How about the Kel-Tec PMR30?

Goodness.  The philosophical and even tactical problems are so immense for the statists.  It’s so hard to stay consistent, is it not?

From FoxNews:

If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.

Appearing on “Fox News Sunday,” Breyer said history stands with the dissenters in the court’s decision to overturn a Washington, D.C., handgun ban in the 2008 case “D.C. v. Heller.”

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,” said Breyer, adding that historians characterize Madison’s priority as, “I’ve got to get this document ratified.”

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.

In July 2008, the concurring opinion in “D.C. v. Heller” written by Justice Antonin Scalia and shared by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. found that the district’s ban on handgun possession at 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.”

The ruling raised concerns by dissenters like Breyer that gun laws nationwide would be thrown out. That has not happened yet.

Breyer, who just published “Making Our Democracy Work,” a book about the role of the court in American life, outlined his judicial philosophy as one in which the court must take a pragmatic approach in which it “should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”

Since the Founding Fathers could not foresee the impact of modern day communications and technology, the only option is to take the values of the Founding Fathers and apply them to today’s challenges.

“The difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing,” Breyer said. “It’s not a matter of policy. It is a matter of what those framers intended.”

He suggested that those values and intentions mean that the Second Amendment allows for restrictions on the individual, including an all-out ban on handguns in the nation’s capital.

Let’s assume for the sake of argument that his history is correct.  Breyer’s rationale is this.  Because ratification of the constitution was a priority, Madison made it abundantly clear that the federal government had no business in the affairs of states regarding the bearing of arms.  The amendment was ratified, solidifying for all time this watershed statement of limits of control by the federal government.

Next step.  Because Madison made this deal, contrary to his intent (which Breyer implies but presupposes rather than proves), one may infer from this very amendment the right for states to regulate firearms, up to banning them outright.  But notice the sleight of hand.  Breyer has turned something dispositive and affirming concerning our rights (see the language in the Second Amendment) and flipped it on its head to mean that it’s merely the federal government that doesn’t have the right to remove our firearms.  Someone else does.

He further muddles his logic by referring to deals made in order to get necessary votes in place.  As one commenter notes, “Others have picked up on this point, but whether James Madison liked the idea or not, the states voted to ratify the Constitution because the Bill of Rights contained the Second Amendment. So the best that could be said, accurately, is that “a” founding father might have favored restricting weapons, but he obviously did not reflect the majority view.”

And one more commenter observes concerning Breyer’s logic, “So then by this logic, a single payer health system could be adopted through the Supreme Court since the “intent” of the law was to have a single payer system, but since the Libs just wanted to get it passed, they stripped out that part. Laughable and nothing but revisionist history and judicial activism.”

Rhetorical sleight of hand, and logical blunders.  And this is the level of scholarship on the Supreme Court of the U.S.?

It’s membership renewal time, and I cannot forget that Wayne LaPierre endorsed Harry Reid, saying “He is a true champion of the Second Amendment back in Washington, DC.”  There was ultimately no NRA endorsement, with Chris Cox saying “Reid’s push to confirm Supreme Court Justices Sonia Sotomayor and Elena Kagan” prevented the NRA from endorsing Reid.

Actually, it was the strong reaction by NRA membership that prevented it from happening.  Reid secured a significant amount of money for a shooting range in Clark County, Nevada (61 million dollars of tax money, to be precise), and there has been significant politicking on this issue within the NRA, with a gag order being issued to members of the NRA board on the Kagan nomination.

And here I thought that the NRA was above buy offs, influence peddling, and general corruption.  Even now it isn’t clear to me why Wayne LaPierre and Chris Cox cannot simply be kicked to the curb and new leadership installed?  Thuggish behavior should not be tolerated, and the NRA deserves better leadership that these two men.  It is enough that they should beclown themselves and instigate internecine warfare on the board; we shouldn’t allow it to happen to the NRA too.

Yet I am just a member, and I know that there are other organizations that promise to be above the influence peddling.  So do I dump the NRA or give them one more chance?

Note: For Harry Reid’s record on the 2nd Amendment, see here.