Category: RKBA

No, We Don’t Want Women to Have the Same Rights as Guns

Nearly every time the pro-life movement achieves a significant legislative or judicial victory, progressives create either memes or protest signs riffing on conservatives’ commitment to gun rights. These takes were out in full force after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, both because of the magnitude of that ruling and because the previous day, in New York State Rifle and Pistol Association v. Bruen, the Court struck down a New York law that required individuals to demonstrate a need to carry guns outside the home.

Leftists on Twitter said they wished that “women in America had the same rights as a gun.” They must have tweeted these wishes in fits of passion without really thinking about them, because putting women on the same legal footing as guns would be pretty sexist. If Democrats had their way in Bruen, women would have to demonstrate to the government a need to leave their homes. Here’s what else would happen if we were to treat women like guns:

Men would need a permit to bring women outside the home. While Bruen made it unconstitutional for the government to require people to demonstrate a need to carry guns beyond their doorstep, most states in the union require gun-owners to possess concealed-carry permits. The requirements for these permits vary from state to state, but most require applicants to be a minimum age (usually 18 or 21) and take a class on firearm safety. Putting such regulations on women going beyond their doorstep would seem more fitting for a country like Afghanistan than for the United States.

Women would not be allowed to attend school. We often hear about gun-free zones after school shootings. The Gun-Free School Zones Act of 1990 criminalizes the possession or discharge of a firearm in a school zone. If we were to treat women like guns, K–12 schools would become “woman-free zones.” Similarly there are many college campuses that do not allow students to carry on campus. There were times in our country’s history when men and women were not allowed to attend school together, and those were not good times. Progressives describe the decision in Dobbs as “going backwards,” but that would be more apt if we treated women the same as guns.

Women could be bought and sold. If we are worried about objectifying women, calling to give them the same rights as literal objects is not helpful.

In short, this idea that “women should have the same rights as guns” would be more like The Handmaid’s Tale than any pro-abortion caricature of pro-life legislation ever imagined. Our political slogans are not meant to be the height of discourse, but we should expect them to be minimally coherent.

Hmmmm. Didn’t know they had one. Oops! I been a baaaad boy.

The Second Amendment Isn’t Only Guns: Virginia’s Switch Blade Ban Died Today.

Knife Rights’ Virginia Switchblade Ban Repeal Bill, SB 758, is effective today (July 1). The possession, carry, sale, purchase and manufacture of automatic (switchblade) knives will be legal in the state.

NOTE: The concealed carry knife bans in Virginia, including of switchblade (automatic) knives, will still remain in effect: “If any person carries about his person, hidden from common observation, (i) any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, … or (v) any weapon of like kind as those enumerated in this subsection…”

Holding a Virginia Concealed Handgun Permit doesn’t allow concealed carry of an automatic (switchblade) knife.

Knife Rights will never stop until all archaic knife restrictions in Virginia are repealed.

With the repeal in Virginia, only five states remain with a complete ban on civilian possession of switchblade (automatic) knives. Knife Rights has led the effort to repeal switchblade bans or restrictions in 19 states, starting with New Hampshire in 2010. Repeals have since been enacted in Alaska, Colorado, Illinois, Indiana, Kansas, Louisiana, Maine, Michigan, Missouri, Montana, Nevada, Ohio, Oklahoma, Tennessee, Texas, Virginia, Washington and Wisconsin.

Altogether, Knife Rights’ efforts have resulted in 39 bills repealing knife bans in 25 states and over 150 cities and towns since 2010.

Poll finds opposition to SCOTUS’ Second Amendment ruling

The reason the Supreme Court is appointed for a lifetime term is so they won’t have to consider public sentiment on controversial issues like, say, guns. Once they’re confirmed, they can’t be removed simply because their findings aren’t popular.

Yet that won’t stop some from looking to see how people feel about rulings made by the Court.

In a recent poll, there appear to be some interesting takes regarding guns.

The Monmouth poll shows just what restrictions people favor, including 60 percent saying they support a national gun registry, as one example.

It also found 83 percent support, to some degree, universal background checks.

Now, in the past, I’ve been critical of how these questions are asked, but Monmouth phrased it as, “Do you support or oppose requiring comprehensive background checks for all gun purchasers, including private sales between two individuals?”

That, at least, removes any ambiguity, so while I oppose the policy, I can at least accept the number.

The poll also argues that most disagree with the Bruen decision.

They asked respondents, “Do you agree or disagree that individual states should be allowed to limit who can carry a concealed handgun by requiring permit applicants to demonstrate that they need the weapon for their work or for protection?”

It found that 56 percent agree that states should be able.

On this, though, there is some ambiguity. The problem is that the phrase “for protection” isn’t quite how things worked. You had to show a specific reason why you needed to be able to protect yourself, as opposed to everyone else.

