I Have Something Good To Say About Carly Fiorina

I'm pretty sure that this is a battlefield conversion on Fiorina's part, and may not stick, but Senator Boxer has made it very clear where she stands.  From the June 29, 2010 San Jose Mercury-News:

Republican Senate Candidate Carly Fiorina said Tuesday that she opposes a ban on assault weapons and supports a U.S. Supreme Court decision this week affirming a Constitutional Right to Bear Arms. In a 45-minute question-and-answer session with reporters here, the former Hewlett-Packard CEO also repeated her backing of Arizona's Controversial Immigration law and said she would support efforts to Repeal the Federal Health Care reform measure.

McDonald v. Chicago Wasn't The Only Case Sent Back For Retrial

Snowflakes in Hell noticed that the nunchaku possession case from New York was ordered retried in light of the McDonald decision.  Now, I don't much care about nunchakus, but they are certainly "arms," within the meaning of the Second Amendment.  Yes, I wouldn't want criminals carrying them around--but I don't see any strong case for why banning nunchakus makes any great sense for the law-abiding.  A co-worker in California mentioned to me one that her husband often carried them when out running, to defend himself from dogs--and she was shocked to find out that possessing them (even in your home) there was a misdemeanor punishable by up to a year in jail or prison.  There's an exemption for martial arts studios, but for the average person?  It's more serious than carrying a gun without a permit.

Victory! And Justice Alito Cited One Of My Law Reviews

The Supreme Court has handed down its decision, McDonald v. Chicago (2010).  As expected, the Court ruled that the Second Amendment is incorporated through the "due process" clause of the Fourteenth Amendment against state and local governments, because the Second Amendment is a fundamental human right.  Justice Thomas's concurrence argues that "privileges or immunities" is the more correct approach.

I am glad to see the law review paper by myself, Nicholas Johnson, and George Mocsary, "'This Right is Not Allowed by Governments That Are Afraid of The People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified" cited by Justice Alito, in several places--and there are primary sources cited elsewhere in Alito's opinion that I am quite sure come out of that same law review.

I was amused to see even Justice Breyer's dissent citing my book Concealed Weapon Laws of the Early Republic.

Those of you who live in California, New York, Massachusetts, and some of the other gun-hostile states owe me one!  You can expect to see the most outrageous of the gun control laws in those states under fierce attack.  Once something is elevated to the status of a fundamental human right, it is not enough for the legislature to say, "We think this law is a good idea," or "We think this law will save lives."  Fundamental human right implies that at least intermediate scrutiny, and more likely, strict scrutiny, will be applied to such laws.

A Hint About Open Carry In Cities

Either be dressed like you are going to or from a hunting trip, or be dressed well enough that someone wouldn't mistake you for a ne'er-do-well.  Someone I know was in an Albertson's supermarket in Nampa the other night about 10:45 PM, and a guy walked in dressed rather shabbily--but with a large holstered handgun.   The manager of the store approached him and told him to leave, which he did.

I know that some people really think that everyone else should just "get over it" and not react negatively to openly displayed guns.  Yes, just like people need to just "get over it" when they react poorly to guys French kissing in public, or people urinating in public on the sidewalk.  Think about the consequences of what you do--and ask yourself if you are doing more good or harm.

There are situations where it may make perfect sense to carry openly in a city.  Perhaps you didn't have the foresight to get a concealed handgun permit, and you have good reason to believe that you are at risk.  Perhaps you are between 18 and 21, and can't get a concealed handgun permit.  Perhaps you live in one of those benighted states that (for a few months longer) either don't issue permits, or make it so hard to get a permit that they are effectively not available.  But if so, dress in a manner such that no one is going to wonder if you are a meth freak suffering a paranoia outbreak.  You might still be asked to leave the store--but there is at least a chance that you will leave a more positive impression of gun owners than if you look like you are about to clear out the entire pseudoephedrine HCl section of the store.

