Friday, February 15, 2013
President Obama Is Not Interested In Protecting Kids
I'll say it out loud: Pres. Obama is not really interested in protecting kids. If he was, he would embrace the idea of armed guards in schools - an idea supported by California Sen. Barbara Boxer - who is certainly not a supporter of gun rights. He would recognize the undeniable fact that 99.5% of mass shootings take place in so called "gun free zones" and call for an end to these killing fields. He would go after criminals that violate the thousands of federal gun laws already on the books - instead of REDUCING prosecutions by 40%. More than anything else, if he wanted to stop mass shootings and all manor of violence, his primary thrust would be in the field of mental health. If he did these things, which are supported by almost everyone, then the violence he says he wants to stop would at least be greatly reduced. So, why doesn't he do this?
The only possible answer is simply horrifying: He needs lots of dead bodies to achieve his goal: The effective destruction of the 2nd Amendment and the effective disarmament of the American people. This has been his goal for a very long time. When he was a professor at the University of Chicago, long before he entered politics, he told another professor what he really believes: "No one except the police and the military should be able to possess a firearm". He knows he can't do this all at once - so he plans to do it in stages, banning and eventually confiscating different kinds of guns until he has banned virtually all firearms.
This is why he won't use the laws on the books to the maximum. This is why he wants your kids to be defenseless victims. He needs dead bodies, preferably children, so that each time there is an outbreak of mass shootings he can say, "We need to do more". If something greatly reduces the killings, he won't be able to push his real agenda. Just watch - he may give lip service to the things that will really work, but he won't really do anything on these fronts. 95% plus of his energy will be focused on new gun laws aimed, not at criminals, but at law abiding Americans exercising their 2nd Amendment rights. Once those rights have gone and the plain reading of the 2nd Amendment rendered mute, the rest of your rights won't be far behind. Wake up!
Monday, February 4, 2013
What Will The Constitution Allow? New Gun Laws And Current Constitutional Law
Which Of The Proposed New Laws Will Survive Supreme Court
Review?
Let me preface this article with a disclaimer: I am not a lawyer. That said, most lawyers practicing today know very little about
current constitutional law and firearms.
This lack of knowledge stems from two causes: First, everything they
learned in law school has been invalidated by recent rulings in 2008 and 2010. Second, most lawyers specialize after passing
the Bar – and very few specialize in firearms law. As a result, I can say that I know much, much more about this
subject than the average lawyer – because I have followed this issue very
closely for many years.
In contrast to what was falsely taught in law schools
until very recently, the Supreme Court (SCOTUS) ruled in 2008 that the 2nd
Amendment protects an individual, personal right to own a firearm. In this case (DC v. Heller) the court ruled
that the District of Columbia could not ban the possession of handguns. There are several important aspects to this
ruling:
First, SCOTUS held that, like 1st Amendment
rights, the 2nd Amendment right is not absolute and unlimited. The majority held that: “Like most
rights, the right secured by the Second Amendment is not unlimited. From
Blackstone through the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose……. Although we do
not undertake an exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be taken to cast doubt on
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.”
Second, SCOTUS gave some guidance as to what kind of
weapons are protected, specifically those in common use by citizens. “We also recognize another important
limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons
protected were those “in common use at the time.” “But as we have said, the conception of the militia at the time
of the Second Amendment’s ratification was the body of all citizens capable of
military service, who would bring the sorts of lawful weapons that they
possessed at home to militia duty.” The common use provision is rooted in
the Miller decision (1939). Thus
machine guns and sawed off shotguns may be banned, but any firearm in common
possession by the public for any lawful use cannot be banned. It should also be noted that in Miller
SCOTUS held that in order to be protected, the firearm is required to have
military value.
Third, SCOTUS held, addressing the question at hand, than
a ban on the possession of handguns was and is, unconstitutional. This is extremely significant because the
District of Columbia argued that the ban should be upheld because handguns are
commonly used in crime and the self-defense needs of citizens could be met with
rifles and shotguns. SCOTUS disagreed: “Whatever
the reason, handguns are the most popular weapon chosen by Americans for
self-defense in the home, and a complete prohibition of their use is invalid.” The rejection of this argument is extremely
significant. Handguns are used in 60%
of homicides. If they cannot be banned
because they are a popular and common firearm, than no other common and popular
firearm can be banned.
