January 16, 2008

• “Intellectualist” View on Second

Posted in Darwin Awards, From The Blog-O-Sphere, No Guns Allowed, Politically Speaking at 2:40 pm by Rid

Saul Cornell: The Second Amendment Goes to Court

Source: Origins (2-1-08)

Few issues in America public life are more emotionally charged than guns and no subject within this political maelstrom is more bitterly contested than the Second Amendment. Although it is hard to imagine this issue heating up any further, it is about to get red-hot.

Earlier this year, the Court of Appeals for the District of Columbia struck down the District of Columbia’s local gun-control law on Second Amendment grounds. The D.C. Court is only the second Appeals Court to affirm that the Second Amendment protects an individual (as opposed to collective) right to bear arms, and the first one to actually strike down an existing gun control law on this basis. The case is now heading to the Supreme Court, which has not taken a Second Amendment case in almost seventy years. District of Columbia v Heller will likely shape the contours of future discussions of gun control for decades to come.

It might even have an impact on the dynamics of the 2008 presidential election. For better or worse, history—the history of the 2nd amendment and the history of how Americans have interpreted it—is also likely to be at the heart of the case.

The Second Amendment reads: “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.” What do these words mean? Well, the answer to this question depends on who you ask. Supporters of the so-called collective rights interpretation believe that the Second Amendment only protects the right to bear arms within the context of well regulated militias. Supporters of the so-called “individual right” interpretation view the right to bear arms as a right vested in individuals, much like the 1st Amendment right to freedom of speech.

The fact that there are two such divergent interpretations is the result of significant changes in how Americans view the 2nd Amendment that occurred during the latter part of the twentieth century. For most of the last century, the meaning of the Second Amendment was not particularly controversial: the courts, legal scholars, politicians, and historians endorsed some version of the collective rights interpretation. As late as 1991, Chief Justice Warren Burger described the individual rights view as an intellectual fraud. Yet, the growth of a revisionist individual rights theory of the Second Amendment in the years since Burger made his comment has been nothing short of astonishing….

No First Amendment scholar would argue that we ought to interpret freedom of the press exactly as the Founders understood it. Yet, claims like this are common in Second Amendment scholarship where the original meaning of the Amendment seems to figure more centrally than in other areas of constitutional law. In part the propensity toward originalism—the theory that we ought to interpret the Constitution according to its original meaning—mirrors the ideology of modern conservative thought. Originalism fits with conservatism because it provides a strong critique of the modern regulatory state created after the New Deal. Second Amendment originalism also draws on a potent set of myths associated with America’s past, particularly the idea of the Minuteman. Thus, gun rights sites on the internet invariably carry images of the Minuteman. (Although these images are generally drawn from the individualistic and romantic 19th century memorials to the Minuteman and have little to do with the real Minutemen who were part of the Founding era’s well regulated militia.) http://www.gunowners.org/

Ironically, the originalist arguments in favor of an individual rights view of the Second Amendment are probably the intellectually weakest arguments to support this position. One could make a much stronger and intellectually more interesting argument in support of an individual rights view if one adopted a living constitution argument. Supporters of a living constitution believe we ought to interpret the Constitution according to modern concerns and beliefs, recognizing that America has changed radically since the 18th century. Polling data over the last few decades have consistently shown that most Americans believe the Second Amendment protects an individual right. http://www.pollingreport.com/guns.htm

It would be easy to imagine a theory of the 2nd Amendment that defended this right as part of a living Constitution that has evolved toward a more individualistic conception of rights. Yet, most gun rights advocates eschew this line of argument in favor of originalist historical claims about the Second Amendment. In part this decision reflects the underlying political ideologies behind gun rights. Libertarians and social conservatives, the two groups most closely identified with the individual rights view, are generally uncomfortable with living constitutional arguments because the idea of an evolving constitution has been closely associated with modern liberalism over the past century.

