Dave Kopel's Second Amendment Newsletter December 16, 2008

Dave Kopel's Second Amendment Project is based at the Independence Institute, a free-market think tank in Golden, Colorado.

The Independence Institute publishes several newsletters on other topics, plus a weekly newsletter containing our most recent op-eds and news of our activities. E-mail subscription to any of these newsletters is free.

Delivery of this newsletter comes courtesy of the Second Amendment Foundation, in Bellevue, Washington.

Please visit Dave Kopel's website, containing articles on the Second Amendment and other freedom topics.

Table of Contents

  1. New by Kopel: Law Review Articles on Articles on Judge Wilkinson's Criticism of Heller, and Pacifism; Newspaper and Magazine treatments of the Media and Violence, Plaxico Burress, de-facto gun bans, the election, and 'Beware the Rahm!'; Blogs on Eric Holder and the Election; Video and Audio on the surge in firearms sales, the Constitution, and local politics, and... Twitter!
  2. International: Egyptian Gun Law; Mumbai; Irish Semi-Auto Handgun Ban; Israeli NRA; Philippine Militia; Sudanese Gun Control; UK Vulnerability; U.N. Assembly urges Small Arms Treaty
  3. Culture of Safety: Stopping Active Killers; Guns and the NFL; Gun Sales Surge; Students for Concealed Carry on Campus Files Suit
  4. States and Localities: Delaware doing Illegal Background Checks; D.C. and Heller; Winnetka Caves in Illinois; Massachusetts Police Chief Charged; Minnesota Concealed Carry
  5. Federal: Concealed Carry in the National Parks; Eric Holder's 2nd Amendment Record; Chambliss embraces NRA and Wins; Bush Pardons Restore Gun Rights
  6. Law: Supreme Court on Domestic Abuse and Firearms; Extra Sentencing Permissible in NYC; Gun Shows on County Property Suit; No Incorporation in NRA vs. Chicago; NRA and SAF sue Washington State; Suit on Iowa Carry Permits
  7. Research: Post-Heller Rights; Justice Breyer's Dissent; Harvard Law Review and Heller; North Dakota Lead; Mayors Against Illegal Guns Study; NSSF Informational Blog; Opposing Views on Guns
  8. Christmas and Hannukkah! Second Amendment Book Bomb; AmericanSnipers; Rice Writes Again!

New by Kopel

Law Review Articles

Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III.

David B. Kopel with Nelson Lund
Working Paper
December 1, 2008

This is a critique of the 4th Circuit Court of Appeals Judge Wilkinson's Virginia Law Review article asserting that D.C. v. Heller is a 21st century version of Roe v. Wade.

Pacifist-Aggressives vs. the Second Amendment: An Analysis of Modern Philosophies of Compulsory Non-violence

David B. Kopel
Charleston Law Review Vol. 3, No. 1

This is the final version, now available on the web. The article examines the strengths and weaknesses of modern pacifist religious philosophy.

New Newspaper and Magazine Articles

Free Plaxico Burress

David B. Kopel
The Wall Street Journal
December 4, 2008

Dave here raises the civil rights issues involved with the crime with which the New York Giants receiver has been charged.

Poison Pill

Dave Kopel
America's First Freedom
December, 2008
http://davekopel.org/2A/Mags/AFF 1208 Poison Pill.pdf
PDF files require Adobe Acrobat Reader or similar software.

"When banning guns gets tough, finding ways to ban gun owners can accomplish the same end. Take Nassau County, N.Y., for example..."

The Media-Violence Link: New Dutch Study Suggests Newspapers, TV Wise to Show Discretion

Dave Kopel
The Rocky Mountain News
November 29, 2008

A Dutch study found that intensive coverage of soccer hooliganism in the weeks after a it occurred at game seemed to increase the likelihood of violence occurring at future games.

