Behaving badly

If there are any of my left leaning friends who do not already know that I am a constitutional literalist, and that I do not twist words to make the 2nd Amendment mean something other than what it literally says… let me disabuse you of that notion. We have a problem with gun violence in this country, but the redefining our constitution is not the way to address that problem. There are far better avenues, but in order to achieve progress… we need compromise.

The New Jersey gun control debate may actually provide some sort of relief for folks stuck in the middle. The current smart gun law in that state sucks. The very left wing Chris Hayes of MSNBC seems to be getting a bit of a clue about this. Hayes, several of the gun control groups and even the Senator who wrote the bill seem willing to repeal it if the right will take a step or two toward compromise. I personally think that NJ law was horribly shortsighted and has done far more harm than good, and that it needs to be repealed. I would hope that if the left were to move in that direction that the right might see an opening for peace and give it a try.

Wrong.

So here comes this dude in the video, doing all the things the right says he ought to be able to do (small business owner, introduce new products, trying to get ahead like a good capitalist) and what happened? Dude runs a gun store and has a documented history of staunch resistance to any form of gun control. He sees an opportunity to offer a new gun to the market for those who might want it. Bad move. Now he sleeps in his own store to protect it from being burned down by his now former supporters. His family has received death threats.

The video tells the rest.

By the way… Mr. Raymond’s statement about Hayes reversing position on the NJ law has come true. On his show tonight Hayes made a statement of support for repeal, and had as guest the lady Senator who wrote the bill (didn’t get her name)… who made the same promise.

Tell me, my right leaning friends… how can this be justified?

This ain’t no chicken sandwich, and nobody threatened to kill the Catheys… your move.

   

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I swings both ways

When defending our Constitution I take the seemingly rare position of defending *all* of the document. Thus I take umbrage at being spied on by my own government even if all they collect is my metadata... whatever that is... as there can be no doubt that such action constitutes a 4A violation.  

I further detest the practice of targeted killings of Americans without due process, school sponsored group prayer in the classroom, vouchers that exist for the sole purpose of sending kids to religious schools on my dime. These actions violate 1A as does allowing really rich guys to hide behind corporate entities while buying elections. 

These violations originate mostly from the right side of our political spectrum although there is that continuation of Darth Cheney authoritarianism by the current administration that has me a bit upset. The left is far from innocent when it comes to constitutional infringement. In addition to the eavesdropping and denial of due process, they get it dead wrong on gun ownership. We can debate 2A language from here to eternity and it won't change the fact that our founders intent was that private citizens should have a guaranteed right to firearms. 

Over the years we've set reasonable restrictions to this right. We've done similar with all other constitutional guarantees, but many of my lefty friends don't feel there has been enough restriction while my right wingnut buddies chafe at current restriction while going ballistic at the slightest suggestion of more. To some degree and in some areas I might be persuaded to agree with both, but I refuse to go moonbat in either direction.

Now, with that said, I've gotta get something off my chest and my right wing buddies aren't gonna like it. It is time we did something with the all-or-nothing mindset being sold to the great unwashed by the NRA... otherwise known as the lobbying arm of the gun manufacturers. 

Several years back the left took the all-or-nothing position in their efforts to ban guns. The backlash was as swift as it was vicious, and after a relatively few years we have more money than Carter had Little Liver pills flowing into NRA war chests and dipshits like Ted Nugent defecating out his mouth at NRA conventions and Republican campaign events.

Politics is like a pendulum. The further to one side it swings the harder it swings back. Without moderation radicalism vs. overreaction swap sides with each swing. This is not good for our society, and this is where government should step in and steer the sides toward moderation.

A governor on a carburetor keeps an engine from over-revving, and reasonable statesmen in government should be able to moderate the rhetoric and find compromise before this debate throws a rod. Failing this I fear we'll simply see more and more radical pendulum swings. 

I like my guns. They've served me well through the years, giving me pleasure while causing no harm to others. Although I've sold several over the past couple years I still have some antiques that have been in the family for generations, a couple little plinkers used for target and skunk shooting, one remaining varmint gun, a pistol or two (again for plinking), and my shotguns.

My lefty friends may disagree, but shooting is a sport and firearm ownership is a protected right. My right wingnut friends will disagree with me when I say that even with this right there is room... even a necessity for some restrictions on firearm possession. Not many of the currently proposed restrictions would amount to a hill of beans, but something has got to give if we want to insure our right to keep and bear arms.