I suspect at least some of that 56 percent are supportive of a more general idea of “for protection” than the now overturned law allowed.

But not all of the poll’s findings are distinctly anti-gun.

Meanwhile, they also found that 63 percent feel that the law will either make them safer or have no impact on public safety, with just three percent saying they don’t know.

As for the subject of mass shootings, Monmouth asked, “Do you think the number of recent mass shootings in the U.S. is due more to the ease of getting guns or due more to a mental health crisis in the country?”

55 percent said it was the result of a mental health crisis compared to just 33 percent who blamed easy access to firearms, with 9 percent saying it was both.

The poll also looked at why those who admitted to having a gun decided to have one, with “personal safety” and “protect my property” both being a major reason for most of the respondents.

“[D]efend again possible government tyranny” was only a major reason for 28 percent. Yet it was noted as a minor reason for another 23 percent.

So what does any of this mean?

Well, for one thing, we haven’t done a good enough job educating the general populace about the benefits of firearm ownership, nor of the fact that gun control simply does not work. We also haven’t done a very good job of educating people about the importance of their rights as a whole. Far too many are apparently willing to deal their rights away for the illusion of safety, not recognizing that the illusion masks something far more sinister.

We all–and I’m looking at myself–need to do better about that.

NPR finally realizes that when seconds count, police are minutes away

When your society has reached a point where you can’t agree on whether or not a man can get pregnant, you know that rational discourse based on shared underlying facts is extremely difficult if not impossible. Generally speaking, but especially so in a society that has reached such a point, the government ought to stay completely out of the news business. Yet, unfortunately, we have taxpayer-funded left-wing propaganda in the form of National Public Radio (NPR).

NPR’s far-Left bias is well-known. Still, it’s amusing to see them finally realize something that gun rights advocates have said all along, that when seconds count, the police are minutes away.

The tragic history of police responding too late to active shooters

Confusion, chaos and wrong information appear to have contributed to law enforcement’s delay in stopping the gunman at Robb Elementary School in Uvalde, Texas.

The gunman spent more than an hour inside the school while police waited outside, authorities say. This was because the incident commander, school district police chief Pete Arredondo, treated the scene as a barricaded-person situation rather than as an active shooter situation.

Details of exactly what went wrong are still hazy as the investigation is ongoing.

Law enforcement experts say what happened in Uvalde is reminiscent of what occurred in prior mass shootings, including the attack at Columbine High School in 1999 and at Marjory Stoneman Douglas High School in 2018.

As shown by the Uvalde shooting and others before it, police are still making tragic missteps in the most critical moments of active shooter situations — regardless of training.

Police are human beings like the rest of us. They are not supermen or demigods. Exclusively depending on the police for one’s protection is a bad idea because of the fallibility of our fellow humans in uniform.

“Columbine changed everything,” Joseph Giacalone, an adjunct professor at John Jay College of Criminal Justice and a retired New York City Police Department detective sergeant, told NPR. “When you have an active shooter, you have to end the threat. Because if you don’t, the person continues on killing.”

Cullen went on to say that this protocol has worked. During the 2007 Virginia Tech shooting, he wrote, “it probably saved dozens of lives.”

This is something that the gun rights community has been screaming from the rooftops for a long time. Stopping aggression that’s imminent or already underway requires the immediate reciprocal use of defensive force.

Calling cops and waiting is a bad idea when an attack is imminent or already underway, because when cops do arrive, there is no guarantee that their response won’t end up in inaction, such in Uvalde or Parkland, or in shooting the wrong person, as was the case with John Hurley in Arvada, CO.

The article also addresses fear, command, the lack of intelligence (just one meaning of the word, unfortunately), and basic incompetence such as not checking if your radios are actually functioning.

Though this may be the standard now, instances have shown that fear may get the better of responding officers….

“It’s about the unifying of command. It’s about having an unseen coordinator. It’s about somebody dictating what has to go on inside and when somebody has to go on dealing with things outside,” he said. This was clearly a missing piece in Uvalde, Giacalone said….

More work needs to be done to address intelligence available to officers at these scenes, Giacalone said….

The shooting at Marjory Stoneman Douglas High School occurred just outside the Coral Springs Police Department’s jurisdiction, yet the 911 dispatch center didn’t make any officers aware of the shooting for over four minutes after receiving the first 911 call, according to the commission report analyzing the shooting…

Additionally, officers reported their radios not working at all, causing many not to respond urgently when they heard gunshots.

Although it is good to see NPR tell its listeners and readers that police responses can be slow and ineffective, and address a wide range of factors such as training, command, intelligence, fear, and incompetence, it is a letdown to see NPR not acknowledge the best solution that gun rights advocates have been demanding all along: armed self-defense.