Obama and McCain: Stark Contrast on Gun Rights

David Kopel
The Denver Post
November 3, 2008

The pre-election summary of the two candidates views and past positions upon the 2nd Amendment and firearms control issues.

Gunning for Victory

Dave Kopel
National Review Online
October 30, 2008

Dave's predictions and analyses of the pending election from the perspective of civilian firearms ownership.

Beware the Rahm

Dave Kopel
America's First Freedom
January, 2009

After pledging his support for the Second Amendment during the campaign, President-elect Barack Obama appoints devout gun-ban supporter Rahm Emanuel as his chief of staff.

New Blog Posts

Eric Holder on Firearms Policy

David Kopel
The Volokh Conspiracy
November 20, 2008

Obama's prospective Attorney General has a record of considerable concern to firearms' owners and rights advocates.

How the Second Amendment Fared Tonight

Dave Kopel
The Volokh Conspiracy
November 5, 2008

Dave provides an early analysis of how civilian firearms ownership fared in the 2008 elections.

New Video and Audio

Enthusiasts Flock To Buy Guns After Obama's Win

Raj Chohan
Nov 7, 2008

Raj Chohan of the local CBS affiliate interviews Dave in the course of an article investigating a post-election surge in firearms sales. There is a link to the broadcast video on the page, Dave's interview begins at 1:15 in.

How to Interpret the Constitution

Dave Kopel and Rob Natelson
November 24, 2008

Dave interviews University of Montana Law Professor Rob Natelson. They discussion originalism, and Natelson's recent articles.

Colorado 2008 Election wrap-up

Dave Kopel and Jon Caldara
November 17, 2008

Dave here does a podcast with Jon Caldara on Colorado's election results, including the repudiation of several tax increase ballot issues, and the failure of Marilyn Musgrave for re-election to the House of Representatives.

New New Thing


Dave Kopel


Follow Dave on Twitter. For the unschooled, "Twitter is a free service that lets you keep in touch with people through the exchange of quick, frequent answers to one simple question: What are you doing?" Dave provides hyperlinks and other data related to his ongoing activities. The service lends itself to small, handheld internet devices.



Licensing a private weapon is not an option in Egypt

Ahmed Maged
The Daily News (Egypt)
November 7, 2008

Legally owning a firearm in Egypt is nearly impossible due to costs and regulations.


Armed police would not fire back -- 'I wish I'd had a gun, not a camera'

Jerome Taylor
The Independent (UK)
November 29, 2008

Sebastian D'Souza, a news photographer, ran to the sound of gunfire in Mumbai. He photographed the attackers while armed police stayed in cover and refused to engage the terrorists.

Cops Just Had 577 Rifles, Hadn't Fired in 10 Yrs

Prafulla Marpakwar
The Times of India
December 2, 2008

"MUMBAI: The state constabulary was grossly unprepared to deal with the worst-ever terror attacks on the metropolis because of an acute shortage of weapons and ammunition."

India Gun Control Enabled Massacre in Mumbai

November 28, 2008

This New Hampshire-based video blogger and commentator shares his research and observations about the state of firearms rules in India and the recent terrorist attack in Mumbai/Bombay. There is a link to his video on this page.

Time to relax India's Gun Control Laws, to Fight Militants?

Sanjeev Miglani
Reuters Blogs
December 11th, 2008

"Should India ease up on its tight gun control laws to arm citizens so that they can put up a fight next time they are attacked in their hotels, train stations and even a hospital as it happened in Mumbai last month?"

Arming India Against Terrorism

Shikha Dalmia
The Wall Street Journal Asia
December 9, 2008

"The true problem was not a shortage of heroism in those three horrible days. The courageous staff at the two hotels was nothing if not heroic, likely saving as many people as the police watched being killed. At the Taj, one employee even took the bullets for a group of guests he was trying to escort to safety. But if the hotel staff could take bullets, the question is why couldn't they return them?"


