Daily Archives: February 7, 2017

Trumps nomination of federal judge Neil Gorsuch to the US Supreme Court has been greeted with much glee by conservatives and a well-anticipated gnashing of teeth by the progressive Left. Naturally, those of us in the gun community have our own particularized questions about what a Justice Gorsuch might mean for the Second Amendment. Lets take a look, shall we?

A look at Judge Gorsuchs generalized judicial philosophy is certainly encouraging. Given that it was Scalia who led the proSecond Amendment decisions in District of Columbia v. Heller and MacDonald v. Chicago, and that Gorsuch has been described not inaccurately as Scalia 2.0, we may reasonably hope that Gorsuch will bring a Scalia-like originalist and textualist approach to Second Amendment jurisprudence.

Judge Gorsuchs actual record on the Second Amendment is rather sparse, however. He has not been involved in first-principle cases such as Heller and MacDonald, so his decisions have nothing as explicitly affirming. It is worth asking, then, whether any of his decisions could suggest he would approach the Second Amendment in a negative manner.

Having spent decades fighting antiSecond Amendment legislation and jurisprudence, the gun community is sensitive to any suggestion, however slight, that a Supreme Court nominee might be predisposed against their views. The result is sometimes a tendency to object prematurely and cry wolf.

Some in the gun community seem to be leaning in this direction because of a case in Judge Gorsuchs recent past: U.S. v. Rodriguez, 739 F.3d 481 (10th Ct. App. 2013). In my view, however, this 30 opinion (which Gorsuch did not write, but in which he concurred) is entirely consistent with a robust reading of the Second Amendment. Rodriguez is perhaps best described as a Fourth Amendment case (right against unreasonable search) with Second Amendment overtones, much like the recent Robinson decision out of the Fourth Circuit.

In both cases, the police lawfully that is, with reasonable suspicion that a crime was being committed stopped an armed person and disarmed him during the stop for purposes of safety. In both cases the person stopped was found to be in unlawful possession of a gun and was ultimately arrested.

In Rodriguez, the Court of Appeals unanimously, with Judge Gorsuch concurring, found the police seizure of the stopped persons gun for purposes of safety to have been lawful under the Fourth Amendment, and not an infringement of the Second Amendment.

Some in the gun community have characterized Rodriguez and Robinson as holding that a person who exercises his Second Amendment rights is now required to sacrifice his Fourth Amendment right against unreasonable search. I disagree with that view. While we must always be vigilant against substantive infringement of our Second Amendment rights and we know that those intent on such infringement will never cease their attacks we also need to acknowledge that all constitutional rights are subject to reasonable limitation, particularly when that reasonable limitation is transient.

The Fourth Amendment, for example, does not protect us from all government searches it protects us from unreasonable government searches. Similarly, the Second Amendment does not provide an absolute right to keep and bear arms under any circumstance.

Most in the gun community, for example, would agree that violent felons and the mentally deranged should be denied the right to arms and that doing so does not infringe the Second Amendment. Even in the context of law-abiding gun owners, few would consider a prohibition against carrying a gun into the Oval Office when meeting with President Trump to be an infringement of the Second Amendment, so long as our right to be armed could be asserted immediately afterward.

The transient seizure of a gun in the course of a lawful police stopa seizure, that is, based on reasonable suspicion that a crime is underwayand under circumstances in which the police do not know whether the person stopped is armed lawfully is, in my view, not an infringement of the Second Amendment. Requiring the officer making a lawful stop to presume that the person stopped stopped on reasonable suspicion of criminal activity is law-abiding and is armed lawfully strikes me as unreasonable.

The rationale for such a transient taking the safety of the officer, his partners, the public, and even the person stopped is compelling and reasonable. Guns are, in fact, dangerous thats why those of us who concealed-carry them for personal protection do so in the first place: to make ourselves more dangerous to criminal predators.

As a strong Second Amendment advocate and someone who has concealed-carried a firearm for pretty much every day of my adult life (so, for most of the last 30 years), I find it difficult to get too worked up over a temporary seizure of my handgun during a lawful police stop so long as my gun is returned once the reasonable suspicion of criminal activity has been dispelled and the stop completed.

I, for one, welcome Judge Gorsuchs nomination to the Supreme Court, with great optimism for the Courts future Second Amendment jurisprudence.