That may take another decade or two, but better late than never, right?

States with higher rate of gun ownership do not correlate with more gun murders, data show

Calls have rung out across the nation demanding gun control laws in a bid to curb violent crimes such as the recent series of mass shootings. Data, however, show that in states with higher percentages of households with at least one gun, crimes are not higher than in states with strict gun laws.

“Gun ownership is higher in states with fewer restrictions, and homicide rates in these states are lower. People can protect themselves,” George Mason University Professor Emerita Joyce Lee Malcolm told Fox News Digital of what she’s found through her research. Malcolm pointed to a study on burglars from 1986 that found 34% of burglars interviewed reported “to having been scared off, shot at, wounded or captured by an armed victim.”

Fox News Digital compiled FBI data from 2019 detailing murders and gun murders per 100,000 population for most states, as well as assembled Rand Corporation data released in 2020 showing the percentage of households with at least one firearm in 2016. The data does not reflect the skyrocketing violent crimes of 2020 and likely undercounts the current percentages of homes with at least one firearm as it does not reflect the influx of Americans who rushed to arm themselves in 2020.

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Justice Thomas referenced such shenanigans in the Bruen decision itself.
To be clear, even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department.

and (at the end of footnote 9)
….because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

May just be me, but I read that as Justice Thomas slyly daring New York, and other states, to enact crap-for-brains laws like this.

Actually, not very much

How will the new federal gun law affect Missouri? It’s complicated
In 2021, Gov Mike Parson signed the Second Amendment Preservation Act, which bars local law enforcement from enforcing federal gun laws.

The federal gun safety bill passed with bipartisan congressional support in June was heralded as the first notable piece of federal gun legislation in nearly 30 years. Yet Missouri won’t feel its full impact — yet.

Missouri will benefit from the millions of dollars in the Bipartisan Safer Communities Act set aside for mental health, crisis intervention and school safety programs. Retiring Sen. Roy Blunt co-sponsored the mental health component of the legislation.

But the provisions in the bill related to gun monitoring programs or red-flag laws cannot yet be implemented by state law enforcement because in 2021, Missouri passed the Second Amendment Preservation Act (SAPA), which bars local law officials from enforcing federal gun policy and could fine them for doing so.

The U.S. Department of Justice filed a lawsuit against the Missouri statute in February and the law is currently being challenged in Cole County court by St. Louis city and Jackson County. There isn’t a timeline on when the case could be settled, but until it is, SAPA is in effect in Missouri.

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If it’s from a Yale law professor, you can bet it’s unconstitutional

Yale law prof suggests new route to carry ban, but is it constitutional?

Short answer? Almost certainly not, based on what the Supreme Court said last week in New York State Rifle & Pistol Association vs. Bruen, but as we’ve already seen in states like New York, New Jersey, and California, anti-gun activists aren’t letting a little thing like a Supreme Court decision get in the way of their desire to disarm average, everyday Americans.

So what is Ian Ayres’ big idea? Basically, he wants to flip the current law in the vast majority of states to make concealed carry banned on private property unless the owners of that property decide to allow it.

You might be surprised to learn that when you ask someone to come and repair your dishwasher, they can legally carry a concealed weapon into your kitchen unless you expressly object. In all but three states and D.C., any visitor can, by default, carry a firearm into your home without your explicit permission. The repairman has a Second Amendment right to bear arms, but you have a right to control whether people carry guns onto your land.

A central attribute of property ownership is the right to exclude unwanted people from your land. Forty-seven states fail to adequately protect this right of landowners to control their property because they provide the wrong default rule regarding the right of invitees to bear arms. Property owners cannot make an informed choice if they don’t know they have to object (more than two-thirds of people are unaware of these default rules). And it is hard for a property owner to know that she needs to object when the objectionable firearm is concealed.

The same problem exists regarding private commercial land. All 50 states permit individuals to carry their firearms into private retail establishments by default. Private businesses must post “No Guns” signs to make their stores gun-free, and these signs must often meet strict requirements. Many retailers fear customer backlash if they post signs either restricting or permitting gun carry in their stores. So, they are inclined to stick with a state’s default rule regardless of their preferences.

If this idea sounds familiar it’s because New York Gov. Kathy Hochul has decided to implement this idea, at least when it comes to businesses, as part of plan to defy the Supreme Court and make it as difficult as possible for New Yorkers to exercise their right to armed self-defense in public.

