Dave Kopel's Second Amendment Newsletter, April 23, 2010

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


New by Kopel
Law Review Articles

How Many Global Deaths from Arms? Reasons to Question the 740,000 Factoid being Used to Promote the Arms Trade Treaty
Dave Kopel with Paul Gallant, and Joanne T. Eisen
SSRN Working Papers Series
March 29, 2010
Currently, the United Nations is drafting an Arms Trade Treaty to impose strict controls on firearms and other weapons. In support of hasty adoption of the Treaty, a UN-related organization of Treaty supporters is has produced a report claiming that armed violence is responsible for 740,000 deaths annually. This Article carefully examines the claim. We find that the claim is based on dubious assumptions, cherry-picking data, and mathematical legerdemain which is inexplicably being withheld from the public. The refusal to disclose the mathematical calculations used to create the 740,000 factoid is itself cause for serious suspicion; our own calculations indicate that the 740,000 figure is far too high.
The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Flawed Scholarship of Nathan Kozuskanich
Dave Kopel with Clayton Cramer
19 Widener Law Journal
Kopel and Cramer examine the historical underpinnings of historian Nathan Kozuskanich's claim that the right to arms in the 1776 Pennsylvania constitution only guaranteed a right to serve in the commonwealth's militia. Here is the final 'to-the-printers' version.
Credentials are No Substitute for Accuracy: Nathan Kozuskanich, Stephen Halbrook and the Role of the Historian.
Dave Kopel with Clayton Cramer
Widener Law Journal
2010, Forthcoming
In response to our criticisms of errors and omissions in Nicholas Kozuskanich's articles about the history of the right to arms in early Pennsylvania, Kozuskanich offers an unpersuasive reply and counterattack. While he continues to insist that the Pennsylvania Constitution, which declared "That the people have a right" to arms meant that only militiamen had a right, he is still unable to explain why the Pennsylvania drafters, in three other Articles, used "That the people have a right" to mean that all the people (not just a special group) have a right. Nor does he explain why his original articles failed to even mention the existence of the other Articles with identical language. Kozuskanich doubles down in his efforts to prove that Second Amendment scholar Stephen Halbrook is "inept," but Kozuskanich's purported proofs are mistaken. For example, Kozuskanich claims that Halbrook offered nothing more than a bare assertion in support of Halbrook's interpretation of the right to arms Article in the Pennsylvania Constitution. To the contrary, Halbrook provided nine pages of analysis, supported by 58 footnotes.
The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators.
Dave Kopel, Paul Gallant, and Joanne T. Eisen
114 Penn State Law Review, No. 3, 2010, Forthcoming
Advocates of the proposed United Nations Arms Trade Treaty (ATT) promise that it will prevent the flow of arms to human rights violators. This Article first examines the ATT, and observes that the ATT, if implemented as promised, would require dozens of additional arms embargoes, including embargoes on much of Africa. The Article then provides case studies of the current supply of arms to the dictatorship in Zimbabwe and to the warlords in the eastern Democratic Republic of the Congo (DRC). The Article argues that the ATT would do nothing to remediate the conditions which have allowed so many arms to be acquired by human rights violators. The ATT would have no more effective force than the embargoes that are already imposed by the UN Security Council; therefore states, including China, which violate current Security Council embargoes could just as well violate ATT embargoes. Accordingly, the ATT is a distraction, and human rights activists should instead examine alternative methods of addressing the problem of arms in the hands of human rights violators. At the end of this document: En français, une version de 8 pages de ce document est disponible en français. En español, el extracto está disponible en español.

Journal and Media Appearances
Speech Freed!
Dave Kopel
America's First Freedom
April, 2010
PDF files require Adobe Acrobat Reader or similar software.
"The Supreme Court's decision in Citizens United restores the free speech of civil rights groups, such as the NRA."
The Push for States' Rights
Dave Kopel with Doug Fabrizio
Radio West, KUER Public Radio (Salt Lake City, UT)
April 7, 2010
Dave appears 12:54 into this hour-long program, discussing the changing nature of the relationship of the Federal Government to the States.
Analysis of the McDonald Oral Argument
Dave Kopel with Michael Bane
Downrange TV with Michael Bane
March 2, 2009
Dave and host Michael Bane discuss the arguments in McDonald v. Chicago , the RKBA case recently argued before the Supreme Court. 34 minutes.