There are problems, however, with this reliance on an originalist interpretation: it rests on a distorted view of the past. Consider some of the claims made by gun rights supporters. No figure has been more abused by Second Amendment originalists than Thomas Jefferson. As one gun rights advocate noted: “It is clear Jefferson was strongly in favor of personal arms. In June of 1796, Thomas Jefferson wrote to George Washington, ‘one loves to possess arms.’” This quote has been cited by four different pro-individual rights scholars in law reviews. The quote is accurate, but it is clearly taken out of context. In a forthcoming article in the Albany Government Law Journal, historian David Konig points out that this quote had nothing to do with firearms. Jefferson was actually talking metaphorically, about having all of the facts one needed in an argument—going into an argument with all the right “ammunition.”…

January 14, 2008

• Darwin Award 13

Posted in Darwin Awards, From The Blog-O-Sphere, No Guns Allowed, Politically Speaking, Uncategorized at 7:07 pm by Rid

This is how our liberal press (not necessarily The Sun) amplifies and over-modulates an issue they are partial to. They make a big deal of 18 friends of the courts briefs being filed last week (regarding U.S. v. Heller) of the 435 total US Representatives. That is less than 5% of all US Representatives – hardly an avalanche of  support.

Concealed” 
   ***** 

Cuomo Stands Alone on 2nd Amendment

By JOSEPH GOLDSTEIN
Staff Reporter of the Sun
January 14, 2008

In arguing that the Second Amendment case now before the Supreme Court shouldn’t have any bearing on state gun control laws, Attorney General Cuomo is finding himself largely alone among state attorneys general.

Mr. Cuomo filed a brief, signed onto by only four other states and Puerto Rico, to the federal high court last week in District of Columbia v. Heller, which will be heard in March. In the case, the Supreme Court will review whether Washington, D.C., residents have a right under the Second Amendment to keep handguns at home for self-protection. The District of Columbia has what amounts to a blanket ban on handguns.

The question of whether states can regulate gun ownership is not at the forefront of the D.C. case. But gun rights proponents say a decision endorsing a reading of the Second Amendment that favors private gun ownership will lead to challenges of state gun control laws.

Mr. Cuomo’s brief is, in effect, an effort to limit any damage to the relatively strict handgun regulations in New York and some other states that might result from a Supreme Court decision favoring private gun ownership. The brief argues that the Second Amendment does not limit the power of state governments to regulate gun ownership.

The brief argues that the Second Amendment protects the rights of states to keep militias without interference from the federal government, and is therefore primarily about state sovereignty. In that sense, the brief suggests, a reading of the Second Amendment that put restrictions on what states can or can’t do “would dramatically alter the Amendment’s meaning and turn its federalism-grounded purpose on its head.”

That argument is a position frequently argued by supporters of gun control. What is most unusual about the brief, perhaps, is not what Mr. Cuomo argues, but what little backing he managed to get from other states. The brief, prepared by Mr. Cuomo’s office, is joined by Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico.

Although briefs in support of Washington’s law were due last week, the briefs opposing the District of Columbia’s effort to save its handgun ban won’t be filed for another month. That may be when the bulk of the state attorneys general make their position known.

“I believe that you will see a substantial number of lawmakers and state attorneys general siding with the individual-rights view of the Second Amendment,” the lawyer who expects to argue against Washington before the Supreme Court, Alan Gura, said.

Some of those briefs are expected to contain arguments that endorse an individual rights interpretation but also leave room for substantial regulation of guns. Because many legal experts expect the Supreme Court to strike down the Washington law, even attorneys general in favor of some gun control may see it as better strategy to side with the expected winners.

“I could see an attorney general saying that maybe if I come in on the other side, I may be able to find the middle ground and have more credibility with the court,” a former attorney general of Maine, James Tierney, who now runs the National State Attorneys General Program at Columbia University, said.

“They think the District of Columbia is likely to get struck down, but they don’t want that decision to go beyond striking down that provision,” he said.

Some attorneys general may simply not take a side.

Besides Mr. Cuomo, few New York politicians filed briefs opposing an individual rights view of the Second Amendment. The city’s chief lawyer, Michael Cardozo, who was appointed by Mayor Bloomberg, signed onto San Francisco’s brief, which argues “firearms regulation is a critical part of cities’ efforts to protect the health and safety of their residents.”

District attorneys from four of the five boroughs and Albany argue that courts have long held that the Second Amendment provides for only the right of a state to form a militia.

Of the 18 members of the House of Representatives who filed a brief arguing against an individual rights interpretation of the Second Amendment, only one, Rep. Carolyn McCarthy, belongs to the New York delegation. It is possible that the lawmakers’ brief wasn’t circulated widely.

“My suspicion is that because of the holidays and the fact that it was circulated during the recess, there were some members who would have decided to join who didn’t because they didn’t review it,” the attorney who filed the brief, Scott Gant of Boies, Schiller & Flexner LLP in Washington, said.

