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.

1, shot 15 times and the other 5 times. Talk to me about magazine size restrictions, and I’ll rub your nose in this one.

2 Suspects Fatally Shot During Home Invasion In South Philadelphia

PHILADELPHIA (CBS) — An apparent home invasion turned deadly in South Philadelphia. Police say two men who were trying to break into a home on the 1600 block of South 10th Street were shot and killed by two men inside the house.

Officials were on the scene for hours as they worked to determine what exactly happened and why.

A home invasion turned deadly Monday afternoon, turning this residential street into a crime scene.

“At first, I thought it was a woman and there were two intruders that were going to rob her, but now, I have no idea what really happened,” a neighbor said.

As details emerged, police say it was two men who lived at the home who shot two others who tried to force their way in.

The brazen break-in unfolded on the 1600 block of South 10th Street around 1:30 p.m. Monday afternoon.

“I’m thinking maybe it’s time to move out. For something like this to happen in the middle of the afternoon, it’s like — I heard it was a robbery — if that’s the true story or not, I’m not sure but it’s tough to take,” Mary Grace McHale said.

The two suspects died at Jefferson University Hospital. A 33-year- old was shot 15 times while the other man — between 25 and 30 years old — was shot five times. Officers found both men unresponsive inside the home.

“Shocking. Like I was saying, you don’t expect something like this in your own neighborhood. You see it on the news all the time, unfortunately, and this is really something out of the ordinary for this area,” John Caruzzo said.

Caruzzo joined others in South Philadelphia peering down the street in disbelief. He watched as investigators went in and out of the house, blocking both pedestrian and vehicle traffic.

“It makes you feel uneasy. Like you think that this can’t happen until you walk outside and hear about it and then you see up live and in person and you think, ‘my God, it’s a block from your house. How could this possibly happen?’ But it does,” Carrozza said.

The alleged intrusion prompted some to think about protecting themselves.

“Maybe I should go buy a gun,” McHale said.

BLUF
They could have taken their victories and shut up, but they couldn’t. They had to push and push and push and push until they finally ended up in court. They can’t stop because their rage comes from the vast, burning nihilistic emptiness inside them that no amount of expanded abortion rights or “pride” months or drag queen story hours or transgressive love stories in Disney cartoons can ever satisfy.

….in the end, that’s what they really want. An end to their restlessness and their war against their own savage gods. All we want, by contrast, is to be left alone with a culture we love and prize and wish to pass on to our children. But they want to take us with them because, as we all know, misery loves company. Either we’ll learn to care, or they’ll die trying. Because in their world, right now, everything’s coming up guns and Roeses, and they can’t have that, not now, not ever.

Guns N’ Roeses.

It has long been a dictum of mine that, as far as the progressive Left is concerned, “they never stop, they never sleep, they never quit.” After their twin defeats at the Supreme Court last week, regarding two of their most sensitive issues (both of which derive from their devotion to cultural suicide, which is their principal objective), don’t expect them to give up easily. They subscribe to their version of Islamism or the Brezhnev Doctrine: once they’ve conquered moral or physical tparerritory, it can never go back to the way it was. They see themselves as the heroes of their own movies, good red-diaper babies constantly battling the forces of revanchism and irrendentism, which are you. The idea that they’re the bad guy never occurs to them:

These are, after all, the same people who refused to accept George W. Bush’s narrow presidential victory in 2000 (“selected, not elected”); refused to accept Bush’s win over John Kerry in 2004; rained hellfire and brimstone down on poor Sarah Palin, whose only crime was a surfeit of motherhood, and snarlingly turned on her running mate and their erstwhile favorite maverick, John McCain in 2008; and went bonkers over the surprise victory of Donald Trump in 2016, thus triggering the entire “Russian collusion” hoax that started with Hillary Clinton and eventually came to embrace the FBI, the intelligence community, the media, and the judicial system.

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Why the abortion hysteria?

The extent to which liberals have gone bananas over the Dobbs case is a phenomenon that demands explanation. Most liberals, after all, understand that the Court has not banned abortion, or in fact placed any limits on it whatsoever. It has simply remitted the issue of abortion to the political sphere where it was prior to 1973, and where it always has belonged, thus ending a half century of usurpation by the Court.

Moreover, abortion laws in the U.S. have been extremely liberal compared with most countries–almost every country other than North Korea, in fact. This chart shows in striking fashion how liberal our laws have been compared with Europe’s:

One of the many ironies of post-Dobbs hysteria was French President Emmanuel Macron denouncing the decision, even though the Mississippi statute that the Court upheld was more permissive, more liberal, than France’s own abortion law.

Most liberals no doubt understand that they now will have to take their case to the voters, and that when the dust settles, American abortion laws will look pretty much like Europe’s. And some states will be extremely permissive–New York, for one, may legalize infanticide, which the states are perfectly free to do. So, once again–why the hysteria?