Glock, the Gangster's Favourite Gun, to be Banned from Ireland Next Year

Michael Lavery
The Herald (Ireland)
November 19, 2008

"Civilian ownership of semi automatic pistols [in Ireland], such as the Glock, is to be banned under a new move by Minister for Justice Dermot Ahern ... 'The Minister understands there is no connection between gangland crime and legally held handguns. But he is concerned about the proliferation of handguns in society. There are nearly 2,000 legally held handguns, and in a year's time there could be 5,000.' "


Founder of Israeli NRA seeks to import American gun culture

Raphael Ahren
Haaretz (Israel
November 28, 2008

"Under the banner of self defense, the Israeli NRA advocates 'the right to carry a firearm for all law abiding, military-serving Israeli citizens,' as well as the expansion of what is known as the Shai Dromi law, which allows anyone who kills or injures an intruder on his or her property to be absolved of criminal responsibility."


Philippines: Mindanao Civilians Take Up Arms

UN Office for the Coordination of Humanitarian Affairs
November 20, 2008

The UN is concerned over the re-emergence in Mindanao of the Ilago Christian Militia and other groups of armed civilians on the island, some of whom have received firearms from the Philippine government to resist the attacks of the MILF Moro Muslim rebels.


SUDAN: Civilian Disarmament Remains Elusive as Government Rethinks Process

IRIN Africa
UN Office for the Coordination of Humanitarian Affairs
December 3, 2008

The Sudanese government's efforts to disarm civilian populations in the southern provinces have not gone well. The UN expresses its concern.

United Kingdom

Think Tank: If Each of Us Carried a Gun...

Richard Munday
The Sunday Times (UK)
December 7, 2008

The Co-author and editor of Guns & Violence: The Debate Before Lord Cullen points out the helplessness of disarmed populations in the face of armed attackers, such as occurred in Mumbai.

United Nations

UN Members Give Go-ahead on Proposal to Curb Arms

John Heilprin
October 31, 2008

"The U.N. General Assembly overwhelmingly endorsed the idea of an unprecedented treaty regulating the global arms trade Friday, despite opposition from the United States."

Culture of Safety

When Seconds Count: Stopping Active Killers

Brendan Keefe
WCPO-TV (Cincinnati)
November 14, 2008

"Based on the Virginia Tech data, top tactics training facilities determined the first officer on scene should make entry immediately with an aggressive attack on the shooter. Every minute the officer waits for back-up, another three or more people could die." The article also indicates that prospective active shooters search out 'Gun Free Zones' for their rampages. The article has recently been updated in response to queries and criticism with additional statistical data.

Ex-NFL Player Now Makes a Living Dealing Guns

Jim Baumbach
December 6, 2008

"The son of a former Washington, D.C. police officer, Williams has spent his whole life around guns. He said he knew when he made it to the NFL in 1994 that he needed a gun of his own for protection."

Some Tampa Bay Buccaneers Can Make a Compelling Case for Owning Handguns

Stephen F. Holder
St. Petersburg Times
December 4, 2008

"Firearms have become a popular means of protection for many NFL players."

A Month for the Record Books

Press Release
The National Shooting Sports Foundation
December 8, 2008

"Background checks on the sale of firearms reached record levels during the month of November, pointing to a spike in sales for the month. Data from the FBI's National Instant Criminal Background Check System (NICS) show a 42 percent increase in November firearm purchaser background checks."

SCCC Joins with Colorado University Students to File Lawsuit Challenging CU's Ban on Concealed Carry on Campus

Press Release
Students for Concealed Carry on Campus
December 11, 2008

"Two University of Colorado students and one CU alumnus, represented by Mountain States Legal Foundation, have filed a lawsuit challenging the University of Colorado's ban on licensed concealed carry in El Paso County District Court today asking the court to strike down CU's ban on licensed concealed carry on campus." The litigation backgrounder for the suit is to be found here: http://www.concealedcampus.org/SCCCLitigationBackgrounder.PDF

The States and Localities


Gun Checks May Violate Federal Law: Secret 'superchecks' Let State Police Look at Mental Health Records

Lee Williams
The News Journal (Delaware)
October 9, 2008

"The Delaware State Police have been conducting secret background checks of some gun owners since 2001, a process known as 'superchecks' that may violate federal law... The News Journal revealed last month that the unit stopped 81-year-old Alvina Vansickle from buying a .22-caliber pistol for self-defense because she was too old, and a woman, and that FTAP was not routinely destroying records of legal purchases within 60 days, as required."

