Monthly Archives: September 2019

Last January, the Supreme Court announced that it would hear New York State Rifle & Pistol Association Inc. v. City of New York, the first major Second Amendment case to be heard by the Supreme Court in nearly a decade and also the first since Justice Anthony Kennedys retirement shifted the Court dramatically to the right.

The case centers on an unusual and recently changed New York City rule that limited where gun owners with a certain kind of permit were allowed to bring their guns.

Gun control advocates, including policymakers in both New York City and the New York state legislature, fear a big loss in the Supreme Court and are desperate to make the case go away. Indeed, New York City changed their gun rules after the Supreme Court announced it would hear the case, and state legislators enacted a new law forbidding the city from bringing back the old rules all in the hopes of obviating the need for the Court to weigh in. Because the legal controversy between the city and the plaintiffs is now over, the city asked the Court to dismiss this case as moot.

The justices are scheduled to discuss whether to dismiss the case at their October 1 conference.

New York State Rifle, in other words, is of two-fold importance. It is important because the Supreme Courts current majority is likely to expand the scope of the Second Amendment significantly if they decide the merits of this case. But it is also important because the debate over whether to dismiss this case will offer a window into the psychology of the Courts Republican majority.

The argument that New York State Rifle must be dismissed as moot is very strong. Should the Supreme Court move forward with the case, it will only add to fears including fears that were recently raised by Justice Sonia Sotomayor that the Court is bending the rules in order to achieve conservative outcomes.

A few months before his death this summer, retired Justice John Paul Stevens offered a surprisingly candid window into the Courts internal deliberations.

In its 2008 decision in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right to bear arms. The Court split along familiar ideological lines, with Kennedy joining his fellow conservatives in the 5-4 majority.

Heller, however, was hardly a total victory for advocates of gun rights. Indeed, Justice Antonin Scalias majority opinion is riddled with caveats. Heller suggests that longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms all remain valid, as are bans on dangerous and unusual weapons.

In a November interview with the New York Times Adam Liptak, Stevens revealed that Kennedy asked for some important changes to Scalias original draft of the Heller opinion. At Stevenss urging, Kennedy requested language stating that Heller should not be taken to cast doubt on many existing gun laws. Without Kennedys intervention, in other words, Heller may not have included the important language limiting the scope of the Second Amendment.

But Kennedy is gone. And his replacement, Justice Brett Kavanaugh, appears very eager to expand gun rights.

Shorter after Heller was decided, the District of Columbias government passed legislation banning semi-automatic assault weapons and requiring gun owners to register their firearms. Dick Heller, the lead plaintiff in the Supreme Courts Heller decision, also led the challenge to this new gun law, and the case Heller v. District of Columbia was eventually heard by a panel of three Republican-appointed judges.

Two of those judges largely upheld the law in 2011 (although they called for further proceedings on the registration requirement). The third judge was Brett Kavanaugh, who claimed that both D.C.s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller. (This second iteration of the Heller litigation was never heard by the Supreme Court.)

And Kavanaughs dissent also went even further than that. The future justice did not simply argue that this specific DC law should be struck down. He also suggested that nearly a decade of Second Amendment jurisprudence should be tossed out.

Heller, as mentioned above, was the first Supreme Court case in American history to hold that the Second Amendment protects an individual right to own firearms. Since Heller, moreover, the Courts only handed down one significant Second Amendment opinion. And that 2010 opinion, in McDonald v. City of Chicago, merely held that states must comply with the same Second Amendment regime as the federal government.

The Supreme Courts Second Amendment jurisprudence, in other words, is underdeveloped. In Heller, the majority basically hit a reset button that wiped out the Courts prior Second Amendment decisions, which held that the obvious purpose of this amendment was the preservation or efficiency of a well regulated militia, not an individual right to bear arms.

Heller replaced this older framework with an uncertain new framework that emphasized an individual right to self-defense. But the Supreme Court has done little to develop that framework since Heller.

Yet, while the justices have largely avoided big guns cases, the lower courts cannot. And a consensus view emerged among the federal appeals courts regarding how the Second Amendment should be read.

At least 10 such courts apply what United States Court of Appeals for the Fifth Circuit Judge Stephen Higginson describes as a two-step analytic framework. Under this framework, severe burdens on core Second Amendment rights are subject to strict scrutiny, the most skeptical level of review that courts typically apply in constitutional cases. Less onerous laws, or laws that govern conduct outside of the Second Amendments core, are subject to a more permissive test known as intermediate scrutiny.

Thus, major burdens on gun owners are especially likely to be struck down, while less consequential burdens are more likely to be upheld.