We gun owners are the ones with something to lose in this debate. With all of the recent and seemingly never-ending atrocities and simple acts of stupidity by folks who should know better, the absolutists on the left will eventually have the sand necessary to sway the middle and no amount of special pleading will prevent the inevitable. There is room for compromise before it gets to that point, but there will be none afterwards. 

If the wingnuts on the right don't back off and start moving toward something reasonable I fear the next swing will be so far to the left that at least a few of my firearms will fall victim to useless and unwise regulation. Once that happens it will be another two generations before the pendulum swings back to the right... if it ever does. I'd rather that not happen. 

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It might be easier

... for us to defend gun owner rights if there weren't so many dips defending gun owner rights.

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Baby on board

Fogg (writing on Libby Spencer's blog, ) takes aim at the overhype spewing from both poles of the political spectrum and very correctly notes that the foofaraw does nothing to solve any problems. As the good Capt. correctly observes, the quickest and easiest means of increasing the cost of anything is to whisper the word... "BAN".

Have all the miscellaneous and ballyhooed safety regulations done anything? Mandatory trigger locks, microstamping of firing pins, loaded chamber indicator and magazine disconnect regulations? No. Has there been an increase in the murder by firearm rate as is being said? No. It's lower than it was in the 1950's. The fear is oversold. Much of what is being proposed can be no more effective in protecting school children than those stupid, yellow Baby on Board signs people put on their cars in the '70s. It's just there for the "I hate guns" people.

The hyperbole of both sides represents just how frightened we are and how easily it is for fringe elements to take advantage of that fear. The left loonies are frightened of the right-wing radicals, and the right is frightened of the rest of the world. This isn't anything new. This kind of thinking harkens as far back as our second president and the implementation of the Alien & Sedition acts of 1798. 214 years later and we still find ourselves scampering about like headless chickens.

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There is good reason that it is called Reason Magazine

A few days ago Steve Chapman, columnist and editorialist over at the Chicago Tribune, penned a well-reasoned rebuttal of the Cook County Board's latest nonsensical and misdirected efforts in the gun control realm.

"The levy was dubbed a 'violence tax,' which is exactly what it isn't. It would not target criminals who have malice in mind, but would fall entirely on the law-abiding."

As Chapman points out, these efforts are futile because the burden they impose never falls on the intended target and is instead borne by the population segment the tax purports to want to protect. And neither will it stop the flow of firearms and ammunition into the Cook County area. Nobody with any sense will pay the price within the county when a short drive to some neighboring county with politicians sensible enough to understand that Cook County has just handed their sporting goods shops a plum will provide the savvy shopper whatever firearm or ammunition desired... further shipping sales tax monies out of Cook county to the detriment of the citizens.

All of this is smoke and mirrors. Gun ownership and possession is all but illegal in Mexico, yet which group in Mexico is it that is unarmed (and unprotected) and which is armed to the teeth? Pot (do they still call it that?) is illegal in this country yet I’d wager I could find some and get it bought within the next 24 hours if I was of a mind. 

Prohibition doesn't make anything unavailable... it just makes it inconvenient and expensive and it protects nobody. The bad guys don't mind because if it disarms anybody it will be to their benefit. 

Prohibition by any name and under any guise does not work and history has taught us that it never will. The politicians and bleeding hearts of Cook County would do well to learn this and refocus their efforts on other issues. Education comes to mind.

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A little something for everyone

Einer Elhauge is a professor at Harvard Law School. He joined an amicus brief supporting the much maligned constitutionality of the individual mandate contained in the Affordable Care Act. In a piece penned for the most recent issue of The New Republic Elhauge

If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?

The so called defenders of our Constitution, in argument before SCOTUS and without any supporting text or historical evidence, made a legal case against the Act’s individual mandate. The rhetoric from the right ranting against the mandate falsely claims that the framers of our Constitution would certainly have found such a measure to be unconstitutional.  They argue that nothing exists supporting this claim because a constitutional ban on purchase mandates was too “obvious” to mention. They base the claim that purchase mandates are unprecedented. Not so, says Elhauge…

In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

Congress did not stop there, says Elhauge, because six years later…

And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

Yes, I know Adams was not one of the founders. The editors correct this at the end of the article.

Elhauge next offers a little positive territory for conservatives, albeit still damaging to their effort to kill President Obama’s benchmark legislation.

…in 1792 Congress, including 17 framers, passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington.

The lesson we should learn from this piece is just how ignorant the average American has become regarding the history of our country, our Founders and the framers of our Constitution. Attempts to derail this legislation is every bit as misdirected as are Liberal efforts to twist the Second Amendment in justification of anti-gun legislation.