There are two big problems with Ayers idea; one constitutional and one practical. As Ayers himself notes, every state in the union says that if you want to ban guns from commercial properties you can do so, but you must provide notice to the public in some form or fashion. 47 out of 50 states take the same view when it comes to non-commercial private property. These laws are widespread and longstanding, and there is nothing in the history or tradition of the right to keep and bear arms that supports what Ayers (and Hochul) are demanding. Given the negative implications that these policies would have on the right of the people to bear arms for self-defense in public and the fact that they have no similar analogues in American history, I don’t think there’s any way that they would be upheld by the Supreme Court.

From a practical perspective the idea is just as flawed. Ayers acknowledges that “it is hard for a property owner to know that she needs to object when the objectionable firearm is concealed,” and that wouldn’t change if all privately-owned spaces become gun-free zones by default. It would be just as difficult to determine if someone was carrying in violation of the law, but we’d also likely see far more individuals inadvertently doing so because of the reversal of the longstanding status quo. Ayers idea wouldn’t stop a single violent criminal, but would turn a lot of otherwise law-abiding citizens into accidental outlaws because they would no longer be able to legally carry in most of the places where they’ve been able to exercise their right to bear arms in the past.

Part of Ayers’ problem is that he, like many other gun control fans, still just doesn’t want to accept that the right to keep and bear arms is a real right. In his piece at The Hill, the Yale professor claims that the Second Amendment is about “individuals’ ability to defend their homes by arming themselves.” That is simply not true. The right to keep and bear arms is fundamentally about protecting yourself, not your property, and as the Supreme Court made clear last week, the right of self-defense doesn’t stop once you set foot outside your front door. If private property owners want to ban lawful carrying on their premises they can do so, but in a country with a right to keep and bear arms, the default position has historically respected that right and must continue to do so in the future.

‘unauthorized’… My foot.

Massive Trove of Gun Owners’ Private Information Leaked by California Attorney General

California gun owners have been put at risk by the Attorney General’s office after a new dashboard leaked their personal information.

The California Department of Justice’s 2022 Firearms Dashboard Portal went live on Monday with publicly-accessible files that include identifying information for those who have concealed carry permits. The leaked information includes the person’s full name, race, home address, date of birth, and date their permit was issued. The data also shows the type of permit issued, indicating if the permit holder is a member of law enforcement or a judge.

The Reload reviewed a copy of the Lost Angeles County database and found 244 judge permits listed in the database. The files included the home addresses, full names, and dates of birth for all of them. The same was true for seven custodial officers, 63 people with a place of employment permit, and 420 reserve officers.

2,891 people in Los Angeles County with standard licenses also had their information compromised by the leak, though the database appears to include some duplicate entries as well.

A video reviewed by The Reload shows the databases with detailed information were initially available for download via a button on the website’s mapping feature. They appeared to have been removed from public access by Tuesday afternoon and replaced with spreadsheets without the individualized identifying information.

The office of Attorney General Rob Bonta (D.) confirmed private information had been exposed and said they are examining the situation.

“We are investigating an exposure of individuals’ personal information connected to the DOJ Firearms Dashboard,” a spokesperson for the office told The Reload. “Any unauthorized release of personal information is unacceptable. We are working swiftly to address this situation and will provide additional information as soon as possible.”

The California Rifle & Pistol Association (CRPA) slammed the leak and said it was looking into potential legal action against the state.

“Vindictive sore loser bureaucrats have endangered people’s lives and invited conflict by illegally releasing confidential private information,” Chuck Michel, CRPA President, told The Reload. “CRPA is working with several legislators and sheriffs to determine the extent of the damage caused by DOJ’s doxing of law abiding gun owners. Litigation is likely.”

The Reload is not publishing the leaked data in order to protect the privacy of those affected by the leaks. However, posts across social media indicate many others were able to obtain the documents during the time they were live on the state’s website. There are also several social media posts that indicate similar identifying information from the state’s dealer record of sales database and its “assault weapons” registry were part of the leak, though The Reload was unable to review copies of those databases.

The leak comes just over a year after California moved to provide detailed personal information of all gun owners in the state to educational institutions across the country despite objections over concerns about data security and individual privacy. It also comes as a similar policy to California’s restrictive gun carry law was invalidated by the Supreme Court, which will likely result in many more Californians being added to the same database the state just leaked.

In a press release announcing the leaky dashboard, Bonta said the goal was “increasing public trust between law enforcement and the communities we serve.” He said the dashboard was about ensuring transparency to “better understand the role and potential dangers of firearms.”

Instead, the leaked private information of gun owners is likely to increase the risk criminals will target their homes for burglaries–something the state’s dashboard reports happened 145,377 times in 2020 alone.

One Unconstitutional Law Implicates Many Gun-Control Regulations

Laws can be interpreted many ways. We seek guidance from the court to know what is legal and what is not. The US Supreme Court has largely ignored the right to bear arms compared to the number of decisions the court has rendered in other areas. We don’t have enough decisions to draw a clear map of where our rights begin and end. The court recently issued an opinion on the right to bear arms in public. This case redefined the legal landscape and gave us a few rules to go by. Let’s look at the unanswered questions to see if we may draw further conclusions.

