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DAVE KOPEL'S SECOND AMENDMENT NEWSLETTER
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of the Second Amendment Foundation, in Bellevue, Washington.
Please visit Dave Kopel's website, containing articles on the Second
Amendment and other freedom topics.
http://www.davekopel.org To subscribe to this free e-mail newsletter, please send a request to: Table of Contents
New by KopelLaw Review ArticlesState Standards for the Right to ArmsDavid Kopel with Clayton Cramer "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."
The Right to Arms in the Living ConstitutionDave Kopel This article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Flawed Scholarship of Nathan KozuskanichDave Kopel with Clayton Cramer 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.
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 "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." What's up now is the near-final version. Short ArticlesSouth Africa's Deadly DisasterDave Kopel "When not banning guns outright, the gun prohibition lobbies—both in
the United States and abroad—promote gun owner licensing as a
'reasonable' and 'sensible' regulation. Yet, the terrible experience of
South African gun owners shows how purportedly 'reasonable' licensing
can be used to devastate a culture of responsible gun ownership." The Next Supreme Decision: Showdown Over ChicagoDave Kopel "The NRA files a brief in the U.S. Supreme Court case of McDonald
v. Chicago, making a powerful argument in defense of the Second
Amendment." Podcasts and AudioThe Privileges or Immunities Clause and What it Means for the Second AmendmentDavid Kopel with Ilya Shapiro Kopel interviews the Cato Institute's Ilya Shapiro about his new law
review article. 29 minutes. What Miller MeantDavid Kopel with Michael O'Shea Kopel interviews Michael O'Shea about the history and multiple
meanings of United States
v. Miller. 65 minutes. The International Hunter Education AssociationDavid Kopel with Wayne East Kopel interviews the International Hunter Education Association's
Wayne East, about IHEA's good works in teaching safety and
responsibility. 26 minutes. David Kopel: Aiming for Liberty, The Future of Freedom and Self-DefenseJim Pfaff with Dave Kopel Jim Pfaff interviews Kopel about Aiming for Liberty, Dave's new book. 24 minutes. Kopel's BloggeryThe Story of the Armed Community OrganizersDavid Kopel One of the reasons that as many figures in the Civil Rights movement
of the 60's fared as well as they did is that a considerable number of
them were armed with things besides faith and virtue. "Birther" claim about Obama and the Bush National Guard Hoax: Fruit of the same Poisonous Tree?David Kopel "So suggests John Avalon, in a Daily Beast column 'The Secret History
of the Birthers.' He traces birtherism to a Texas woman named Linda
Starr, who was a Hillary Clinton delegate to the 2008 Texas state
Democratic Convention. Avalon writes that Starr 'was also cited as a key
source for CBS's discredited election year investigation into George W.
Bush's National Guard records that led to Dan Rather's replacement after
24 years as the evening news anchor.'" State Court Standards of Review for the Right to ArmsDavid Kopel "That's that title of a forthcoming article in a Santa Clara Law
Review symposium, by Clayton Cramer and me. We examine, in detail,
scores of important cases, from Bliss
v. Commonwealth in 1822
up to the present. We explain which cases can provide useful guidance to
modern courts which must interpret the Second Amendment (and which cases
use an approach is plainly inapplicable to Second Amendment analysis,
post–Heller)." How the Right to Arms Saved the Non-violent Civil Rights ProtestersDavid Kopel "As the history of the Civil Rights Movement demonstrates, the denial
of the constitutional right to own a handgun could endanger other
constitutional rights, particularly the rights of community organizers." Where is Gao Zisheng?The Volokh Conspiracy "There is no writ of habeas corpus in China, nor are there most of
the other civil rights guarantees which are characteristic of a
civilized nation with a free government. And so Gao Zisheng's writ of
habeas corpus will not be issued by a Chinese court, but its moral
equivalent can be issued by the free people of the world: commanding
that the body of Gao Zisheng, in the Chinese government's custody
detained, as it is said, together with the day and cause of his caption
and detention, be safely brought forth." Roscoe Pound on the Second AmendmentThe Volokh Conspiracy "As David Bernstein has explained, Pound argued on a broad front that
judges should ignore the text and original meaning of the Constitution,
so as not to impede (supposedly) beneficial expansions of government
power to restrict personal freedom. Pound was no friend of the
Constitution." Interpol RealismDavid Kopel "Over the past few weeks, there has been a lot of concern in some