The ACA is a bastard bill only because of its wealth of compromises made necessary by right wing resistance. It can be improved and should be. So called “socialized” medicine works well in countries as varied as Cuba and Canada, Russia and Finland, Germany and Spain. Our own healthcare system contains examples of “social” healthcare. Consider the Veterans Administration and the TRICARE insurance program, not to mention Medicare.

Our Constitution does not prohibit either the employer or the individual mandates contained within the ACA. A simple study of Congressional activity debunks that concept as effectively as it debunks the anti-gun arguments.

If these mandates or the entire bill do not pass SCOTUS muster we should go back to the drawing board and as a nation cobble a bill that works. Of course this would require the Congress learn to conduct itself somewhere north of the kindergarten level.

Good luck with that.

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Big Boys Playing with Big Toys

The Cop or Soldier quiz that is making the rounds of the Intertoob (see Monday's blog) has raised some interesting observations. To some small degree the militarization of law enforcement in this country is understandable. The bad guys, after all, were winning the arms race there for awhile.

Take for instance the May, 1982 shootout in South Miami, FL in which two FBI Special Agents lost their lives and five more were wounded in an attempt to take two suspects into custody. The bad guys were armed with shotguns and semi-auto rifles converted so as to fire automatic bursts. The FBI had 9MM semi-auto and 38 caliber service revolvers as well as 12GA shotguns. The automatic fire caused the first death and maimed several of the agents. Finally an agent with most of an arm blown off managed to get close enough to empty the last five rounds from his 38, killing both suspects.

It was that particular incident that led to the search for better weaponry for law enforcement. When taking such events into consideration it only makes sense for the cops to be at least as well armed as the bad guys, but unfortunately it has gotten far out of hand. Cops today are armed with everything from military style long guns to armored vehicles replete with belt-fed automatic weapons.

I guess they had to find something to do with all their new toys, and the “War on Drugs” seemed like an appropriate use. The effort has cost billions of dollars, imprisoned tens of thousands of young Americans (most for simple possession), killed or injured hundreds (including many innocents and at least several law enforcement officers), created violent international drug cartels (which have caused thousands more deaths, both in this country and abroad), and have slowed America’s use of illegal drugs not a single iota. The results are nothing short of disasterous.

A quick Google search produced this interactive map and several stories of cops crossing the line with their toys and their tactics. A few are listed below, but for more results use the map to do a state by state search.

In 2008, 23-year-old Rachel Hoffman was attempting to complete a drug and weapons transaction in a sting set up by the Tallahassee, FL police. Rachel had agreed to be an informant after being busted for a minor drug charge. The cops promised her a lighter sentence. It cost her life.

Also in 2008 a young mother was killed and her 14-month-old child shot when Lima, OH cops kicked in her door looking for her boyfriend. The cops were said to be shooting at dogs in another room. This tragic incident cost an innocent, young woman her life… and it cost the city of Lima a cool $2.5 million settlement.

A couple days later the cops found the boyfriend and took him out too. It is not at all surprising that the State Attorney’s office cleared the police of wrongdoing. The dead man is painted as a very bad guy, but even if true it should not have led to his death at the hands of the police. What the cops were looking for was a large cache of drugs and at least one pistol… what they found was paraphernalia and some crack residue. No gun.

In June of 2010 the Las Vegas, NV narcotics division misidentified a man as a major drug and weapons dealer. Even though the guy they were looking for was seven years older, four inches shorter, 100 pounds lighter, and lived in a city almost 1,000 miles away, they got a warrant, kicked in the door and shot the man to death as he was kneeling on the floor with his hands raised above his head. The cops found a small amount of pot, a spent 223 shell. and a pawn ticket for the jewelry the man had sold to get rent money.

A former Marine lost his life just because cops in Pima County, AZ had an idea someone in the area might have some drugs. SWAT teams from four agencies raided “at least” four homes in a broad brush effort to find drugs. They showed up in full battle gear with heavy weaponry and an armored vehicle. The former Marine who had survived two tours in Iraq heard his home being broken into, armed himself and stood at the end of the hallway with the safety on the gun still engaged. Cops unleashed over 70 rounds, 60 of which hit Guerena. Four days after the raid the Sheriff had the warrants sealed and has refused to release any information. No justification for the raids could be made.

In October of 2011, 19-year-old Shelley Hilliard got busted with a small amount of pot. Cops threatened her with long jail time (which was a lie. The amount of pot was too small), but allowed as how she could reduce that by serving as an informant. Three days after the sting went down the dealer Shelley had helped bust was released and promptly murdered her.