Fourth, in Heller SCOTUS did not rule on the level of
protection (or in legal terms, scrutiny) that the 2nd Amendment
right should be accorded. They
stated that there was no need to address the issue because a total handgun ban
would be unconstitutional even if the 2nd Amendment were accorded
the lowest level of scrutiny.
Almost immediately after winning the Heller case, gun
rights advocates filed suit against the City of Chicago, which had an identical
handgun ban. They did so in order
to establish if the 2nd Amendment was “incorporated” under the 14th
Amendment. Incorporated rights are
restrict all levels of government, not just the Federal Government. In the McDonald decision (2010) SCOTUS
held that:
First, the 2nd Amendment is incorporated and
therefore applies equally to all levels of government.
Second, and perhaps of equal importance, SCOTUS held that
the 2nd Amendment is “fundamental to our system of ordered
liberty”, signaling that it is to be accorded a very high level of scrutiny,
perhaps as high a level as the 1st Amendment.
Right to Carry?
Additionally, in December 2012, the 7th U.S. Circuit
Court of Appeals found that there is a constitutional rights to carry (bear) a
firearm outside the home and ordered the state of Illinois to establish a
legal method of concealed carry within 90 days. It is unknown if Illinois will appeal to SCOTUS, or to the entire
7th Circuit. Illinois is the
last state with no legal method of citizens to carry a firearm.
In another case, Woollard v. Sheridan, the issue is
simple: Can the state require an applicant for a concealed carry permit to
provide that they have a “need” or “good cause” before issuing it? The Federal District Court held that the
right to carry is included in the 2nd Amendment and that the state
cannot require a person to show “good cause” to exercise a right. The 4th Circuit Court of Appeals heard
Maryland’s appeal of the case on October 24, 2012, and has not issued its’ decision
as of February 4, 2013 .
It is probable that one or both of these cases will be
appealed to SCOTUS. Specifically, the
high court has quietly let it be known that it is looking for a “clean”
concealed carry case. So they can
decide the issue.
How This Applies To Currently Proposed Laws
Proposed and Current Assault Weapons Bans: Since
“Assault Rifles” are some of the most popular firearms in the US (the AR15
pattern rifle out sells all other firearms), there is little question that the
bans in place in some states and proposed at the federal level are, in fact,
unconstitutional. It is inconceivable
that, after ruling that the most common murder weapon (60% of murders) in the
US cannot be banned because it is protected by the 2nd Amendment,
rifles responsible for less than 3% can somehow be banned. Gun control advocates are grabbing at straws
on this one.
In contrast, so called “Assault Pistols” – which are merely
“cut down” rifles - are not in common use and a well written ban would likely
survive review.
Magazine capacity limits: This situation is somewhat
less clear. It is probable that the
court would apply the same “common use” test.
If they indeed take this approach, then they might allow a ban on some
“high capacity magazines” not in common use – such as 30 round pistol magazines
and 100 round rifle magazines – while invalidating bans on magazines in common
use, such as 30 round rifle magazines and pistol magazines holding 15-20 rounds
held within the grip of the pistol.
Given the example of New York state, which just lowered its’ magazine
capacity limit to 7 rounds from 10 rounds, gun rights advocates can make a
strong argument that arbitrary limits can and will be used to effectively
cripple the firearm and therefore infringe upon the right to own a fully
functional protected firearm.
“Universal” Background Checks: It is here that the
gun control advocates have their best chance, both politically and
legally. It is not likely that SCOTUS
would consider a background check to be an infringement, since the court has
already held that felons and the mentally ill can be prevented from owning or
possessing firearms. This assumes that the
background check would indeed be designed to accomplish this purpose and would
not involve unnecessary delays or “waiting periods”.
Beyond the federal level, many state laws, such as those
in California and New York that go far, far beyond what is proposed at a
national level, are without question in violation of the Constitution. The only reason they have not been struck
down is that gun rights advocates have learned a lot from other civil rights
cases. They are proceeding slowly and
systematically, intentionally forcing the courts to define the extent and
limits of the 2nd Amendment right.
In contrast, the gun control lobby is pushing government at every level
to simply ignore the constitution and pass even more restrictive laws that
directly conflict with recent SCOTUS rulings.
So, there you have it.
Given all of the news about gun control, one might ask: Why has the
national media not covered this aspect of the story?
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