District of Columbia

D.C.'s Evolving Gun Laws

Brian Doherty
December 3, 2008

The District of Columbia's City Council continues its efforts to make legal firearms ownership in the District as difficult and onerous as possible while seeming to comply with the Supreme Court's Heller decision.


Study Session: Winnetka Village Council

Web Information Packet
Village of Winnetka
December 9, 2008
PDF files require Adobe Acrobat Reader or similar software.

"Winnetka, Illinois, has repealed its ban on civilian possession of handguns."


Police Chief is Charged in Death

Michael Levenson
The Boston Globe
December 5, 2008

"A small-town police chief who authorities say promoted, organized, and profited from a firearms exposition where children were encouraged to shoot machine guns and where an 8-year-old killed himself with a Micro Uzi was charged yesterday with involuntary manslaughter."


Gun Law's One Sure Outcome: Paperwork

Frederick Melo
St. Paul Pioneer Press (MN)
November 24, 2008

Little change in crime rates has accompanied Minnesota's 'Shall Issue' concealed carry law.


Press Release

Office of the Secretary
U.S. Department of the Interior
December 5, 2008

The Department of the Interior now allows concealed carry for valid permit holders within the National Parks system.

Don't Take Your Guns to Town: Will Attorney General Eric Holder Respect the Second Amendment?

Damon W. Root
September 17, 2008

"Holder, who served as deputy attorney general under President Bill Clinton and as acting attorney general under President George W. Bush (a position he held until John Ashcroft was confirmed), has pushed for sweeping and restrictive gun control measures throughout his career while also endorsing the now-discredited collective rights interpretation of the Second Amendment."

Gun Rights take Center Stage at Chambliss Rally in Perry

Travis Fain
The Telegraph (Macon, GA)
November 26, 2008

"Describing the stark descent into heavy gun regulation that they say Barack Obama's presidential administration will seek, National Rifle Association officials came to town Wednesday and backed U.S. Sen. Saxby Chambliss as a last line of defense for freedom and the Second Amendment"

Seeking a Presidential Pardon? Try Praising the Right to Bear Arms -- Five Forgiven by Bush Share a Trait: They Really Missed Their Weapons

Amir Efrati
The Wall Street Journal
November 29, 2008

President Bush has granted pardons to convicted, non-violent felons who have asked for the restoration of their right to possess firearms.


Domestic Violence Abusers Could Get Gun Rights

David G. Savage
The Los Angeles Times
November 11, 2008
PDF files require Adobe Acrobat Reader or similar software.

"Thousands convicted of a misdemeanor for threatening or assaulting a spouse or girlfriend could once again own guns because of a flaw in the federal law." The transcript of the November 10 argument of U.S. vs. Hayes can be found here http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-608.pdf

United States vs. Cavera

No. 05-4591
United States Court of Appeals for the Second Circuit
December 4, 2008

Second Circuit en banc panel holds that it is all right for a district judge to give a sentence for firearms trafficking above the Guidelines, because of the special circumstances of New York City.

Nordyke Briefs are In

Gene Hoffman, Jr.
October 2, 2008

Here are the collected briefs for Nordyke, et al v. King, et al, Case Number: 07-15763. This case challenges a gun show ban on county property, and is the first Circuit Court of Appeal case to raise the issue of incorporation of the Second Amendment. Don Kilmer is the attorney for the pro-rights side of the case.