A couple years ago in this space I railed against the use or TASERS. My argument at the time was that the cops lack sufficient training, compassion and the good sense to use the tool properly. Every week it seems we see some new abuse of the things. The heavy armament now commonplace with most SWAT teams deserves the same scrutiny.

Until the cops outgrow the “big boys playing with big toys” mentality, America cannot afford this kind of law enforcement.

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Slow learner

Just a few years ago it was D.C. with the Heller case, but more recently Chicago has been at the epicenter of disputes over gun rights. The decision in McDonald v. Chicago reversed the obviously wrong-headed city ordinance denying law abiding citizens the right to possess firearms for self protection. Although I’m far less fond (and in great disagreement) with other recent decisions, especially Citizens United (effectively granting Personhood to corporations) and the more recent Wal-Mart v. Dukes (effectively denying Personhood to women) rulings, SCOTUS got it right with McDonald.

But Chicago seems to not get the message. It was just last summer when SCOTUS struck down the Chicago ordinance that effectively banned handguns in the city. SCOTUS, in no uncertain terms, told the city that the Second Amendment applies to states… and therefore to municipalities.

So what did the city do? In the wake of that ruling, Chicago enacted yet another ordinance… this time requiring gun owners to get firearms training, which required practicing at a firing range, but then banned firing ranges within the city limits. Classic fail! Guess what? They found themselves back in court yet again.

Litigation ensued once again claiming that the Chicago ordinance violates the Second Amendment. The 7th Circuit, taking a cue from Heller and McDonald, enjoined the ordinance, ruling Wednesday that those objecting to the ordinance have “a strong likelihood of success on the merits.” The 7th Circuit opinion described the ordinance as “too cute by half” and that it amounted to “a thumbing of the municipal nose at the Supreme Court.”

You lose again, Chicago. When are you going to figure out that the American people will not be denied their rights?

Didn’t take long to answer that question. Chicago is a slow learner. In the wake of this most recent ruling the City Council quickly leapt into action, crafting a new ordinance allowing gun ranges in Chicago under strict permitting guidelines… banning ranges within 1,000 feet of a school, park, place of worship, day care center, liquor store, library, museum, hospital, residential district or another gun range.

The Sun-Times reports on the latest Chicago gun ordinance. The NRA told the Sun-Times that the ordinance is so restrictive it could invite another lawsuit. It will and it should. Citizens need to keep pounding on SCOTUS’ door each and every time our government oversteps it's bounds. This our right… and it is our duty. We won’t always prevail, but losing should never dampen the effort.

Now it is time to revisit Citizens United and Wal-Mart....

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The futility of visceral reaction

When Jared Lee Loughner pulled out a semi-automatic 9MM pistol with an extended magazine and shot 19 people in a Tucson parking lot, he set into motion another wave of emotional rhetoric and prompted the filing of a spate of gun banning bills. The usual suspects came out of the woodwork, hesitating not even a respectable 24 hours before resurrecting the specter of previously rejected legislation.

The emotional responses are, of course, misplaced. To begin with, we must recognize that Loughner was clearly mentally ill. None of the proposed legislation would not have prevented Loughner, or anyone so obviously deranged from purchasing a weapon or ammunition, and particularly not those used in this crime.

Even if all guns were made illegal and banned from every citizen, there remains the black market. The drug trade well demonstrates that those desperately desirous of illegal items can easily find them, and will be willing to pay higher cost.

The question then becomes, do we wish to make guns unavailable to the law abiding while recognizing that criminals will then be the only ones, other than law enforcement, who are armed?

The first reaction to this will undoubtedly be that we have the police to protect us. I submit that this is an invalid argument. The police are under no obligation to protect the citizens. In 1999 a young Denver area mother learned this the hard way.

Immediately following the Tucson murders, the advocates for gun control, and even some pundits who by now should know better, pointed to the Clinton era assault weapons ban (AWB,) saying that it should be reinstated to prevent such events. Contrary to those assertions, Loughner very likely would not have been affected by the AWB. The law banned neither the Glock 19 used in the attack, nor the extended magazines. What would have been banned is the transfer or possession of new large-capacity magazines. That particular gun was not among those banned, and previously owned magazines were exempted. Existing weapons and magazines remained commonplace in spite of the AWB.

In an article published in Businessweek, Harvard economist Jeffrey A. Miron writes that Loughner could easily have utilized pre-ban magazines, or found one on the black market. Alternately he may have simply carried multiple, lower capacity magazines, or multiple weapons. Had the latter been the case, since he was interrupted as he fumbled to insert a second magazine, Loughner could actually have found more victims and done more damage. The AWB may have caused Loughner to work a bit harder to gain the weapons he needed to do his intended damage, but would hardly have stopped him.