Kavanaugh, for his part, rejects this consensus framework altogether. In his 2011 dissent, he argued that the consensus view should be abandoned for a different test courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny. While its unclear how Kavanaughs test would apply in every individual case, the fact that Kavanaugh took a position well to the right of his two Republican colleagues strongly suggests that his test would invalidate more gun laws than would the consensus framework.

New York State Rifle, moreover, offers someone like Kavanaugh the perfect vehicle to upend the consensus framework because the (now repealed) rule at the heart of this case imposes only a minimal burden on gun owners.

New York offers two kinds of handgun licenses. A carry license permits gun owners to carry a handgun for target practice, hunting, or self-defense. Meanwhile, a less permissive premises license permits a gun owner to have and possess in his dwelling a handgun. Premises license holders, however, may only bring the gun outside of their home for limited reasons, which include bringing the gun to seven specific gun ranges to practice shooting.

The plaintiffs in New York State Rifle, each of whom has a premises license, raise a very narrow challenge to this framework. As a federal appeals court explained, some of them seek to transport their handguns to shooting ranges and competitions outside New York City. One of them also owns two homes, and he wishes to be able to transport one gun between those two homes.

New York State Rifle, in other words, involves what Judge Higginson described as a less onerous law that governs conduct outside of the Second Amendments core. This isnt a grand showdown over when and where people can carry guns or whether they bring a gun into their own home. Its a small legal dispute about little more than whether lawmakers can require certain gun owners to practice shooting at certain specified gun ranges.

And yet, this very smallness is what makes New York State Rifle so dangerous to the consensus framework. The rule at the heart of this case is the very sort of gun restriction that the consensus framework is likely to treat as insignificant. And that gives the Supreme Court an ideal vehicle to hold that judges should treat all gun laws with skepticism even very minor ones.

All of this said, there is a strong argument that New York State Rifle must be dismissed as moot. Article III of the Constitution provides that the judicial power only applies to cases and controversies, meaning that federal courts may only hear live legal disputes between parties.

But New York City changed its rules to let people with premises licenses do what the plaintiffs in this case want to do. And the New York state legislature also passed a law providing that gun owners with premises licenses may bring their gun to another dwelling or place of business of the licensee where the licensee is authorized to have and possess such pistol or revolver, to an indoor or outdoor shooting range that is authorized by law to operate as such, or to a shooting competition at which the licensee may possess such pistol or revolver consistent with the law.

So the plaintiffs won! They asked for specific, narrow relief, and the state legislature gave it to them. Theres no longer a legal dispute between the plaintiffs and the defendants in this case, and that makes the case moot.

But a few amicus briefs submitted to the Supreme Court suggest that the case should not be dismissed under a doctrine known as voluntary cessation. Broadly speaking, this doctrine allows a court to continue to hear a case after a defendant voluntarily quits the behavior that led to them being sued. The point of this doctrine is to prevent a defendant from dodging lawsuits by doing something illegal, ceasing their illegal activity for long enough to dismiss any lawsuits challenging that activity, and then resuming their illegal actions as soon as the lawsuits are dismissed.

Yet, as a group of legal scholars explain in their own amicus brief, that doctrine does not apply here. The defendant in this case is New York City. But a law preventing the city from reinstating the challenged rules was enacted by New York state. It would be impossible, in other words, for the city to resume its allegedly illegal conduct because a higher power stripped the city of its ability to do so.

We could know as soon as next week whether the Supreme Court will dismiss the case or whether it will add to Justice Sotomayors fears that the Court is ignoring its own ordinary procedures, in this case by finding away around the mootness doctrine.

Yet even if the case is dismissed, such a decision will only delay a reckoning on the Second Amendment. Eventually, the justices will hear a gun rights case that is not moot. And when that happens, Justice Kennedy wont be around to inject a note of caution into the Courts opinion.

Read more:
Supreme Court gun case: the biggest Second Amendment case in years - Vox.com

Militia key to 2nd Amendment

The Second Amendment to the U.S. Constitution states, A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

My dictionary defines militia as A citizen army as distinct from a body of professional soldiers. A military force that is not part of a regular army and is subject to call for service in an emergency. The whole body of physically fit male civilians eligible by law for military service.

It seems logical that anyone has the right to bear arms; however, it should be to be part of a well-regulated militia. Gun owners, especially male civilians, should be required to register their arms so the government would know who it can call upon for service in an emergency. The government could then reimburse those called up for service for their expenses, such as ammunition expended.

Reference: American Heritage Dictionary

More here:
Opinion/Letter: 'Militia' key to 2nd Amendment - The Daily Progress

U.S.A. -(Ammoland.com)- Grassroots Second Amendment activists from across the country are being urged to attend a 2nd Amendment Rally on Saturday, Nov. 2 at the Capitol Building in Washington, D.C., where they hope to deliver a message that the right to keep and bear arms shall not be infringed.