Memorandum Opinion and Order: N.R.A. vs. Oak Park/N.R.A. vs. Chicago

Milton I. Shadur
U.S. District Court for the Northern District of Illinois
December 4, 2008
PDF files require Adobe Acrobat Reader or similar software.

This District court in Illinois has ruled that 7th Circuit precedent in Quilici forbids him to consider incorporation of the Second Amendment.

Judge Upholds Domestic Violence Gun Ban

David Ziemer
Wisconsin Law Journal
December 2, 2008

"The federal statute making it a crime for a person subject to a domestic violence injunction to possess a firearm does not violate the right to bear arms. U.S. District Judge Lynn Adelman distinguished the ban from the Washington D.C. gun control law, struck down by the U.S. Supreme Court's decision in D.C. v. Heller, 128 S.Ct. 2783 (2008).

SAF, NRA Sue Washington State for Discriminating against Alien Residents

Press Release
The Second Amendment Foundation
November 4, 2008

"The Second Amendment Foundation, joined by the National Rifle Association, today filed a lawsuit in federal court against the State of Washington, seeking to overturn a state law that discriminates against legal resident aliens who own firearms by violating their Second Amendment rights under the equal protections affirmed by the 14th Amendment."

Lawsuit Aims to Test Iowa's Concealed Weapons Law

Lee Rood
The Des Moines Register (IA)
November 3, 2008

"An Ocheyedan man has filed a federal class-action lawsuit challenging the constitutionality of an Iowa law that requires individuals obtain a permit to carry a concealed weapon. Paul Dorr, 52, said Thursday that Osceola County Sheriff Douglas Weber wrongly denied on a political whim his and his 18-year-old son's requests for permits to carry concealed weapons.


The Right to Defensive Arms After District of Columbia v. Heller

Michael P. O'Shea
West Virginia Law Review

Heller departs from Miller's understanding of the relationship between the Second Amendment right to arms and the civic purposes (deterring tyranny, military readiness, etc.) that are mentioned in the Amendment's prefatory clause. Heller recognizes what might be called a nineteenth-century right to arms, one whose clearest prior expression is found in state judicial decisions and other sources from the century following the American founding. I consider at length one of the most important adjudicative problems likely to arise under Heller: how to determine which types of novel or contemporary "arms" are protected by the Second Amendment. I argue that courts should rely as much as possible on verifiable, external sources of evidence on this matter, especially the revealed judgments of private citizens and police departments about which arms are worth obtaining today for defense.

"The Last Progressive: Justice Breyer, Heller, and "Judicial Judgment"

Richard Schragger
University of Virginia Public Law and Legal Theory Working Paper Series

This paper considers Justice Breyer's dissent in District of Columbia v. Heller--in which the Court established an individual right to bear arms--as a species of progressive jurisprudence. By progressive, I do not mean a political program but rather an approach to how the Supreme Court views its role and its work. Progressive jurisprudence was developed in the shadow of the relative formalism of the classical jurists and forged in the pragmatic philosophical tradition at the turn-of-the-century. Progressive judges eschewed absolutist constitutional claims; their decisions were fact-based, attentive to changing social conditions, and deferential to legislatures.

From Ballots to Bullets: District of Columbia v. Heller and the New Civil Rights

Anders Walker
Louisiana Law Review

This article posits that the Supreme Court's recent Second Amendment ruling District of Columbia v. Heller is a victory for civil rights. Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights. The implications of this are potentially great. By declaring the right to use deadly force in self-defense an "essential" right, the Court has just positioned itself to use the same due process analysis that it did in Roe v. Wade to invalidate municipal gun bans, without having to overrule past opinions like Cruikshank or even bothering to incorporate the Second Amendment to the states. Anders Walker teaches at the Saint Louis University School of Law

Heller, HLR, and Holistic Legal Reasoning

Akhil Reed Amar
Harvard Law Review, Vol. 122:145, Pages 145-190
Fall, 2008
PDF files require Adobe Acrobat Reader or similar software.