There is another argument against knee jerk reaction to this tragedy, as is eloquently stated in the Harvard Crimson by Peyton R. Miller. Gun policy should aim to minimize aggregate crime.

“How a law operates at the micro level, as in the Tucson massacre, is relevant only insofar as it helps us understand the law’s broader impact. The appropriate question to ask in deciding whether to reinstate the AWB is not whether it would prevent certain isolated incidents, but the extent to which it would reduce overall crime, and whether this reduction outweighs the cost of imposing such a ban.”

Certainly government has the responsibility try to prevent incidents like the Tucson shooting, but reasonable people must realize that crime and senseless events will happen in spite of any law. The mentally ill are unpredictable, and criminals do not care about laws.

The goal of the gun control advocates is preventative, which is a wholly impossible dream. Laws should show some demonstrable public benefit, and not simply be restrictive in hope of benefit. None of the legislation proposed can cite demonstrable benefit, yet all impose onerous restriction on the citizenry.

As a final argument, I submit that gun control actually aids criminals. With knowledge that the law abiding public is disarmed, criminals will certainly be more emboldened and less concerned with confrontation by intended victims. A known defenseless victim is a sweet target. Currently criminals must at least entertain the thought that a potential victim or bystander might be armed, and that they are at some risk.

Irrespective of laws, Loughner was clearly out of control and would have found a way to commit this crime. The terribly overused cliché applies very well in this case: guns don’t kill people, people do. The evil in this episode was not the gun or the large capacity magazine; it was mental illness.

Prevention should not entail futile efforts to remove a useful tool, but to identify and help (or incarcerate) those who would commit violence in spite of law. So instead of allowing visceral reactions to guide policy, let’s figure out how we can unite as a people to make guns less accessible to the mentally ill, and let’s work also to figure out ways to identify and help the individuals suffering from mental illnesses.

It should be noted that Rep. Gabrielle Giffords, the apparent intended target of this attack, was a staunch defender of the Second Amendment, and an advocate for reasonable, limited gun laws. Somehow I just don’t feel that she would be in favor of so many using her name to promote gun bans.

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Discussion from another blog

A couple days ago I mentioned a new blog I was following, then had to qualify my support because on the very next day it appeared like the blogger, a bloke calling himself Tao, was taking a shot at 2A firearm rights. Tao clarified that he was not a gun-grabber, and I've enjoyed responding to some challenges he tossed my way.

Yesterday I posted a long comment in answer to a series of comments and questions, then this morning I decided to make some observations on his closing comments, which I had not addressed in my first reply. Rather than pollute Tao's place with any more of my inane rantings, I figured I would bring it here.

In responding to my assertions that prohibitions of gun ownership by law-abiding citizens, Tao raises some issues relating to the Law of Unintended Consequences, and how striking the Chicago ban down on 14A grounds might affect other legal constructs.

Tao first asks…

"Then do realize that by using this argument to change existing thinking the Supreme Court will now have solidified Roe Vs. Wade and the anti sodomy laws that also used the 14th Amendment to overturn them. "

And then states…

"You will also find yourself in a few years with this very case being used to overturn any state bans on gay marriage and abortion."

My Response:

Tao. I spent some time trying to understand your underlying meaning in this assertion. Since I apparently misjudged your intent in the message to which I first responded, I do not want to be guilty of the same misstep again. But try as I may I cannot read between your lines. Are you indicating that you favor or oppose these local prohibitions?

In the very first message on your blog you indicated you wished to address truth, and avoid ideology. An admirable goal, but not necessarily one that is easily accomplished. Truth is in the eye of the beholder, and the local prohibition laws you reference are manifestations of what the locals consider truths. Others apparently disagree, or there wouldn't be challenges rising to the level of the Supreme Court.

It is my position, and I believe it was the base position of our founders, that every individual should be allowed whatever "truth" in which that individual chooses to believe, but that the individual should not be permitted to impose ideology on others against their will. Therefore, any and all controls on individuals should be behavior based, and reactionary in nature. Preemptory control of thought or expression, or prohibitions based upon possible behavior, would violate this philosophy.

As an example, the Chicago gun ban infringes on Mr. McDonald's rights, and does so without constitutionally allowed reason. Mr. McDonald is not a criminal. He has no record other than an honorable military record. There is no indication that Mr. McDonald is in any way mentally impaired. He presents no apparent danger, either to himself or others. The ban, which is based upon a majority vote, violated an individual right and is therefore unconstitutional.