The recent ruling said that states may require carry permits, but they must issue them to ordinary people who are not criminals. Ordinary people must be able to carry a personal firearm in ordinary places where people congregate. Licensing cannot be excessively delayed or expensive.

Now we want to apply this ruling to other situations. We first look to the text of the Bill of Rights. Based on the text, are the actions in question covered by the Second Amendment. When in doubt as to the scope or applicability, we then consider the history of use when the Bill of Rights was ratified. We are to draw analogies from that period to the present day.

There are no tiered level of examination or scrutiny. If the law in question materially limits the right to bear arms then, with remarkably few exceptions, the law is an infringement on the right to bear arms and unconstitutional.

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Former Idaho AG doesn’t know how rights work

When something is your right, it means it cannot just be taken away. Not unless you break the law and your rights are removed as punishment. If something can be taken, it is a privilege, and privileges can be removed anytime if whoever grants them decides to stop granting them.

This isn’t exactly high-level constitutional law stuff, either. This is a basic understanding the Founding Fathers had from the get-go. It’s why they fought a war against the most powerful nation on Earth. Having their rights respected was worth the risk.

Yet, for former Idaho Attorney General Jim Jones, rights don’t really work like that, apparently. That’s based on his writing over at The Hill.

Two groups of conservatives made contradictory decisions last week on whether there should be a balance between the safety of the American public and the rights of a small, but very vocal, minority. A group of 15 Senate Republicans broke with their party and voted for a modest gun safety bill. At the same time, the GOP-appointed majority on the U.S. Supreme Court made sure that there will be more guns in public places. The Senate’s action will save lives; the court’s action will likely add to the tally of gun deaths.

The six Republican-appointed members of the Supreme Court struck down a century-old New York law requiring a showing of “proper cause” to obtain a license to carry a concealed handgun. Although the ruling was an immediate blow to public safety, the longer-term effect of the decision will pose an even greater safety threat.

The court departed from a consensus view developed by lower courts over the last decade that allowed gun rights to be limited by concerns over public safety. Instead, it focused the inquiry solely on whether a restriction is based on “history or tradition.” If a similar historical analogue for a gun limitation cannot be found, it may well be unconstitutional, without regard to the effect on public safety.…

More than anything else, our governmental entities and public servants must understand that private rights ought to give way to the public good. We don’t believe a person’s First Amendment rights extend to falsely yelling “fire” in a crowded theater. Second Amendment rights must also yield when they infringe upon the paramount right of the people to be safe in public places.

Uh…no.

Not only no, but hell no.

Of course, Jones invokes the old canard of yelling fire in a crowded theater, as most who try to justify an infringement on our gun rights tend to do, but you’d think a former attorney general would understand that this was a hypothetical presented by a justice during a case and that decision was ultimately overturned in part by Brandenberg v. Ohio. That case found that speech could only be regulated if it were likely to cause imminent lawless action.

Plus, let’s understand that if we take Jones’s word that private rights ought to give way to the public good, then the question becomes, where do we draw the line? It’s clear that Jones favors restricting our right to keep and bear arms as a means of trying to ensure public safety, but what else is on the table?

Can we seize his home so we can house the homeless? Can we seize his car so it can be used for public transportation? Can we lock Jones in chains and make him do road work for no reason other than we simply need the road to be built?

Where would such a line be?

The problem here is that the line would be subjective. What’s “far enough” for Jones wouldn’t be far enough for someone else. There are those who actually do support things not unlike the examples mentioned above, after all.

The way you deal with this is to draw a line with objective criteria. These are your personal rights, and they shouldn’t be infringed upon simply because someone thinks it’s good for the public. The truth is, the smallest minority is the individual. Empower them, and everyone is equally empowered.

Our gun rights aren’t up for debate. First of all, we don’t buy the idea that gun control yields any of the benefits Jones seems to believe. Yet even if we did, rights don’t work that way.

 And thank God for that.

Comment O’ The Day

“If rights are this absolute, however, then we cannot afford to recognize very many if government is to function.”

Now, that’s hardly true, or rather, it depends on the nature of the rights, and what you mean by government “functioning”.

For instance, for most of the nation’s history we got by with essentially zero in the way of regulation of what sorts of guns one could own. They were still selling anti-material rifles mail order when I was a child! People brought guns on airliners, and I mean in their carry on bags. You could send your minor children to buy ammo at the corner hardware store. And yet, we somehow had a government. That’s how much of a right to keep and bear arms still permitted a government to function.