December 18, 2007

• Giuliani for Gun Control

Posted in From The Blog-O-Sphere, No Guns Allowed, Politically Speaking, Resources at 1:54 pm by Rid

“Concealed” believes that it is impossible for zebra’s to take off their stripes. And while I lived in NYC under the Giuliani administration and liked most of what he did, he is, none-the-less a pro-guncontrol guy and his records speaks for itself. “Concealed”___________________________________________________

 

From Sea Coast Online :

Under the gun, Giuliani supports second amendment

 

 

var isoPubDate = ‘December 17, 2007’

DURHAM — Republican presidential candidate Rudy Giuliani said that he would support the Second Amendment despite his imposition of a ban on semi-automatic handguns while mayor of New York City.

“I used the gun laws aggressively in New York. I had to and it worked well,” Giuliani said in response to a question asked during a brief campaign stop at Goss International Monday. “As president of the United States of America, I would be honor bound to uphold the second amendment.”

This was not the first time Giuliani had been confronted with his well-known stand on gun control. In an analysis of the former mayor’s position, John Velleco, director of Federal Affairs for the Gun Owners of America group indicated Giuliani had tried to extend his vision of gun control to the nation in the 1990s.

Noting the mayor’s current stance that states should have the right to choose whether to control guns and to what extent, Velleco said that position does not jibe with Giuliani’s former positions.

“If Giuliani’s gun control agenda was really limited ‘only’ to big cities, that would be disturbing enough,” Velleco said. “But the record shows that the Mayor continually tried to export his gun control agenda to the rest of the nation.”

During the forum, Giuliani restated the health care plan he first announced in July at the Governor’s Inn in Rochester. Newsday.com called it “a version of a $15,000 tax break for insurance that President George W. Bush floated earlier this year without success.”

Asked how he would insure the approximately 47 million Americans currently without any form of health insurance, Giuliani said the most important thing is to bring down the cost of that insurance.

“There’s only one way to do it if you want to reduce costs and improve quality – you need a large consumer market,” the former mayor said.

Giuliani’s plan would offer the tax break as an incentive to have individuals give up their current, employer-paid insurance in order to join his large market of consumers.

“If they can find a policy for less, they can keep the rest of the money,” Giuliani said.

A family would have to be earning a minimum of approximately $75,000 to even have a tax liability of $15,000 a year, but Giuliani chose not to talk about that Monday. However, he did recognize that a $15,000 a year insurance policy would probably have high deductibles, so he called for health care savings accounts to deal with that issue.

December 14, 2007

• Darwin Award 7

Posted in Darwin Awards, No Guns Allowed at 2:41 am by Rid

The Following is from http://www.buckeyestateblog.com, a liberal blog in Ohio. As you read this article, see if you are not struck with the same conclusion that I was: Cundiff should have sat by idly as he and his girlfriend was attacked, while camping. See if I get this, it’s ok to defend your life while at home…but not while camping in a federal park. Yes….perfect sense.

“Concealed”  ____________________________________________________________

Interesting piece from “ThisWeek” outlinging some of the hearings going on in the Ohio House regarding introduction of the “Castle Doctrine” to the Ohio Revised Code.

I’ve written about the doctrine in the past. I still feel that if done responsibly – not giving gun owners carte blanche to shoot upon sight whenever and wherever they want – that this change in Ohio liabilities could be a positive. And, well, that’s generally at odds with most folks in the party.

 A 27-year-old northeast Ohio man told the Senate Judiciary Committee on Criminal Justice on Dec. 5 that, more than six years after a justified shooting in self-defense, he is still in court awaiting a civil trial filed by the man he shot.

“My life is literally on hold and has been for seven years,” he said. “I cannot own property, or establish a personal savings, as I fear for the consequences that lie ahead.”

After a shooting Sept. 17, 2001, when Cundiff and his girlfriend were assaulted while camping, Cundiff himself was arrested and charged criminally. Cundiff said he was tempted by a plea bargain, exchanging a guilty plea for a six-month sentence, but he girded himself and went to trial.

“Imagine my terrible choice,” he said. “I could go to trial, risk seven years in prison, spend thousands of dollars, and rely on the jury, knowing full well I was innocent, or I could take the easier, guaranteed deal that would allow me to avoid a long prison term. I chose the jury route, but it was a terrible gamble with my life.”

In the more than five years since he was acquitted on criminal charges, Cundiff said, the only significant action in the civil suit was a successful effort by Cundiff’s insurance company to obtain a ruling that his insurance did not have to pay any of his expenses, on the grounds that the shooting was deliberate.