So any prohibition of thought or expression imposed on unwilling individuals, or of behavior not directly and adversely affecting others, is a violation of that individual’s natural rights.

When the state, by the will of the majority, prohibits me from possessing a firearm, and this prohibition is arbitrary (not based upon condition or behavior), the state is in violation of law. The same would apply if I were prohibited from possessing a Bible, a copy of the Communist Manifesto, or a frying pan.

Equally heinous are laws prohibiting me from marrying another male simply because I am male myself, or a female from marrying another female, or prohibitions of certain sex acts and/or positions when the partners are of the age of majority and consenting. Prohibiting this behavior represents the imposition of ideology, and should therefore be ruled unconstitutional.

Abortion is a can of worms. Determining the point at which life starts; when the zygote becomes an individual, is a tough question and one which I am unprepared to address. Abortion disturbs me, but I do not really know why, and I cannot say that the practice should be illegal. I have insufficient knowledge to make an informed judgment, and thus will not impose my ideology-based opinion. I do not have that right, and neither does the state.

In summary, the laws you mention (with the possible exception of abortion) are infringements on individual liberties. Just like the Chicago across-the-board ban on personal ownership of firearms, they represent the will of the majority being imposed unconstitutionally upon a minority.
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Gunsights

I've been snooping around for a gunsight. My bifocals are making the use of a scope progressively more difficult, so I'm interested in alternatives. I don't hunt much anymore and most of my needs are for shorter ranges, usually under 100 yds.

One of the items catching my attention is red dot sights. These seem a bit urban warfareish, and there is very little magnification, but maybe one would suit my needs for a short-range plinking and semi-urban varmint dispatching.

In reading and surfing I've found loads of these sights in a variety of price ranges, but not all that many reviews or user evaluations upon which to establish an opinion.

I discussed my ideas briefly with JayG over at MArooned. Jay admitted he had little experience with this kind of sight, and since he couldn't figure out how to mount a bayonet to one he didn't have much to offer. Jay offered one good suggestion, and opined that the more expensive sights probably cost more than they were worth in my situation. He suggested that cheap is good enough for this variety of sight.

I like cheap. Cheap is good, so I've been comparing prices. For the moment I've set my sights (pun) on the NcStar D4RGS; a 4-reticle red/green dot sight. If nothing negative surfaces, that is likely going to be my purchase. But I sure would like to hear what someone with a little knowledge might have to say.

So, I thought I'd toss it to the sharks. Any opinions? Suggestions?

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Gun question

The question relates to United States v. O'Brien & Burgess.

Is there an accepted, legal definition for the term, "machine gun"?

The most common definitions I can find are variations of "a gun that fires rapidly and repeatedly," or "an automatic weapon." But do those not beg for definitions of "rapid" and "automatic"?

One definition for "automatic weapon" describes a "gun that reloads itself and keeps firing until the trigger is released," but no such definition can be found for "machine gun".

There seems to have no single, universal, legal definition.

Aren't all guns "machines"?

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Crime & Punishment

SHARP AS A MARBLE is a blog I read often, and sometimes shake my head at the content. While I applaud that he is a staunch defender of individual rights, Robb all too often gets confused about the origin of the threats. Still, on balance, the blog is an enjoyable read.

Friday Robb hit a home run with a post about felons and gun ownership, and his comments regarding the stupidity of the law. The loss of the right to vote due to a felony conviction is just as stupid, but that is another blog post.

Pop over and give Robb’s piece a read, then pop back here and give me a comment.

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The right to bear arms

The Second Amendment to the U.S. Constitution is at the heart of the issue of gun control. The Second Amendment declares "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."

To understand 2A, one must interpret the text, the historical background for its adoption, and the intent of the framers of our Constitution. Such a thorough investigation has not always been undertaken as the rights of gun owners have been debated in Congress, the courts, state legislatures and city halls.

History shows us that the struggle with England and King George prompted the American people to be very wary of a standing army, and of a supreme leader. The founders recognized that one man with supreme power and a large, armed force could easily be tempted into unjust action against the citizens. For that reason our political system contains the many checks and balances prohibiting one branch from dominating over either of the other two.

2A, therefore, spoke to the founder’s concern that the government should never gain power over the individual. The amendment was framed to protect individual citizens from oppression by government as much as to allow citizens a means of self-defense from criminals and invading armies alike.