What Chicago Fears When McDonald v. Chicago Comes Down (Another Unsellable Article)

Why does Chicago city government continue to defend its handgun freeze law? What are they afraid is going to happen if they allow law-abiding adults in Chicago to own a handgun? They are terrified of headlines like this: “54 shot in latest violence; 1-year-old girl is youngest victim.” Unfortunately, that’s not what might be the headlines if Chicago has to dismantle its handgun ban; that’s what the headlines are now—even with the handgun freeze in effect.

For the last forty years or so, gun control has been at the forefront of efforts by big city politicians to deal with violent crime—even though it is at best, utterly ineffective, and likely contributes to the code of silence in many ghetto neighborhoods. The law-abiding population is reluctant to testify against gang members for fear of retribution. I am sure that a few of these cowed witnesses might, if they could legally buy a handgun and get a concealed weapon permit, have the courage to testify in open court. But let’s not kid ourselves; if gang members are intent on taking revenge, they are going to kill you, or your children, or your grandchildren. Making guns available to the decent people in ghettos is only going to make a marginal difference with this problem.

No, the real problem is the one that urban politicians refuse to confront: the victimology of ghetto subculture. They refuse to confront it because for all the blame that urban politicians want to put on “the Man,” racism, and capitalism, the biggest problem in most ghettos today is the values of the population. For at least a generation, black students who have done well in school have been accused of “acting white.” This problem hasn’t gone away. What are your job prospects if you have done your best to not do well in school?

This victimology shows up in myriad ways. My son is in college at the moment. In his English composition class, the instructor—an African-American woman—told them that AIDS was invented by the U.S. government to kill off black people. (I guess killing off homosexuals, prostitutes, and hemophiliacs was just a fringe benefit.) Steve Cokely, an aide to Chicago’s mayor some years back, claimed that Jewish doctors were injecting AIDS into black babies. Anything, rather than admit that one of the scourges of the black community was the result of poor lifestyle choices in the black community.

A few years back, I watched a documentary about Watts in which various “community activists” claimed that the handguns that are such a large part of Los Angeles’ violence problem were dropped by police helicopters so that blacks would kill each other. These activists were so intent on portraying all black people as victims that they simply refused to consider the most plausible explanation: there were criminals in their midst who were intentionally going out and buying or stealing guns to use for murder.

Once Chicago’s handgun freeze goes away, the city will pass various registration and licensing measures to discourage handgun ownership—much like Washington, D.C. has done in the aftermath of D.C. v. Heller (2008). Eventually, after enough money has been wasted in court, Chicago will allow its law-abiding citizens to own handguns again. I’m not expecting a dramatic change in the level of violence.


Chicago, however, will be forced to admit that guns are only a symptom—and that they need to start confronting the cultural forces that make parts of the city into war zones. Will urban officials have the courage to admit that the biggest problem that the black ghetto faces today isn’t Klansmen, or institutionalized racism, but a subculture that refuses to look itself in the mirror?

Gun Control: A Very Powerful But Tiny Group

Over at Arms and the Law, Dave Hardy points to an interesting discovery by Joe Huffman: The Brady Campaign for Gun Control has apparently been reduced to selling their membership lists.  Significantly, it's tiny:

50,581 DONORS/MEMBERS (TOTAL FILE)
40,765 DONORS/MEMBERS (24 MOS)
28,417 DONORS/MEMBERS (12 MOS)

...

So, they have about 50K total "donors/members" on their list. If I'm reading the data correctly only about 28K have donated in the last 12 months.

Of course, it's an important 50K members. I am guessing that it is rich in television journalists, tenured faculty, and other members of the self-imagined intellectual elites.

People Who Confuse Guns & Sex

People Who Confuse Guns & Sex

I've never found the anti-gunners "guns are a penis substitute" argument to even rise to the level of worth serious debate.  The most that I will do is make fun of the argument: "Then what does it say about most gun owners that they want the smallest possible handgun?  And what does it say about women gun owners?  For that matter, what does it say about you, wanting to take away our guns?"  But count on Mayor Daley of Chicago to combine vulgarity, sexual innuendo, and perversion in a single sentence.  From the May 20, 2010 Chicago Sun-Times:

Often when Mayor Daley makes the case for what he calls "common sense gun laws," he stands before a table full of guns seized by Chicago Police.