Kopel's Bloggery
Why United States v. Millerwas so Badly Written
David Kopel
The Volokh Conspiracy
February 27, 2010
"McReynold's product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court's business." Miller was the dominant Supreme Court decision on the Right to Keep and Bear Arms before Heller ."
Reasonable regulation and McDonald
David Kopel
The Volokh Conspiracy
March 2, 2010
"Heller never adopted a 'reasonable regulation' standard. Heller allows for machine gun bans under theory that they are not part of the Second Amendment (that is, they are not Second Amendment 'arms'). Restrictions on gun carrying in 'sensitive places' are not explained doctrinally, but they are easily comparable to First Amendment 'time, place, and manner' rules. Heller says that concealed carry may be banned; in the states, the dominant theory for this restriction was that concealed carry was not part of the right. Finally, Heller 's allowance for conditions and qualifications on the commercial sale of guns was expressed without being described as part of some kind of 'reasonableness' test."
Goodwin Liu on the Second Amendment
David Kopel
The Volokh Conspiracy
February 25, 2010
"Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here's an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution , 91 Georgetown Law Journal 439 (Jan. 2003)."
Two Homeland Security Agencies Lost Almost a Thousand Computers in One Year
David Kopel
The Volokh Conspiracy
February 24, 2010
"As detailed in an investigation by the Independence Institute's Todd Shepherd. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) lost at least 985 computers in the 2008 fiscal year. ICE also lost 13 automobiles, while CBP lost 235 night vision scopes."
Diane Wood on the Second Amendment
David Kopel
The Volokh Conspiracy
April 9, 2010
"...Judge Wood chose to preemptively rule on the constitutionality of gun registration. Her ruling was bereft of the analysis that is necessary for judicial analysis of restrictions on any enumerated right. It is safe to say that Judge Wood has ample legal skills to conduct carefully-reasoned legal analysis when she chooses to do so. Accordingly, it is plausible to infer from her unreasoned opinion a disregard for Second Amendment rights."
Merrick Garland is no Friend of the Rights of Gun Owners
David Kopel
The Volokh Conspiracy
April 9, 2010
"Details here regarding the 2000 case NRA v. Reno , and Judge Garland's refusal to require the Clinton Department of Justice to obey the federal statute requiring the destruction of records of firearms purchases by law-abiding Americans. The decision also suggests a cavalier disregard for privacy rights in general, such as the right not to be put on a government list simply because one engaged in a lawful activity."

The Weakness of Taliban Marksmanship
C.J. Chivers
New York Times: At War Blog
April 2, 2010
This article delivers a quite detailed analysis of the deficiencies of the weapons and marksmanship employed by the Taliban in their battles with coalition forces, and rather puzzlingly goes on to discuss means by which they might well correct them.

Armenia: Illegal Hunting in Nature Reserve Exposed
Simon Maghakyan
Global Voices Online
February 24, 2010
A You-Tube video posting of a Forester illegally shooting a wild boar in a nature preserve created uproar enough to prompt the Forester's dismissal.

Hungary to set new parking, gun rules
Hungary Around the Clock
March 11, 2010
"Hungary's gun laws are set to be tightened, meanwhile. Justice Minister Imre Forgács said only those who have been members of a sports club for at least three years and who pass a psychology test will be granted a gun licence, after yesterday's regular cabinet meeting."

Target-shooter loses appeal to keep guns
Olivia Kelleher
The Irish Times (Ireland)
December 1, 2009
"Patrick Herlihy, who lives in the Carrigaline area of Co Cork, held licences for the weapons for four years. However, tightening up of firearms legislation earlier this year led to the refusal in October by gardaí in Cork to renew his licences for the Sig Sauer pistols and Smith and Wesson revolvers."
Pro-hunting Groups to Continue Protest against Ban
Michael Parsons
The Irish Times (Ireland)
April 1, 2010
"Pro-hunting campaigners have pledged to continue lobbying TDs and Senators to block the Wildlife (Amendment) Bill 2010, which will make hunting deer with a pack of hounds an offence."

New Zealand
Licensed Owners Win Gun Fight against Police
Jeff Tollan
The Timaru Herals (New Zealand)
April 3, 2010
"A 'victory for commonsense' has been reached in the High Court at Palmerston North after a gun owner took police to task over recent changes to firearm classifications."