Hmmmm. The castle doctrine usually nullifies criminal and civil liability for use of a deadly weapon in defense when someone intrudes upon your home. Other, more expansive, versions of the doctrine allow use of a weapon for other areas which can be considered a “home” to some (cars, RV’s, tents, etc.).

In this example at the Ohio House I’m a little concerned that someone would take a firearm with them while camping. Making a bit of a leap, if they were in federal, or even state lands, there’s a good chance that the weapon was prohibited by law. But regardless, this is the exact type of expansive reading of the castle doctrine I have a hard time supporting. I think folks should be allowed to use a weapon without fear of liability to defend their own home, but once you start throwing in tents, and trailers, and campsites, and the whole yahoo in, you run into some problems where you can use a gun virtually anywhere without recourse.

December 12, 2007

• Gun Control UK-Failure

Posted in Case Reports, From The Blog-O-Sphere, No Guns Allowed at 4:54 am by Rid

Gun law takes over in gangland drug warsJames Clark, Home Affairs Correspondent
GUN crime in Britain will escalate sharply as drug gangs battle for supremacy, police experts will warn ministers after the election. Police estimate that nearly 300,000 illegal guns or replicas capable of being reactivated are now in circulation.

The number of firearm offences increased from 4,903 in 1997 to 6,843 last year, but ministers will be told that a particularly high surge in murders using firearms in the past 18 months will continue, with more and more criminals prepared to use weapons to defend their businesses and territory.

Trafficking in the weapons is also on the increase, the National Criminal Intelligence Service (NCIS) will tell the prime minister in July, when it issues its confidential threat assessment.

The sharp warnings will be accompanied by new pleas from senior police officers for stricter gun laws. David McCrone, deputy chief constable of Greater Manchester police and the UK’s most senior police officer dealing with firearms, does not rule out the possibility of growing numbers of armed police on the beat if the situation does not change.

In recent weeks two men have been machine-gunned to death in a residential street in north London, a pensioner was hit by a stray bullet during a shoot-out in Manchester and, in the past 18 months, three “drive-by” shootings have alarmed police in both cities.

Last Monday, Alice Carroll, 70, was shot in the back as a gunman opened fire on another man near her home in a quiet residential cul-de-sac in Longsight, Manchester. The divisional police headquarters is just 200 yards from her door. She is the first innocent bystander to have been caught up in the new wave of drug violence sweeping the city. Police think she may have been shot when a meeting between drug dealers turned nasty.

Carroll said: “We had a few people trying to sell drugs a couple of years ago but a new woman officer took over in the area and cleared them all out. I was just in the wrong place at the wrong time.”

Greater Manchester police say that in the 12 months to March last year there were eight deaths by shooting in the force’s area, and nine the following year.

Some forces are now understood to be considering increasing the number of officers who are armed routinely. Last year Nottinghamshire became the first force to arm beat officers with handguns in a trial project.

McCrone, who sits on the government’s firearms consultative committee (FCC) and is head of the Association of Chief Police Officers’ (Acpo) committee on firearms, says: “I don’t think armed British police are inevitable, but we need to do more to make sure that doesn’t happen.

“Many criminals are now ‘renting’ guns for killings. We see the same weapon being used in different parts of the country in different scenarios.”

He will demand new laws to outlaw many replica guns and to ban the license-free ownership of machines to reload bullets. Home-loaded rounds are most commonly used in gangland killings as legal or stolen rounds are less readily available since the ban on handguns was introduced in the wake of the Dunblane shootings in 1996.

NCIS will warn in July that there remains a “strong link” between firearm possession and drug trafficking. It will say that many young men carry weapons as a “fashion accessory” but use them in violent situations in the way that they might previously have used a knife. The largest number of guns is imported from western Europe, although more unusual weapons, such as rocket launchers, have been imported from the former eastern bloc.

According to police, the price of contract killings has fallen from thousands of pounds to as little as £200, with the killers now more likely to be drug addicts than professional assassins. A north London crime family pioneered the idea of using crack addicts to kill its rivals because they are seen as “disposable” and their evidence in court is often unreliable.

The rise in gun crime has mirrored sharp overall rises in violent crime. While Jack Straw, the home secretary, was able to bring about a 0.2% fall in crime overall, violent crime has more than doubled in the past four years, although part of this has been attributed to a change in statistical methods. Street robberies, muggings and attacks have grown by 30% in some places, while drink-related crime has also risen sharply.

Source: The London Times

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