The show-and-tell was the same today, when Daley was asked how effective Chicago's strictest-in-the-nation handgun ban can possibly be when the city's homicide rate is rising and an off-duty Chicago Police officer was gunned down during an attempted robbery.

The mayor picked up a rifle from the table and sarcastically told the Chicago Reader reporter, "If I put this up your butt, you'll find out how effective it is. If we put a round up your, you-know. . . . [Confiscating] this gun saved many lives. It could save your life."

As a commenter over at Arms and the Law observed (sarcastically):

Say what you will about Mayor Daley, he is always a classy guy.

Now Visible To All!

Now Visible To All!

The final published form of my George Mason Law Review paper is now visible. Clayton E. Cramer, Nicholas J. Johnson, and George A. Mocsary, “This Right Is Not Allowed By Governments That Are Afraid Of The People”: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 Geo. Mason L. Rev. 823 (2010).

McDonald v. Chicago Oral Arguments Today

McDonald v. Chicago Oral Arguments Today

The oral arguments were held today. You can read it here. It's pretty clear that "privileges or immunities" isn't going anywhere with the Court--but the Second Amendment is likely to be incorporated through the due process clause instead. From reading the questions, it is pretty clear to me that:

1. A number of the justices recognize that Slaughter-House Cases (1873) was wrongly decided, but are reluctant to overturn all the existing precedents that are derived from that.

2. Even those justices who don't like the Heller decision don't want to rock the boat on due process incorporation, preferring to come up with a narrower definition of the right for the states.

Why? My guess is that the conservative members of the Court recognize that declaring that Slaughter-House was wrongly decided would unleash more lawsuits trying to relitigate questions that have already been decided under due process than there are enough lawyers in America to handle--and in many cases, no net change in result. The liberal members of the Court may be reluctant to challenge incorporation for fear that if a fight turns this into a "P or I" dispute, with the generally more conservative tendency of courts now, a lot of the liberal causes decided under due process reasoning (Roe v. Wade, Lawrence v. Texas, among many) would get relitigated and perhaps not do as well.

The net effect is that Alan Gura did a nice job of defending what I think most justices know is the right argument (PorI), but they are going to incorporate the Second Amendment through the due process clause. Feldman, representing Chicago, presented his case very poorly. Admittedly, he's trying to defend an absurd position.

Justice Breyer, however, when he starts arguing that the Second Amendment should be subject to a less level of protection than freedom of speech because there are human lives involved in contest with an abstract concept of rights--where, exactly, did Justice Breyer go on the abortion cases? Oh yeah, that's right.

The 1849 California Constitutional Convention & The Right To Keep and Bear Arms

The 1849 California Constitutional Convention & The Right To Keep and Bear Arms

Back when I was writing Black Demographic Data, 1790-1860, I spent a lot of time trying to find the 1849 California Constitutional Convention debates. (If that seems a leap--the same guy that got Oregon the add a "no free blacks" provision to the 1857 Oregon Constitution tried, and failed, to get one added to the 1850 California Constitution.) I never could find it--no matter how many dusty library shelves I tried. But now I see by reading the comments over at Arms and the Law that the debates are available online--and there was actually discussion of whether to add a right to keep and bear arms provision. From John Ross Browne, ed., Report of the Debates in the Convention of California on the Formation of the State Constitution... 47:

Mr. Ord offered the following :

Sec. 16. Every person has a right to bear arms for the defence of himself and the State.

Mr. McCarver moved to amend by saying, " provided they are not concealed arms." He did not think, however, that this was a proper subject for the Constitution. No attempt should be made to prevent the Legislature from regulating matters of this kind.

Mr. Sherwood was of the same opinion. To make a positive declaration that a man has not this right would be null and void, inasmuch as it would be in opposition to the Constitution of the United States, which provides that " a well regulated militia, being necessary to the security of a free State, the right oí the people to keep and bear arms, shall not be infringed."