We also survived having basically nothing in the way of drug laws for most of our history. Coca Cola had cocaine in it! And yet, we somehow had a government. You could have a right to ingest anything you damned well pleased, and still have a functioning government.

When you get down to it, for most of the nation’s history we had Grover Norquist’s ideal government: Small enough you could have drowned it in a bathtub. I think people generally don’t understand that: The amount of government we had for most of our history would be dismissed as anarchy today, and things worked.

Barnett has internalized the legitimacy of a degree of government intrusion on our lives that would have completely horrified Americans for the majority of our history.

Preliminary Thoughts on NYSRPA v. Bruen
A minor impact on gun laws but a potentially momentous shift in constitutional method

My contribution to a symposium on New York State Rifle & Pistol Association v. Bruen is now up on SCOTUSBlog. It is pithily entitled: A minor impact on gun laws but a potentially momentous shift in constitutional method. In it, I describe the extensive “shall issue” process I underwent to obtain my concealed carry license in DC for the many who have no idea what this process entails.

I had to pay an application fee of $75. I had to submit my application in person at the Metropolitan Police Department headquarters and be photographed and fingerprinted at an additional cost of $35. I had to pass a federal background check. I had to enroll in and pay for an approved firearms training course, which included 16 hours of classroom study of D.C. gun laws as well as the law governing the use of deadly force, plus another two hours of range instruction. In 2018, the course cost $250 plus $20 for the range fee. The monetary cost of the license amounted to $380. This was in addition to the $125 tax I paid to D.C. on the purchase of my handgun, which brought the total regulatory cost to $505. Since the course took 18 hours to complete, I took it on a Saturday and a Sunday so as not to lose two days of work.

There being no gun ranges in the District of Columbia, my course was taught in Virginia. The instructor was African American, and most of the other students in the course were members of underrepresented groups, which is unsurprising given the demographics of D.C. Since it is doubtful that any other Georgetown professor has a concealed-carry license, I suppose I too was a member of an underrepresented group.

Every two years, I must renew the license. If I miss renewing within the 30-day window before my permit expires, I have to start all over. So, two years later, I had to pay another $75 fee and complete a recertification class consisting of four hours of training, and two hours of range training from an MPD-certified firearms training instructor, which cost $160. I can afford all this, of course, though I cannot say the same for all other citizens of D.C.

This is the type of regulatory regime that, in Bruen, the court said it was not questioning: “[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.”

I then discuss my effort to understand Justice Thomas’s “text and history” alternative to the “tiers of scrutiny” doctrine that has dominated constitutional law since the 1950s. I explain why am still not sure I completely understand how it is supposed to work. The essay is long and I cannot truly summarize it my uncertainties and reservations, so you may wish to click through to read it here. Here is a taste:

There is, however, an even more fundamental question raised by Thomas’ text-and-history approach. It seems to assume that, once we use history to identify the “outer contours” of a constitutional right, then any such right bars not only prohibitions on its exercise but also trumps any statutory regulation of it. Prior to the New Deal, however, rights were not viewed as trumps on the regulatory power of government. Instead, the existence of a right barred the complete deprivation of it — that is, a prohibition — and statutes were “strictly” or “equitably” construed to avoid this result. And the existence of a right also required that a regulation be within the power of a legislature to enact. At the federal level, this meant a power delegated to Congress by the Constitution. At the state  level, this meant what is called the state’s “police power.” While broad, the state police power was not unlimited….

Thomas seems to want to limit the original scope of a constitutional right by his historical inquiry. And then the right, so limited, may not be restricted in any way. If rights are this absolute, however, then we cannot afford to recognize very many if government is to function. This would explain Thomas’ apparent movement toward an “enumerated rights only” view of constitutional rights (though he has not yet committed himself to this view). But viewing rights as absolute in this way is quite modern and ahistorical, and its invocation in a purportedly originalist opinion is therefore surprising.

I do conclude with a tentatively proposed alternative:

Perhaps a better approach would have been to distinguish between prohibiting and regulating the exercise of a right. Any prohibition of the exercise of a constitutional right is per se unconstitutional. In contrast, a regulation of how a right may be exercised is permissible, provided the ends of such a regulation are within the legislative power of Congress or a state.

Under this distinction, because the “special need for self-protection” that was required by the New York system was “distinguishable from that of the general community,” the law amounted to a prohibition on ordinary citizens exercising their constitutional right to bear arms outside the home. Not only was this the scheme’s effect; it was also its intention.

By contrast, D.C.’s “shall issue” regime provides a means by which every “law-abiding” (per the background check) citizen of D.C. can obtain a permit, so it is not a prohibition of the exercise of a constitutional right. Unlike the New York law, it is a “regulation” because it proscribes the manner of exercising the right.