Now is the time for activists to make plans, as the rally is a mere six weeks away. It is being dubbed as a rally for the Second on the 2nd.

As explained by activist Rob Pincus, director of media relations for Save the Second, during an interview with the Right of the People podcast from the Gun Rights Policy Conference in Phoenix, Weve got a big election coming up next year. We need to remind the nation, we need to remind ourselves that we are the Second Amendment lobby and thats why the 2nd Amendment rally is important.

Pincus pointed to the rallys website for details. There is also a Facebook page where people can learn details as they emerge. He said there is no sponsorship for this event and no single organization. Funding is provided by people who care about the Second Amendment.

What has sunk in over the past few months is that far too many people are willing to write a checkand say okay, Ive done my part, and then move on, Pincus lamented.

According to the rally website, The Second Amendment Rally is a grassroots event, organized and funded by grassroots activists, open to all supporters of the Constitution and lovers of liberty.

If you own a gun, Pincus said during the podcast interview, you are the gun lobby.

The rally is scheduled to begin at 1 p.m. and run for three hours.

Just how many will appear would be speculation at this point, but Pincus suggested that organizers are hoping for several thousand rights activists to attend.

Maybe having 10,000 people, 15,000 people standing on the capitol steps, on the capitol grounds, listening to some of the most active leaders the most active advocates inside the Second Amendment community for a few hours on a Saturday afternoon, he observed, I think that will be an opportunity for everybody to remember that we are the gun lobby. We are the ones who exercise these rights. We are the ones who benefit from these rights.

Pincus was one of 91 speakers who appeared at the 34th annual Gun Rights Policy Conference over the past weekend. As Ammoland News reported earlier, this years event was the biggest in the conferences history. More than 1,100 people pre-registered and it appears many if not most of them showed up for at least part of the event. In addition, according to Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation, the two-day event was viewed by more than 100,000 people as it was live-streamed on the SAF Facebook page.

In the past, gun rights activists have been a lethargic bunch, but this time around things are different. The Second Amendment has been under attack as never before, in part by anti-gunners exploiting mass shooting incidents to push bans on so-called semiautomatic assault weapons and high-capacity magazines, along with registration and one-gun-a-month schemes. Also on the gun control agenda are safe storage mandates, mandatory training requirements, expansion of so-called red flag laws and other restrictions suggesting that proponents are trying to turn Second Amendment-protected rights into government regulated privileges.

What also makes this year different for grassroots activism was the heat-of-the-moment candor by Democrat presidential candidate Robert Francis Beto ORourke during the recent debate. His declaration, Hell, yes were going to take your AR15, your AK47 finally erased any doubt that anti-gunners intend to disarm law-abiding American citizens.

Most noteworthy about the remark was the silence from all the other candidates on the stage, suggesting they all quietly concur with ORourkes threat. His comment was mentioned or alluded to repeatedly during the recent rights conference.

The Second Amendment expressly protects the rights of the individual, Pincus stated. The individual needs to get involved and the Second Amendment rally is an opportunity to do that.

About Dave Workman

Dave Workman is a senior editor atTheGunMag.comand Liberty Park Press,author of multiple bookson the Right to Keep & Bear Arms and formerly an NRA-certified firearms instructor.

Link:
'2nd Amendment Rally' Planned Nov. 2 in Washington, DC - AmmoLand Shooting Sports News

In my Aug. 27 Cap Times column, I addressed one of the standard avoidance measures used by politicians to avoid taking action to reduce the human carnage caused by handguns and assault weapons: blame the person, not the gun.

Here, I will address the other: the reflexive reference to the Second Amendment as though it were an article of faith which enshrines firearm ownership as a natural law. The text and the history of the Second Amendment tell us that the reality is quite different.

The text of the Second Amendment is grammatically flawed. It contains two unnecessary commas and three inappropriate capitalizations. Translated into modern English, it would read as follows:

"The right of the people to keep and bear arms shall not be infringed, because a well regulated militia is necessary to the security of a free state."

The right is clearly stated in the primary clause, but the terms used by the authors of the Constitution in the secondary clause require definition:

1. Well regulated militia: A militia is a group of people (men) bearing arms. Well regulated serves to indicate an army with a command structure and to distinguish such an army from an armed mob.

2. Security of a free state: The purpose of the Constitution was to bind 13 states into a single nation. Why, then, did six states insist on declaring themselves free and in need of armies to guarantee their security? The states whose leaders demanded this compromise were the agricultural states whose wealth was generated by the labor of African slaves. The well regulated militias which were authorized by the second amendment were state armies, formed for the explicit purpose of preventing the federal government from ending slavery.