“A militia is the only safe form of military power that a popular government can employ; and because it is composed of the armed [citizens], it will prevail over the mercenary professionals who man the armies of neighboring monarchs.” [1]

Firearms have been a part of this nation since the time before we were a nation. To 16^th century Americans, possessing firearms was common and necessary. There was resistance in that first Congress to the inclusion of 2A for this reason. That free firearm ownership should be enshrined in our constitution seemed unnecessary. “[T]his right had not been questioned, for it was viewed as a traditional privilege lying outside the Constitution...”[2] Citizens with firearms was so commonplace at the time that many of our founders were not concerned with codifying this right into law.

The situation is far different today. There is much controversy and the intent of the founders is up for debate. SCCOTUS has been an on again, off again friend to gun owners in this regard. The traditional view of free ownership of firearms was questioned in U.S. v. Miller (1939), when SCOTUS held that the amendment merely protects the right of states to form a state militia. Even before the Miller interpretation, Congress, state legislatures, and local governing bodies were passing laws that restricted the right to bear arms. Kentucky passed the first state legislation prohibiting the carrying of concealed weapons, in 1813, and by 1993, firearms were regulated by approximately 23,000 federal, state, and local laws. [3]

State and local firearms laws vary widely. Some states prohibit the carrying of concealed handguns while others require permits for concealed carry. Three Chicago suburbs—Morton Grove, Oak Park, and Evanston—ban handgun ownership outright. Generally, firearms regulations have been more restrictive in large metropolitan areas.

While states base their power to control firearms on the police-power provisions of state constitutions, Congress derives its power to regulate firearms in the Commerce Clause, in Article I, Section 8, Clause 3, of the U.S. Constitution. Under the Commerce Clause, Congress may regulate commercial activity between the states and with foreign countries. In reviewing federal legislation enacted pursuant to the Commerce Clause, SCOTUS has granted tremendous leeway. Congress may enact criminal statutes relating to interstate firearms transactions, and that body has utilized that leeway to a great extent.

In 1927, Congress passed the Mailing of Firearms Act, which banned the shipping by mail of concealable handguns, then followed this with the National Firearms Act of 1934, which placed heavy taxes on the manufacture and distribution of firearms. A few years later, Congress enacted the Federal Firearms Act of 1938, prohibiting unlicensed manufacturers and dealers from shipping firearms across state borders.

In 1968, following the assassinations of John Kennedy, Malcom X, Martin Luther King Jr., and Robert Kennedy, public outcry prompted the passage of the Gun Control Act of 1968, which repealed the Federal Firearms Act and replaced it with increased federal control over firearms, destructive devices (bombs, grenades, etc.) and explosive materials.

The attempted assassination of Ronald Reagan in 1981 and the shooting of his aide James Brady led to pressure for even more gun-control. It took them 12 years, but in 1993 Congress passed the Brady Handgun Violence Prevention Act, which amended the 1968 GCA, requiring U.S. attorney general to establish a national instant background check system and immediately put into place certain interim provisions, including a waiting period, until the federal system became operational. These measure cast the burden upon local and state law enforcement, and the uproar and outrage was immediate.

Law enforcement across the country objected to the onerous burden of performing the required background checks. Some sued, and various district courts ruled the requirement unconstitutional. However, the U.S. Court of Appeals for the Ninth Circuit consolidated two of the cases and reversed these decisions, finding none of the Brady Act's interim provisions unconstitutional. The question was off to the Supreme Court.

SCOTUS, in Printz v. United States, (1997) reversed the Ninth Circuit, ruling that the interim provisions were unconstitutional. Justice Scalia believed that the interim provisions disturbed the separation and equilibrium of powers among the three branches of the federal government by transferring the President’s duty to administer enacted laws to Congress. The Brady Act "effectively transfers this responsibility to thousands of CLEOs [Chief law enforcement officers] in the 50 states," leaving the president with no meaningful way of controlling the administration of the law. Thus, according to SCOTUS, CLEOs could not be required to accept Brady Forms from firearms dealers.

In Gillespie v. City of Indianapolis, (1999), a former police officer, who had been convicted of domestic violence and lost his job, challenged the Brady prohibition of persons convicted of domestic violence offenses from possessing a firearm in, or affecting, interstate commerce. The Seventh Circuit found that Gillespie had standing to challenge Brady, noting that 2A was intended to ensure protection by a militia for the people as a whole.

SCOTUS, however, failed to find a reasonable relationship between ownership of a particular gun and the preservation and efficiency of a state militia, and ruled against Gillespie. Other lower federal courts have similarly held that 2A does not prohibit the federal government from imposing some restrictions on private gun ownership.