It may not always be easy to distinguish a prohibition of a right from a mere regulation of its exercise. For example, is a ban on a particular class of firearms a prohibition or merely a regulation of the manner by which the right to keep and bear arms may be exercised? However, at the extremes it can be quite obvious, as I think it is with New York’s law and the D.C. and Chicago gun bans the court held to be unconstitutional in Heller and McDonald v. City of Chicago. (Even after Heller, D.C. still regulates the types of firearms that can be kept in the home or carried concealed outside.)

Rather than use modern tiers of scrutiny, when considering the appropriate regulation of constitutional rights, we should look instead to the type of eyes-open arbitrariness or rationality review that preceded the adoption of modern tiers of scrutiny. This is not, I should stress, the same as the modern eyes-closed rational basis scrutiny, which the court today considers its default approach under its tiers-of-scrutiny doctrine. (See Dobbs. “A law regulating abortion, like other health and welfare laws, … must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”)

I put the sentence above in bold because I realize how prohibitions can be characterized as regulations and vice versa. But at the extremes there is surely a difference between telling someone they cannot do something and telling them how they must do it.

Such are my preliminary thoughts on the reasoning of Bruen, whose outcome I applaud. I look forward to benefiting from the thoughts of others about the text and history approach before reaching any final verdict on its merits.

NYC gun owners celebrate Supreme Court ruling on concealed-carry

The phone has been ringing nonstop at John Deloca’s shooting range since the moment the Supreme Court ruling was announced.

Deloca, who owns the Seneca Sporting Range in Ridgewood, Queens, teaches classes that help people get New York City gun licenses and permits. The ruling may mean that New York concealed-carry permits – until now granted only to those who could prove they needed one for self defense – will now be more broadly available.

Suddenly, everyone seemed to want one.

“I go, ‘Don’t even apply. You can’t apply right now,’” Deloca said, noting that city and state leaders will likely need to work out many legal questions before the NYPD starts issuing revised concealed carry permits. “They don’t even know what’s going on.”

Guns on display at the Seneca Sporting Range in Ridgewood Queens.
Guns on display at the Seneca Sporting Range in Ridgewood Queens.

CS MUNCY / GOTHAMIST

Across the city, many gun owners celebrated the Supreme Court order, which offers broad new protections to New Yorkers and their Second Amendment rights. But their enthusiasm was tempered with caution — both around a proliferation of guns as well as lawmakers’ attempts to limit the effects of the ruling.

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Sununu Signs Controversial Firearms Bill Into Law

In the press release Gov. Chris Sununu sent out Friday about 36 bills he signed, he added a statement explaining why he signed HB 1178 prohibiting the state from enforcing any federal statute, regulation, or Presidential Executive Order that restricts or regulates the right of the people to keep and bear arms.

 “New Hampshire has a proud tradition of responsible firearms stewardship, and I’ve long said that I’m not looking to make any changes to our laws,” Sununu said. “This bill will ensure that New Hampshire’s law enforcement efforts will be on our own State firearms laws – and that’s where I believe their focus should be.”

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NSSF STATEMENT ON THE BIPARTISAN SAFER COMMUNITIES ACT

NEWTOWN, Conn.— NSSF®, the firearm industry trade association, has carefully examined the proposed Bipartisan Safer Communities Act legislation. NSSF appreciates the good faith effort by U.S. Senate negotiators to arrive at a proposal that would meaningfully address criminal violence all too frequently occurring in our communities. NSSF is encouraged by portions of the proposal, but we have important concerns about other aspects of the bill that impact our industry and the Second Amendment rights of law-abiding Americans.

We are thankful the Senate proposal provides significant resources for mental health treatment and services. Most of the horrendous tragedies that have befallen our communities have involved unaddressed mental health issues. We are also heartened the proposal provides necessary resources to help enhance school security to help protect the most vulnerable.

NSSF supports the effort to strengthen federal criminal law to address straw purchasing and firearms trafficking. We have led the effort to stop the illegal straw purchasing firearms and trafficking. For over two decades, NSSF has partnered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the Don’t Lie for the Other GuyTM campaign that helps educate retailers on how to detect and prevent such transactions and to educate the public that it is a serious crime.

Through our #FixNICS® initiative and support for the Cornyn-Murphy bipartisan FixNICS Act named after our program, NSSF has been the leading voice working to ensure our background check system provides timely and accurate information to retailers to ensure they do not sell firearms to prohibited persons. We strongly encourage all states to provide disqualifying juvenile records into the system so that it works as intended.