Nigerian 'gun control' Enables Massacre
David Codrea
The Examiner
March 10, 2010
Codrea rather scathingly points out, using quotes from parties involved or commenting, that the Nigerian Christians slaughtered last month by Muslims with edged weapons and some firearms were in compliance with the government ban on civilian arms possession and under utterly unavailing government protection.

Uganda offers a 'gun control' Paradise
David Codrea
The Examiner
March 7, 2010
Codrea notes with irony that Uganda's ruling elites both possess and brandish firearms after much-publicized civilian disarmament program in the country.

Pro-Rights Movement
NSSF/Harris Poll: Target Shooting, Home Defense Top-ranked
Press Release
The National Shooting Sports Foundation
March 31, 2010
"A new National Shooting Sports Foundation poll conducted by Harris Interactive found that more Americans are target shooting now than six months ago, and that 'home and personal defense' were the main reasons Americans recently purchased firearms."
O's Scott takes Issue with MLB gun ban: He says Rule Punishes all for Poor Choices by Some
Jeff Zrebiec
The Baltimore Sun
February 27, 2010
"Orioles designated hitter Luke Scott understands the purpose behind Major League Baseball's recent directive prohibiting guns and other deadly weapons from clubhouses, and said he'll abide by it. He just doesn't agree with the ban."
Gun Saint Society Honors Fort Hood Police Heroes
John M. Snyder
Telum Associates, LLC
March 31, 2010
"Fort Hood, Texas police Sgts. Mark Todd and Kimberly Munley this week wore St. Gabriel Possenti Society honor medallions presented by Society Founder-Chairman John M. Snyder at the American Police Hall of Fame (APHF) in Titusville, Florida."
Wolf Hunt Season ends with Killings Shy of Limit
Betsy Z. Russell
The Spokesman-Review (Spokane, Washington)
April 1, 2010
"Idaho closed the first regulated wolf-hunting season in the lower 48 states Wednesday, and state Fish and Game officials are calling it a success."
Is Orthodox Jewish gun dealer Bill Bernstein an obnoxious right-wing agitator or a lovable curmudgeon? Either way, he's a progressive's worst nightmare. Glorious Bastard
Jack Silverman
The Nashville Scene (Tennessee)
April 1, 2010
"Bernstein does not suggest the stereotypical 'gun nut' of anti-handgun straw-man arguments – a yahoo itchy to open fire for the hell of it, anytime, anywhere. That's not to say he doesn't share much in common with those who fall under that umbrella. He thinks Obama is a disaster. He agrees with Rush Limbaugh. (He has no opinion of Bill O'Reilly because he hasn't owned a TV in many years.) He loves goading liberals, and if the Tennessee legislature proposed to let kindergarten teachers pack heat in the sandbox, he would probably offer an MNEA discount."

Anti-gun movement
Bloomberg Sends Stern Letter to Obama Demanding Gun-Control Action
Sam Stein
The Huffington Post
March 30, 2010
"New York City Mayor Michael Bloomberg – who at one point was considered an Independent ally of the White House but has proven to be a somewhat reliable critic – is going hard after the president, accusing Obama of dragging his feet on gun control."
Lautenberg's Gun Ban For 8-Yr-Old Cub Scout Terrorist
Alan Gottlieb
Right Side News
March 29. 2010
"Lautenberg's bill seeks to ban gun sales to those on the terrorist watch list. It is appalling to think that a regular American seeking to purchase a gun to protect his or her loved ones or go hunting could be blocked from purchasing a firearm because somehow their name is erroneously on the terrorist watch list." The Cub Scout in question mistakenly appeared on the 'no fly' list.
Media Picking up SPLC's Hateful Talking Points against Gun Owners and Tea Partiers
David Codrea
The Examiner
March 4,2010
"Alabama's NBC13 has prepared a special report, 'Dramatic rise in grass roots militia groups.' It's but one of many increasing media efforts associating those of us who believe in the Framer's vision of the Second Amendment with domestic terrorists, along with the insulting proposition that opposition to the current president's policies is a manifestation of racism."
Father Pfleger Leads Gun Rally at Federal Plaza
Steve Miller
WBBM-780 (Chicago, IL)
March 19, 2010
"The Thursday demonstration borded [sic] on performance art: As each name was read of Chicago Public School students shot and killed last year, someone would pop another balloon, and another young person in the crowd would fall to the ground."