Mr. Botts was surprised that the gentleman from New York (Mr. Sherwood) should object to any provision here, because it was contained in the Constitution of the United States. After taking half-a-dozen provisions from that Constitution, word for word, such an objection came with rather a bad grace. He (Mr. Bolts) would himself prefer having this provision under the legislative head. A bill of rights is a general declaration ; the Constitution is a specific declaration. It is an admitted rule of construction that the bill of rights, or preamble, is of inferior force, and succombs to the Constitution. If there be in the Constitution a clause which conflicts with the bill of rights, the latter falls to the ground. He (Mr. Bolts) desired to see all great principles involving the rights of citizens brought into direct operation in the body of the Constitution. He saw no necessity for mere declarations which could have no force or effect. For this reason he had voted against the subject of monopolies ; and for the same reason he would vote against this.

Mr. Sherwood was not aware of having voted in the bill of rights for any provision which was directly secured to the people of California by the Constitution of the United States. But ¡f he had done so, it was with the good example before him of the gentleman from Monterey, who had voted for a provision in regard to the law of attainder. That provision he would find in the Constitution under the limitation of the powers of Congress. It was introduced here to limit the powers of the Legislature. But Mr. Ord's proposition directly touches the rights of every citizen.

The question was then taken, and both the amendment, and amendment to the amendment, were rejected.

I had always thought that the reason California's Constitution had no right to keep and bear arms was because so many of the early settlers were Iowans--and Iowa's state constitution did not have (and still does not have) a right to keep and bear arms. But apparently it wasn't just an oversight.

It is rather interesting that some delegates argued that it was inappropriate, apparently because it was too broad (and needed to leave authority to the legislature to regulated concealed carry), and others thought that it was superfluous. But it would also appear that some delegates thought it was wrongly placed in a Bill of Rights, and perhaps some felt that the state legislature needed authority to regulate the bearing of arms.

This isn't going to be very useful for those arguing for a right to keep and bear arms under the California Constitution--especially because debates on the 1879 Constitution did not even get around to rejecting such a proposal--but still quite interesting, nonetheless. I suspect that the McDonald decision, when it comes down, is going to make the whole question about a right under the California Constitution moot.

Washington State Supreme Court Incorporates Second Amendment

Washington State Supreme Court Incorporates Second Amendment

Taking a jump on the U.S. Supreme Court, the Supreme Court of the State of Washington has held that the Second Amendment is incorporated against the states, in State v. Sieyes (Wash. 2010). And even better: they cited my book For the Defense of Themselves and the State!

New Law Review Article Up

New Law Review Article Up

David B. Kopel and Clayton E. Cramer, "State Court Standards of Review for the Right to Keep and Bear Arms," Santa Clara Law Review 50, pp. 1-110 (2010) (forthcoming). The abstract:

Abstract:
Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

You can download it from the link above.

Very Nice Ego Stroke

Very Nice Ego Stroke

I did a search for my name through all the briefs filed in the McDonald v. Chicago suit, over at the website that Alan Gura has for it. There were more than a dozen briefs that cited my work--and not just briefs on our side. Even the other side was citing my work! I suppose that I better go back and see if they are accurately citing it.

Astonishing Ruling From Federal Judge Irma Gonzalez

Astonishing Ruling From Federal Judge Irma Gonzalez

Don't get too excited quite yet. The case is Peruta v. San Diego. Peruta is challenging the refusal of the San Diego Sheriff to issue a concealed carry permit. Judge Gonzalez hasn't ruled on that argument yet--but she has rejected Sheriff Gore's initial claims, acknowledging that the Second Amendment protects an individual right, and apparently that because California prohibits open carry, there are limits to the authority of the state to regulate concealed carry. And she even cites such amazing cases as Nunn v. Georgia (1846) in defense of that argument.

More importantly, she acknowledges that this isn't a rational basis question--there's at least intermediate scrutiny as a standard of review involved:

The Equal Protection Clause of the Fourteenth Amendment provides that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citation omitted). “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. at 440 (citations omitted). This general rule gives way, however, where a statute classifies by race, alienage, or national origin, or impinges on personal rights protected by the Constitution. Id. When that is the case, the challenged law is subjected to strict scrutiny and will be upheld only if it is “suitable tailored to serve a compelling state interest.” Id.