The next assault (pun) came in August 1994 when Congress passed. This act banned the manufacture, sale, and use of nineteen types of semi-automatic weapons and facsimiles, as well as certain high-capacity ammunition magazines.

A bit of a tide change came in 1995 when SCOTUS set some limits on congressional efforts to control guns with the landmark decision in United States v. Lopez. The Court ruled that Congress had exceeded its authority under the Commerce Clause by passing the Gun-Free School Zones Act of 1990, holding that such gun possession was not an economic activity that significantly affected interstate commerce, and therefore beyond Congress's power to regulate.

Large cities have always been at the forefront of the gun control effort, and in 1998 several brought lawsuits against the gun industry to recover mounting costs in law enforcement and health care. Mayors from New Orleans, Miami, Chicago, San Francisco, Chicago, Cleveland, Cincinnati and Philadelphia hoped to emulate the success of the tobacco settlements. In February 1999 they were encouraged when a federal jury returned the first-ever verdict holding gun makers liable for damages caused by the use of their products in a crime. But as many more cities considered filing suits, the gun industry fought back with lobbying and launched preemptive strikes in state legislatures against future lawsuits.

Many of the lawsuits were dismissed. The gun industry enjoyed two victories in 2000 as judges dismissed suits brought by the cities of Philadelphia and Chicago. A judge in the Cook County Circuit Court dismissed Chicago's claim because Chicago had failed to prove that gun manufacturers were responsible for public costs resulting from criminal gun violence. Likewise, a Pennsylvania judge dismissed Philadelphia's lawsuit because under the Pennsylvania Uniform Firearms Act—for which the gun industry lobbied—the state of Pennsylvania has the sole authority to regulate the industry.

State and federal appellate courts have generally held in favor of gun manufacturers as well. The California Supreme Court, in Merrill v. Navegar, Inc., (2001), held that gun manufacturers cannot be held responsible when their products are used for criminal activity. The closely watched case stemmed from a 1993 shooting rampage in a San Francisco office tower that left eight people dead and six wounded.

The Third Circuit, in Camden v. Beretta, (2001), upheld the dismissal of a suit brought by Camden County, New Jersey accusing several gun manufacturers of creating a public nuisance and acting negligently in the distribution of handguns. The Third Circuit also upheld the dismissal in Philadelphia v. Beretta.

Over just the past few years we have seen some turnaround in this debate, and honest citizens are beginning to see some light. In District of Columbia v. Heller (2008), SCOTUS held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment.

Heller recognized a right to keep and bear arms in self-defense, which logically presupposes some legal right to self-defense. Justice Scalia writes of a "right to self-defense" in terms that raise it to constitutional stature. "That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right."

The U.S. Supreme Court has set a date to hear another landmark civil liberties case that will determine whether 2A prohibits state and local governments from enacting stiff anti-gun laws. Oral arguments in the lawsuit, McDonald v. City of Chicago, will be held on the morning of March 2, 2010. A decision is expected by late June or early July. Even gun control advocates are predicting a win for gun owner rights.

The intent of the founders when “the right to bear arms” became an enumerated right, obviously, was to ensure an individual’s ability to protect life and property. The rights of the people should not be subject to the whims of those with little understanding of, or lack of regard for the history of our country.

CITATIONS:

[1] Nesbit, L. 1990. Gun Control Debate: You Decide. New York: Prometheus Books.

[2] Hook, D. Gun Control: The Continuing Debate. Washington: The Second Amendment Foundation, 1992. Out of print, available used only.

[3] Dolan, E., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts.

OTHER READING:

American Civil Liberties Union. 1996. The ACLU on Gun Control.

Dunlap, C. 1995. "Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment." Tennessee Law Review 62.

Gottfried, T. 1993. Gun Control: Public Safety and the Right to Bear Arms. Millbrook Press.

Kopel, D., et al. 2003. Supreme Court Gun Cases. Phoenix, Ariz: Bloomfield Press.

Lock, P. 1999. Pervasive Illicit Small Arms Availability: A Global Threat. [PDF] Helsinki, Finland: European Institute for Crime Prevention and Control, Affiliated with the United Nations.

Lott, J. 2000. More Guns, Less Crime: Understanding Crime and Gun-Control Laws. 2d ed. Chicago: Univ. of Chicago Press.

McCoskey, W. 2002. "The Right of the People to Keep and Bear Arms Shall Not be Litigated Away." [PDF] Indiana Law Journal 77 (fall).

Zelman, A. et al. 2001. Death by "Gun Control": The Human Cost of Victim Disarmament. Hartford, Wis.: Mazel Freedom Press.

National Rifle Association Website.

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