I think several elements are at work here, but the most basic is that liberals (Democrats) do not want to take the issue of abortion to the voters. They do not want to have to make their case. They do not want to have to argue and persuade. Rather, they want all views opposed to their own to be banned and unheard. Delegitimized.

This is perhaps the dominant fact of 21st Century politics. Liberals don’t want to debate, they don’t want to persuade. They want to censor. They want some higher authority, whether the Supreme Court, Twitter, or corporate America, to declare all views but theirs out of bounds. They don’t want to participate in democratic politics, they want to rule by fiat. For all their wailing about “our democracy,” the last thing liberals want is the actual give and take of a democracy, which usually entails compromise.

I think that is the key reason for the Left’s hysteria over Dobbs. For liberals, having to argue, to persuade, to run for office, to participate in the messy work of democracy where you don’t always win, is a step backward. They had everything going their way, and now…this.

Viewed in that light, I think the demonstrations, insurrections, encouragement of assassination of Supreme Court Justices, and arson at Christian maternity centers are understandable.

Dër Grëtchënführër™ apparently feels she hasn’t been paid as much attention as her ego requires

Democrat Governor Gretchen Whitmer Does Not Condemn Leftist Violence When Asked About Threats In Michigan.

WATCH:

Whitmer made the remarks during an interview on CBS News’ “Face the Nation” with host Margaret Brennan as the topic of the U.S. Supreme Court overturning Roe v. Wade dominated the segment.

“I want to ask you about this homeland security warning that domestic violent extremists may intensify violence,” Brennan said. “In the bulletin that CBS obtained, it specifically mentioned an incident in Michigan, related to a pro-abortion rights group.”

One of the incidents mentioned in the memo “involved vandalism claimed by ‘Jane’s Revenge,’” a far-Left group, “on a building that houses a U.S. Representative’s campaign office and a pro-life advocacy group.”

“How concerned are you about violence?” Brennan asked. “What are you seeing on the ground?”

“I am concerned about a lot of things happening in the United States right now,” Whitmer said. “And frankly, the last couple of decisions that came out of this United States Supreme Court are make America a lot more dangerous, more guns, fewer rights, less health care, it is scary. And as a lawyer it, it crushes me to say that even I am losing faith that these important institutions that are supposed to be above the politics of the day, are now being corrupted. And that’s what we’re seeing out of our United States Supreme Court. And I am very concerned about our long term prosperity, our homeland security, and our safety.”

Brennan again had to press Whitmer on the matter since Whitmer did not address the question.

“But, this warning about threats to federal [and] state government officials, including judges, are you concerned about active threats in Michigan?” Brennan asked.

“Of course, I am,” Whitmer claimed before she pivoted to blaming former President Donald Trump. “I have been the recipient of so much ugliness and hate often stoked by the former president. This is a really scary moment. And with the proliferation of the ugly rhetoric, the scary proliferation of guns in America and fewer and fewer restrictions. I think that any parent who sends their child to school, any politician or policy maker who makes a hard decision, we now have to be much more fearful on a whole new level.”

Arizona homeowner fatally shoots 2 intruders

A Phoenix, Arizona homeowner shot and killed two men who were attempting to break into the home Saturday morning, police said, according to reports.

When police arrived before 8 a.m. in response to several 911 calls, officers found the two alleged intruders on the ground in front of the home.

“Witnesses told the officers the shooter was inside the home next to where the men were lying,” Sgt. Philip Krynsky told FOX 10 Phoenix.

“The officers were able to successfully carry the men to await paramedics. The officers were able to communicate with the three occupants of the home and they were detained peacefully.”

The two alleged intruders were transported to separate hospitals, where they succumbed to their injuries.

Police said the people detained in connection to the shooting gave consistent stories of self-defense over the alleged attempted break-in.
The men, believed to be in their 20s, have not yet been identified.

Krynsky explained that the people detained in connection to the shooting gave consistent stories of self-defense during the investigation into the incident.

“In consultation with the Maricopa County Attorney’s Office, the suspects [suspects? SUSPECTS?? VICTIMS!!] were released, and charges will be submitted for review,” Krynsky said.

Got a cousin who lives there.

Christian pregnancy center in Colorado vandalized and burned following Roe v. Wade reversal

A Colorado Christian crisis center for pregnant women was vandalized and set on fire Saturday morning, a day after the US Supreme Court reversed federal protection of abortions.

Police responded to a fire at Life Choices in Longmont around 3:20 a.m., and found the building ablaze with covered with graffiti messages referencing the controversial overturning of Roe v. Wade, officials said.

“If abortions aren’t safe neither are you,” one message read, accompanied by the circled “A” anarchy symbol.

The saying has been written at dozens of pro-life centers since the court’s intent to overturn the 1973 ruling was leaked in May.

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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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