We support requiring those who are in the business of selling firearms for profit be licensed under federal law. However, the proposed legislation fails to provide clear and needed guidance to our industry – particularly those who would be newly licensed – as to what conduct constitutes a willful violation warranting a revocation of their license. This is especially important given the Department of Justice’s “zero tolerance” policy and the over 500 percent increase in license revocation proceedings that have occurred under this administration.

While NSSF understands the need for law enforcement to intervene in circumstances when someone is an imminent threat to themselves or others, we have steadfastly maintained that if that intervention involves removing a person’s firearms there must be strong Due Process protections in place. Current “extreme risk protective orders” that exist in 19 states do not come close to providing adequate due process protections when the government deprives someone of their fundamental Constitutional rights. We cannot support the use of taxpayer funds to implement more such unconstitutional laws without specific and iron clad assurances Due Process rights will be protected.

“There are several provisions of this legislative package that NSSF could support including providing more resources for mental health services and school security. However, the ambiguity over state records, the lack of clear definitions, and unaddressed due process concerns prevent us from supporting this legislative package as presented,” said Joseph Bartozzi, NSSF President and Chief Executive Officer.

NSSF encourages the Senate to continue its negotiations to arrive at a package that will provide real solutions to make our communities safer.

Well, the Senate passed it with 15 Republican stunnedtaters voting for it.

Senate easily passes bipartisan gun control bill, sending it to the House

The US Senate approved a historic bipartisan gun control bill Thursday night following two recent horrific mass shootings, marking the most comprehensive piece of gun reform legislation passed by federal lawmakers in nearly three decades.

The $13 billion measure was approved 65-33 and received enough Republican support to avoid a filibuster, a compromise that seemed far-fetched before a pair of 18-year-old gunmen used assault weapons to commit mass shootings at an elementary school in Uvalde, Texas and a Buffalo grocery store last month.

The rampages spurred weeks of closed door negotiations between a group of Democrats and Republicans, and 15 GOP senators ultimately crossed party lines to support the bill.

The measure toughens background checks for gun buyers under 21 and provides financial incentives for states to create mental health programs and implement “red flag” laws that would keep weapons out of the hands of criminals and the mentally ill.

It also cracks down on straw purchases of weapons, and closes the “boyfriend loophole” by banning people convicted of domestic abuse from owning a gun. The current law does not apply to abusers who are no longer married or living with their partner.

The bill was the strongest piece of gun legislation since the 1994 assault weapons ban, which expired ten years later. There were five active shooter situations in the US in 2004 compared to 61 last year, according to the FBI.

Democrats had sought much stricter restrictions, including an outright ban on assault rifles and requiring people to be 21 before they can buy semi-automatic weapons, however the once unthinkable bipartisan compromise was hailed by lawmakers in both parties as a clear message to the American people.

“This is not a cure-all for the all the ways gun violence affects our nation,” said Senate Majority Leader Chuck Schumer. “But it is a long overdue step in the right direction. Passing this gun safety bill is truly significant, and it’s going to save lives,” the New York Democrat said.

Senate Minority Leader Mitch McConnell acknowledged the Second Amendment rights prioritized by much of his base while touting the bill.

The bill is the most comprehensive piece of gun reform legislation passed by federal lawmakers in nearly three decades.

“The American people want their constitutional rights protected and their kids to be safe in school,” the Kentucky Republican said. “They want both of those things at once, and that is just what the bill before the Senate will have accomplished.”

Texas Republican John Cornyn and Connecticut Democrat Chris Murphy were among four lawmakers instrumental in hashing out the bill.

“I don’t believe in doing nothing in the face of what we saw in Uvalde,” Cornyn said.

Murphy referenced the 2012 Sandy Hook Elementary School massacre, which failed to prompt meaningful legislation in Washington.

He said Thursday’s bill would save thousands of lives and “prove to a weary American public that democracy is not so broken that it is unable to rise to the moment.”

The legislation is likely to face stronger Republican opposition in the House, where Republican Whip Steve Scalise called the bill “an effort to slowly chip away at law-abiding citizens’ 2nd Amendment rights.”

House Speaker Nancy Pelosi, a Democrat, said her legislative body would move quickly to advance the measure.

“First thing tomorrow morning, the Rules Committee will meet to advance this life-saving legislation to the Floor,” she said.

If passed, the bill would be sent to the White House.

“Our kids in schools and our communities will be safer because of this legislation. I call on Congress to finish the job and get this bill to my desk,” President Joe Biden said.

The National Rifle Association, a powerful gun lobby, had said the bill “falls short on every level.”

“This legislation can be abused to restrict lawful gun purchases, infringe upon the rights of law-abiding Americans and use federal dollars to fund gun control measures being adopted by state and local politicians,” it said in a statement Tuesday.

The measure passed in the Senate on the same day the Supreme Court struck down restrictions on the carrying of concealed firearms as unconstitutional.