This has long been the problem with discretionary concealed weapon permit laws, such as California's--all that discretion inevitably leads to equal protection violations, because sheriffs and police chiefs don't even make a serious attempt at equal protection of the law on permit issuance. (Especially in the counties where big contributions to the sheriff's campaign has an astonishing overlap with permit issuance.)

To paraphrase Winston Churchill: "This is not the end. This is not even the beginning of the end. But it is assuredly the end of the beginning."

Law: The Incredibly Inexact Science

Law: The Incredibly Inexact Science

I'm writing a law review article concerning the standards of review used by state courts with respect to the right to keep and bear arms at the moment. I'm just astonished, as I go back through the stack of decisions that I used for my book For the Defense of Themselves and the State how really astonishingly careless many of these decisions were--from the 19th century, and from the 20th century. It's even worse when you start to look up the precedents that they cite--with no apparent awareness that they are often citing contradictory precedents to prove their point. It isn't at all unusual to find cases that cite one set of decisions to prove that there is no right to concealed carry, and another set of decisions to prove that their is no right to open carry--with no awareness that the "no right to concealed carry" decisions often directly say that concealed carry can be prohibited only if open carry is allowed (or vice versa).

The standard of review aspects are even uglier. A lot of the decisions (especially in the 19th century, but even in the 20th century) do consider the right to keep and bear arms an absolute right--one that cannot be denied in public places. Other decisions use various "balancing of interests" approaches, whereby if some legitimate public purpose is in conflict, such as public safety, then the right can be regulated. But it is astonishing how sloppy many of these decisions are about this. How important does the public interest have to be? I can understand arguments for a variety of approaches, but many of these decisions can't seem to ever quite express what that standard is.

Some argue that the regulation must be "reasonable" without ever giving an example of unreasonable. Some argue that the right can be regulated, but not abolished. My favorite are the decisions of the Tennessee and Arkansas Supreme Courts, which both ruled that the legislature couldn't prohibit carrying pistols--but could require them to be always carried in the hand, at all times. Talk about the most dangerous possible mode of carry!

Guns on Trains

Guns on Trains

Snowflakes in Hell mentions the continuing controversy about allowing passengers to check guns in luggage on Amtrak. You want to know how much the world has changed? See this 1955 I Love Lucy episode, where Lucy discovers that a jewelry salesman on the train from Los Angeles is carrying a gun. Make sure you go up to about 4:20 into this clip, so you can see Lucy and Ricky's discussion--and remember, this is what Hollywood was producing back then!

Interstate Gun Purchases

Interstate Gun Purchases

From December 7, 2009 CBS News:

You can buy a car from an out-of-state dealer and pick it up there. You can buy a house in another part of the country, as speculators unwisely did during the real estate bubble, sight unseen. But even though the Second Amendment protects an individual right to own firearms -- and presumably to buy them -- you can't purchase a handgun while you're visiting another state.

A gun rights group has sued the Justice Department to overturn this prohibition, which became law as part of the Gun Control Act of 1968, and the case is now in front of U.S. District Judge James Robertson in Washington, D.C.

Narrowly speaking, the Second Amendment Foundation has filed the Hodgkins v. Holder suit on behalf of American citizens who live abroad and would like to buy firearms when they return for a visit (but can't because Form 4473 requires them to list what U.S. state they live in). More broadly, it could restore Americans' right to buy handguns while traveling across state lines as long as they undergo the normal federal background check.

This is an interesting question. When the Gun Control Act of 1968 was passed, there was no central repository of information on criminal convictions, mental illness commitments, and other issues that might resolve the question of whether a person could legally buy a gun or not. I can somewhat see why it made sense to limit purchases of firearms to your home state, where presumably police could do a background check (if the state law required it). Today, we have a national background check system that can very quickly figure out if you are a prohibited person. The original justification of limiting purchases to your state of residence really don't make sense anymore.