"In Heller itself, the various opinions invoked over a dozen articles, including a 1940 classic from the Harvard Law Review. Indeed, last Term was a banner year not just for gun wielders like Dick Heller, but also for the editors of the Harvard Law Review. All told, the Justices cited fifteen different HLR articles -- more than double the article count of any other legal periodical."

North Dakota Lead Exposure Study

Shahed Iqbal
The Center for Disease Control
October 14, 2008
PDF files require Adobe Acrobat Reader or similar software.

People in North Dakota who eat wild game have slightly higher blood levels of lead. No one surveyed had levels considered by the CDC to be in need of treatment.

The Movement of Illegal Guns in America

Mayors Against Illegal Guns
December, 2008
PDF files require Adobe Acrobat Reader or similar software.

This study claims that states with lax gun laws fuel crime in other states through illegal transfers of firearms.

Aiming for Accuracy: An NSSF Blog

The National Shooting Sports Foundation

This ongoing series of posts offers very good information from the firearms industry organization to those refuting inaccurate or exaggerated claims about firearms.

Opposing Views: Guns

Opposing Views, Inc.

This page serves as a clearinghouse for current commentary and advocacy pieces on both sides of the ongoing debate over civilian possession of firearms.

Christmas and Hanukkah!

The Founders' Second Amendment

Stephen P. Halbrook
The Independent Institute

Monday, December 15, marks America's Bill of Rights Day, the anniversary of the ratification of the Bill of Rights of the U.S. Constitution. To commemorate this event, the Second Amendment Book Bomb website has been created, a unique and powerful way to communicate the importance of the Bill of Rights' Second Amendment for the protection of liberty. With your help, we can launch constitutional rights to the top of national book bestseller lists, making a loud and clear statement that Second Amendment rights are inalienable! And now we have the tool to do so. Fascinating, seminal, and inspiring, the new book, The Founders' Second Amendment: Origins of the Right to Bear Arms, by Dr. Stephen P. Halbrook, is the perfect way both to educate ourselves and to reach friends and family who don't yet understand Second Amendment rights. Our goal is to reach one million Americans with Dr. Halbrook's book during the Holiday Season and throughout the New Year ahead. Will you help? To achieve this goal the Second Amendment Book Bomb website has been established to create a phenomenon so great that even the mainstream media will have to take notice. With your assistance, we can make Dr. Halbrook's book #1 on the nation's bestseller lists. To make this happen, please go to the website and pledge to buy at least one copy of the book before or on the December 15th Second Amendment Book Bomb date. Please help now by making your pledge here: http://www.secondamendmentbook.com/ Even if you can only order after the 15th, every sale is that much more of a chance to attract media notice to a great Christmas gift and a great book for any American.

AmericanSnipers.Org Donate

Informational Web Page
Christmas, 2008

AmericanSnipers.org exists to help support snipers who go in harm's way on our nation's behalf, by helping supply them with items that they need to get the job done better as well as things to make their lives easier while on deployment. This has been everything from the basic hygiene type items such as handy wipes to tactical products such as holsters, high speed rucksacks, new optics, rifle accessories, to mini binoculars and batteries.

Darkness in the Mirror

Rob S. Rice
The Esterhazy Press

In Victorian times, the last celebration on Christmas Eve was... The telling of Ghost Stories! Dr. Rice, the shadowy, sinister figure who edits and codes this newsletter, and complains if he's not invited to the Institute's Christmas party, is at it again. Nothing says 'Merry Christmas' like Victorian horror fiction. Ask Charles Dickens!

This newsletter is compiled with help from Dr. Rob S. Rice. For yet more on this atrabilious, yet resilient individual, see here: http://ccat.sas.upenn.edu/rrice/rrice_hd.html.

Al Qaeda delenda est!

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