Andrew F. Branca is an attorney and the author of The Law of Self Defense: The Indispensable Guide for the Armed Citizen.

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Neil Gorsuch -- Second Amendment Would Be Safe with Him on ...

Mark L. Hopkins More Content Now

This is the second in a series of columns that relate to the purpose of the Second Amendment and the gun rights issue that continues to fester in our society. The first column pointed out the strong desire on the part of the leadership of the country to have a strong federal government. The focus here is in the feeling of necessity in the leadership to have a means to enforce federal law and to protect the government from citizen rebellions. The Second Amendment became the law of the land in 1791. Prior to that Daniel Shays, a former captain in the Continental Army, became the leader of a citizens rebellion in Massachusetts in response to what Shays and other farmers believed were high taxes and a government that was unresponsive to their grievances. In January 1787, they raided the arsenal in Springfield, Massachusetts and continued their anti-government rebellions through the winter of that year. This was two years before the writing of the U.S. Bill of Rights with its all-important Second Amendment. Retired General George Washington was so upset by Shays Rebellion that he wrote three letters commenting on it. Excerpts from these letters follow: But for Gods sake tell me what is the cause of all these commotions. Do they proceed from licentiousness, British influence disseminated by Tories, or real grievances which admit of redress? In a second letter he worried that, Commotion of this sort, like snowballs, gather strength as they roll, if there is no opposition in the way to divide and crumble them. I am mortified beyond expression that in the moment of our acknowledged independence we should by our conduct verify the predictions of our transatlantic foe, and render ourselves ridiculous and contemptible in the eyes of all Europe. Later he wrote, If three years ago any person had told me that at this day I should see such a formidable rebellion against the laws and constitutions or our own making as now appears, I should have thought him a bedlamite, a fit subject for a mad house. Shays Rebellion was eventually put down when a group of wealthy merchants in Boston pooled their resources and created their own militia to quell the uprising. In the early 1790s, a second major rebellion began in Western Pennsylvania. It was called the Whiskey Rebellion and, again, was a revolt against taxes. Thus, the Second Amendment was written and signed into law in the shadow of these two major citizens rebellions. The U.S. Congress reacted to this second major rebellion by passing The Militia Act which gave teeth to the Second Amendment by requiring all military-age free adults to stand for service to enforce the laws of the Union, thereby insuring domestic tranquility. President Washington himself gave orders to form a militia of 13,000 men to put down the Whiskey Rebellion. His words later were ..this is how a well-regulated Militia should be used to serve the government in maintaining a strong security in each state, as the Second Amendment of The Bill of Rights intended. From the letters written by George Washington and the actions of Congress it is obvious that the purpose of the Second Amendment was to strengthen the Federal Government against rebellion and insurrection. It was not, as some contend, to equip the citizens to make war on the government. In fact, it was just the opposite. My first of the three gun rights columns focused on the desire of the U.S. leadership to have a strong central government and the means to protect that government from rebellion. In this column the focus has been on the like-minded efforts of both President George Washington and Congress to put teeth in the Second Amendment so security and an orderly society could be fostered. My third and final column on this subject will come next week.

Dr. Mark L. Hopkins writes for More Content Now and Scripps Newspapers. He is past president of colleges and universities in four states and currently serves as executive director of a higher-education consulting service. You will find Hopkins latest book, Journey to Gettysburg, on Amazon.com. Contact him at presnet@presnet.net.

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Mark L. Hopkins: The Second Amendment and Shays' Rebellion - Wicked Local Watertown

Kansas Attorney General Derek Schmidt has asked congressional leaders to take action to protect Second Amendment rights of Social Security beneficiaries, according to a news release.

A group of 13 state attorneys general, including Schmidt, Wednesday urged congressional leaders to repeal an overreaching federal regulation that they said denies certain Social Security beneficiaries the right to keep and bear arms, according to the release.

In late December 2016, the Social Security Administration under then-President Obamas direction published a final rule that broadened a previously narrow prohibition for those adjudicated as a mental defective or who have been committed to a mental institution to include numerous individuals that Congress never intended to cover with this exclusion, such as program beneficiaries with representatives or alternate payees, according to the release.

This new rule allows the Social Security Administration to designate an individual a mental defective by its own discretion and relies heavily on overly broad definitions included in previous guidance from the U.S. Department of Justice, according to the release.

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