Why is ATF Seizing 'Toy Guns'?
David Codrea
The Examiner
February 28, 2010
The BATFE recently seized a shipment of Airsoft toy M4 carbines that the Bureau claimed could be readily converted into full-automatic weapons firing real cartridges. Codrea points out the sheer volume and difficulty of the changes that would be required.
BATFE Guilty of More Arrogant Behavior – Seizes Toy Guns
Press Release
Gun Owners of America
March 17, 2010
Here is a more up-to-date discussion of the seizure. The BATFE has maintained possession of the toy guns, which are slated to be destroyed.

A Constitutional Right to Hunt? Voters in Three States to Decide
Suzi Parker
The Christian Science Monitor
February 26, 2010
"Worries that hunting will one day be banned or restricted – the result of the work of animal rights activists or of "liberals" in control of Congress – are leading more states to establish "a right to hunt and fish" in their state constitutions. This year, residents of Tennessee, Arkansas, and South Carolina will vote on right-to-hunt initiatives, and North Carolina and other states may yet add hunting-related constitutional amendments to their ballots."

CSU Approves Separate Concealed-weapons Policies for Two Campuses
Monte Whaley
The Denver Post
February 24, 2010
"Rocky Mountain Gun Owners has threatened to lead the legal charge against the gun policy, which bans people from carrying licensed concealed weapons on both campuses."
Sheriff Says He'll Undermine gun ban: Anti-gun Theorists Impose Dangerous Policy
The Colorado Springs Gazette
February 23, 2010
"'I have told the CSU police chief I will not support this in any way,' Sheriff Alderden told The Gazette . 'If anyone with one of my permits gets arrested for concealed carry at CSU, I will refuse to book that person into my jail. Furthermore, I will show up at court and testify on that person's behalf, and I will do whatever I can to discourage a conviction. I will not be a party to this very poor decision.'"
NRA has gotten most of what it wanted in Florida Legislature
Marc Caputo
The Miami Herald
February 18, 2010
The NRA has done very well in the Florida Legislature this year, so much so that pro-NRA legislators are retiring with a sense of a job completed.

Video cameras in cars make some cops uncomfortable
Frank Main
The Chicago Sun-Times (Illinois)
March 29, 2010
"Privately, some cops told the Chicago Sun-Times they were ignoring the rule to turn on camera systems because they're worried their words and actions will come back to haunt them. They explained they sometimes must use harsh language to establish control over people they stop."

Daniels Signs Workplace Gun Law: Firearms in Locked Autos Part of 'Fundamental Right'
Niki Kelly
Fort Wayne Journal Gazette (Indiana)
March 19, 2010
" 'Protecting these rights – is appropriate,' Daniels said. 'I also am compelled to give great weight to the overwhelming consensus of both houses of the General Assembly as they passed this bipartisan statute.' "

Culver Signs Bill Banning Guns from Abusers
Rod Boshart
The Sioux City Journal (Iowa)
February 1, 2010
"The legislation calls for people who are the subject of a protective order or have been convicted of domestic abuse to relinquish firearms by selling them, transferring them to a qualified party, such as a family member, or turning them over to law enforcement to hold for the length of the protective order."

Omaha Handgun Registration Does Not Apply to Concealed Carry Permit Holders
Press Release
Office of the Nebraska State Attorney General
March 26, 2010
PDF files require Adobe Acrobat Reader or similar software.
"Attorney General Jon Bruning today issued an opinion finding that Omaha's city ordinance requiring handguns to be registered does not apply to anyone with a state-recognized concealed handgun permit."

New Mexico
Governor Bill Richardson Orders Additional Safeguards to New Concealed Carry Law
Press Release
State of New Mexico: Governor Bill Richardson
March 10, 2010
PDF files require Adobe Acrobat Reader or similar software.
"Governor Bill Richardson today signed a bill that removes the ban on concealed carry licensees from bringing their weapons into New Mexico restaurants with beer and wine licenses. However, Governor Richardson is ordering additional safeguards to address public safety concerns surrounding the bill."