I Knew California A-G Jerry Brown Was Doing This...

I Knew California A-G Jerry Brown Was Doing This...

but it's still fun to watch the smoke coming out of California gun control ears. From the November 23, 2009 San Francisco Chronicle:

Now, gun advocates are challenging Chicago's handgun ban, asking the Supreme Court to rule that the Second Amendment equally applies to the states. And there was no shortage of states - 34 in all - jumping on the bandwagon in support of the court hearing the case.

In July, before the court agreed to take the case, Brown went so far as to file his own friend-of-the-court brief asking that Chicago's gun ban be overturned - arguing that if the court doesn't act, "California citizens could be deprived of the constitutional right to possess handguns in their homes."

His stance has angered a number of gun control proponents.

Julie Leftwich, legal director of Legal Community Against Violence, said this isn't simply about Brown defending the Second Amendment - it also marks a dramatic turnabout from the administration of his Democratic predecessor, Bill Lockyer, a staunch gun control advocate.

"Jerry Brown hasn't shown leadership in the legislative arena related to the issue of gun violence prevention ... and he hasn't sponsored or weighed in on any significant gun bills," Leftwich told The Chronicle's Carla Marinucci.

I have some mutual acquaintances with Jerry Brown. As I understand it, Brown really isn't really pro-gun--it is just that he is smart enough to recognize that gun control is a distraction from solving the real sources of the violence problem that is destroying black inner cities.

Finishing Final Edits on the Academics for the Second Amendment Amicus Brief

Finishing Final Edits on the Academics for the Second Amendment Amicus Brief

It is, of course, complementary to the briefs filed by other parties, so it's a bit of a struggle to make sure that it stands on its own--but doesn't unnecessarily duplicate what the other parties in McDonald v. Chicago are doing.

In any case, Academics for the Second Amendment has exhausted its treasure chest (in the loosest, smallest definition of "treasure") so if you want to assist with this effort--even just a couple of bucks--go to their blog, and hit the PayPal button on the right side of the screen. Or send a check to:

Academics for the Second Amendment
Post Office Box 131254
St. Paul, MN 55113

Maybe You Don't Care, But This Made My Day

Maybe You Don't Care, But This Made My Day

I received this happy piece of news from SSRN (Social Science Research Network) today:

Dear Clayton E. Cramer:

Your paper entitled, "'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified" was recently listed on SSRN's Top Ten download list for Constitutional Law, Jurisprudence & Legal Philosophy Journals, LSN Subject Matter eJournals, LSN: Rights & Liberties (Topic), LSN: Structure of Government & Political Theory (Topic), LSN: Structure of Government & Political Theory (Topic), Law & Culture, Law & Positive Political Theory, Law & Society Journals, Legal History and Legal Scholarship Network. To view the top ten list for the journal click on its name Constitutional Law, Jurisprudence & Legal Philosophy Journals Top Ten, LSN Subject Matter eJournals Top Ten, LSN: Rights & Liberties (Topic) Top Ten, LSN: Structure of Government & Political Theory (Topic) Top Ten, LSN: Structure of Government & Political Theory (Topic) Top Ten, Law & Culture Top Ten, Law & Positive Political Theory Top Ten, Law & Society Journals Top Ten, Legal History Top Ten and Legal Scholarship Network Top Ten and to view all the papers in the journals click on these links link(s) Constitutional Law, Jurisprudence & Legal Philosophy Journals All Papers, LSN Subject Matter eJournals All Papers, LSN: Rights & Liberties (Topic) All Papers, LSN: Structure of Government & Political Theory (Topic) All Papers, LSN: Structure of Government & Political Theory (Topic) All Papers, Law & Culture All Papers, Law & Positive Political Theory All Papers, Law & Society Journals All Papers, Legal History All Papers and Legal Scholarship Network All Papers.

As of 11/09/2009 your paper has been downloaded 417 times. You may view the abstract and download statistics at the URL: http://papers.ssrn.com/abstract=1491365.