The United States Constitution was ratified in 1791. Jump ahead to 1861. On April 14, following the inauguration of President Abraham Lincoln, the well regulated militia of South Carolina captured Fort Sumter and started the Civil War. On April 19, the well regulated militia of Virginia captured the United States naval base at Gosport. And, on July 21, the well regulated militias of the slave states, operating under a unified command structure as the Army of the Confederacy, defeated the Union Army at the first battle of Manassas.

With these events, the purpose of the Second Amendment was totally fulfilled.

The very specific wording and the history of the Second Amendment make it clear that a politicians evocation of the hallowed right to own handguns and assault weapons, the sole purpose of which are to kill human beings, achieves two goals. It keeps her or him in the pocket of the firearms industry and it guarantees the continuation of the uniquely American slaughter of its citizens by other citizens who keep and bear arms.

Gregory L. Schmidt, M.D., Ph.D., is retired. He was a professor of psychiatry at the University of Wisconsin School of Medicine.

Share your opinion on this topic by sending a letter to the editor to tctvoice@madison.com. Include your full name, hometown and phone number. Your name and town will be published. The phone number is for verification purposes only. Please keep your letter to 250 words or less.

Continue reading here:
Gregory L. Schmidt: The true meaning and purpose of the Second Amendment - Madison.com

This is in response to the recent letter by Jeff Bishop. There are three points I want to make.

First, it is not the case that those who question the wisdom of allowing military style weapons to be largely available are confused by terminology. Few people think of the AR-15 as an assault rifle just because of the letters AR. This is irrelevant. Whether it is an AR or an AK, the point is the same.

Bishop goes on to assert that the only difference between the AR and other weapons is looks. Not true, and Im sure he knows it. A bolt action rifle that holds three rounds cannot take out fifty people in a matter of seconds. But an AR or AK or similar weapon with a thirty round detachable magazine that can quickly be changed is capable of doing just that. This is an important distinction

Guns were invented to kill people or animals. Automobiles , etc. were not invented or intended for the express purpose of killing.

Bishop says that many people use ARs for varmint hunting. So what? What is that compared to the lives of children? Is his desire to shoot rats or prairie dogs for pleasure more important than the lives of kids in school?

And I wonder if Bishop has kids or grand kids in school, would he rather have an attacker show up with a blunt object or an AR?

As for the second amendment, Bishop exhibits a complete lack of understanding. The second amendment was about national security. The founders were worried that a professional standing army would be a threat to liberty. Thus, a well-regulated militia was seen as necessary to the security of a free people. The British were still a threat, as were other potential adversaries. Further, Shays Rebellion was fresh in mind, and a militia was needed to put down possible future insurrections, including possible slave revolts. The second amendment was never about citizens fighting against the government. That is a myth.

Also, the Supreme Court never recognized an individual right to own firearms until the 2006 D.C. v. Heller decision. But even in the majority opinion, Justice Scalia, hardly an opponent of gun ownership, stated that certain regulations on firearms were legitimate.

Lastly, Bishop asserts that if assault weapons are banned, it is just an incremental move toward banning all guns. This has no basis in fact. We had an assault weapon ban for 10 years, after all. And there is no political will in either major political party to do anything remotely close to banning all guns.

Jacqueline Dowell

Grand Rapids

Read the original here:
The second amendment was about national security - Herald Review

It seems a lot of people have a misconception of the meaning of the Second Amendment; The Bill of Rights gives no one anything. What it does do is stop the government from infringing on your right that is inherent to you just being a person. This goes way back 200 years in British common law.

As for getting the soldiers and National Guard on our streets to make them safe. Cant do that because of Posse Comitatus. It makes it illegal for federal troops to be used as a police force. If you dont think this is a problem, check on the fiasco of the aftermath of the Boston bombing where the police dressed like the military went door to door without warrants. If you didnt want to comply, the police broke into your house and searched it anyway.

There are estimated between 5 million and 10 million AR-15s in America. As of this writing, there have been 20 AR-15s used by school shooters. That is 0.0002 percent of AR-15s. You are worried about this? This is going to sound heartless but your child is more likely to be hit by lightning than be killed by a school shooter. It isnt callous, it is just math.

If you really want to understand the Second Amendment, read The Federalist Papers written by the real writers of the Constitution James Madison, Alexander Hamilton and John Jay in particular numbers 29 and 36.

James Hoover

Wailuku

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Read more from the original source:
'Federalist Papers' explain the Second Amendment | News, Sports, Jobs - Maui News