Gun Bill Signed by Herbert: Despite his Concerns about Its Constitutionality, Governor says Message is Worth It.
Brandon Loomis and Robert Gehrke
The Salt Lake City Tribune (Utah)
February 26, 2010
"The Utah Legislature's war of words with Washington now includes Gov. Gary Herbert's signature on a local-control gun bill that could escalate the rhetoric into a court fight. The bill seeks to thwart federal regulation of guns made, sold and kept in the state. Herbert waited until Friday's deadline to sign or veto SB11, the Utah-Made Firearms Act, apparently troubled by legislative attorneys' warning that it 'is highly likely to be held to be unconstitutional.' Ultimately, he decided the message is worth the legal wrangling."

This Does Draw a Line in the Sand
Jeremy Pelzer
The Casper Star-Tribune (Wyoming)
March 11, 2010
"The legislation, which takes effect in July, is meant as a shot across the bow of the federal government. But it's unclear whether the new law will remain a symbolic declaration of states' and Second Amendment rights, or spark a real-life confrontation between state and federal officials." The law declares that all firearms made and sold within Wyoming's state borders are not subject to Federal controls.

Case with Implications for DV Misdemeanor Pleas
David Hardy
Of Arms and the Law
March 31, 2010
"Padilla v. Kentucky , handed down this morning... The opinion points out that various immigration reforms have changed the deportation consequence from something of a concern (the sentencing judge could recommend against it, and that was virtually binding) to an inevitability. The majority thus find that deportation is a key part of the penalty, and a person pleading out must be informed of it. " Accordingly, someone disarmed having mistakenly pled guilty to a misdemeanor charge of domestic violence might have grounds to have that plea reconsidered and the right to keep and bear arms restored.
District Court Upholds D.C. Registration Requirement, "Assault Weapon" Ban, Ban on Large-Capacity Magazines
Eugene Volokh
The Volokh Conspiracy
March 26, 2010
Volokh here offers his appraisal of the D.C.'s District Court Heller v. District of Columbia decision, which upheld the District of Columbia's ban on 'assault weapons' and large-capacity magazines, using language from the dissent to the Supreme Court's earlier decision of the same name.

Court Dismisses "Heller II" Case: D.C. Gun Registration, "Assault Weapon" Ban, and "Large" Magazine Ban Upheld
Press Release
The National Rifle Association's Institute for Legislative Action
March 29, 2010
The NRA-ILA offers a more detailed summary of the decision and the reasoning cited by Judge Richard M. Urbina in dismissing the case.
New D.C. Gun Laws Upheld: Sequel to 2008 ruling
Lyle Denniston
March 26, 2010
Here is a close-hand very informed look at the case, the grounds for the decision, and the chances and mechanisms of an appeal.
Unexpected Flight Delay => Hotel Stay = > Criminal Prosecution for Gun Possession
Eugene Volokh
The Volokh Conspiracy
March 30, 2010
"An unfortunate story, detailed in Revell v. Port Authority (3d Cir. 2010): Gregg C. Revell was flying from Salt Lake City to Allentown, Pennsylvania, via Minneapolis and Newark. He had an unloaded gun legally checked in his luggage, which was supposed to meet him at Allentown..." Mr. Revell spent four days in jail, until making bail, and only received his firearm back after three years.
Indiana Appeals Court: Concealed Carry Not a License To Be Searched
Judge James S. Kirsch
March 8, 2010
"Police may not search a vehicle merely because its driver has been issued a valid concealed carry permit, the Indiana Court of Appeals ruled on Thursday." The decision is Washington v. Indiana , available here as a PDF file.


Harvard School of Public Health Unveils Comprehensive, Public Online Library of Firearms Research
PR Newswire
Harvard Public School of Health/Joyce Foundation
March 10, 2010
A new firearms research database launched by the Harvard School of Public Health makes scholarly articles more accessible to reporters, law enforcement, public health officials, policymakers, and the general public. The database itself may be accessed here .
Center for Small Arms Research
Informational Web Page
The University of Oklahoma
2010, Ongoing
"The Center for Small Arms Research seeks to develop and promote academic research at the University of Oklahoma that focuses on the global problems associated with small arms and light weapons. CSAR hopes to facilitate a network of scholars from numerous disciplines at the University who may work together to conduct research relevant to the various causes and consequences of small arms proliferation, availability, circulation, and misuse."

This newsletter is compiled with help from Dr. Rob S. Rice. For more on this consonant, yet multifarious individual, see here: http://robricebooks.com. See Rice stammer! See Rice flub his lines! See Rice breathe and hesitate! Movie link on page. See the Credit that made Rice scream!
Al Qaeda delenda est!

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