quarters about President Obama's Executive Order extending certain legal
immunities to Interpol. These concerns are misplaced. I am currently
writing a research paper on Interpol, which will cover the immunities,
and many other issues." Best unknown gun rights writer? Howard NemerovDavid Kopel "The Examiner on-line
newspapers have provided forum for a bevy of authors who write on Second
Amendment and firearms policy issues. There are plenty of good writers
among them, but my favorite is Howard Nemerov, who writes for the Austin
Examiner. Howard´s columns are often data-rich (such as his latest
piece, on the failures of police protection in Chicago). He is no mere
commentator, but instead works hard to research the facts and advance
the story." Mr. Nemerov's work can be found here: http://www.examiner.com/x-2879-Austin-Gun-Rights-Examiner Justice Ginsburg: Supreme Court may Eventually Overrule HellerDavid Kopel "On Thursday, Dec. 17, Justice Ginsburg spoke at a luncheon of the Harvard Club of Washington, D.C. I was not present at the luncheon, but I have heard, third-hand, that she spoke on the value of dissenting opinions. She said that sometimes a dissent can become the majority of a 'future, wiser court.' As an example, she pointed to the dissent in District of Columbia v. Heller." InternationalThe BahamasGun License Holders Requested to Renew or Face Possible ChargesLoretta Mackey "Please know that the deadline for renewal ended on 31st December,
2009. Furthermore, the 'grace' period of fourteen after the deadline has
also expired. Therefore, gun license holders, should make a special
effort to renew their licenses immediately. You are all reminded that if
you have not renewed your licenses, you are now in 'possession of an
unlicensed firearm/ammunitions' which are criminal charges."
The BalkansHunting surges in Southeast EuropePhil Cain "After the fall of communism, hunting became an economic imperative
in the Balkans, worrying conservationists."
EgyptFirearms, and another Friday night in CairoIngrid Wassmann "Egyptians are confronting a violent crime wave with a decidedly American approach: buying guns and taking the law into their own hands."
FinlandFinns propose ban on handguns after shootingsMatti Huuhtanen "A Finnish government commission on Wednesday proposed a ban on
semiautomatic handguns after two school shootings in recent years left
20 people dead."
MexicoMexican Gun Control: The Bitter IronyHoward O. Ness "We read with horror about yet another mass slaughter in our Mexican
border city, Juarez, on the last day of January when 18 young persons
were killed in cold blood at a festive event. This story is now being
repeated all over Mexico, particularly in the northern tier of states.
There is a terrible irony about the current wave of deaths occurring
from out-of-control shootings, many with fully automatic weapons. The
principle irony is this. To my knowledge, Mexico has the toughest gun
control laws in the Western Hemisphere."
South AfricaGun Free SA Wants Gun Ownership IllegalRegan Thaw An organization called Gun Free South Africa is urging the South
African Government to expand aggressive new restrictions on civilian
firearms ownership into a total ban.
IndustryIntroducing 'Keane Insights,' NSSF's Government Relations BlogPress Release "NSSF has launched a new blog focusing on public policy, legislation,
regulation and legal issues affecting the firearms industry. Titled
'Keane Insights' after its author, NSSF Senior Vice President and
General Counsel Lawrence G. Keane, the blog is a direct response to
member requests for more government-relations-based communications." 2010 SHOT ShowBoge Quinn Here's coverage of the entirety of the Firearms Industry's 2010 SHOT
show, held January 18th through the 21st in Las Vegas.
Anti-gun movementContact Starbucks And Protect The Right-To-CarryPress Release The Brady Campaign is launching an effort to convince Starbucks to
forbid concealed carry by licensees at its establishments. NRA: Brady Campaign's Contradiction on Concealed GunsWayne LaPierre Having previously acknowledged the obvious fact that civilian
concealed carry has posed no problem, the Brady Campaign's effort to
pressure Starbucks into forbidding it is a clear contradiction of their
stated view. 'Conservative' Bill O'Reilly Supports Gun Confiscation in EmergenciesDavid Codrea Citing the need of authorities to regain control of a city in crisis,
Fox's Bill O'Reilly supported disarming the population in the aftermath
of an upheaval. Codrea points out that at such a time the population
would be in the most need of their arms. Gun Owners Against Illegal MayorsInformational Web Page This organization has done a thorough job of amassing considerable
evidence that NYC Mayor Bloomberg's 'Mayors Against Illegal Guns'
organization contains enough convicted or alleged felons to justify its
investigation as a criminal conspiracy. Gun Rights Advocates Target California Detective Following Facebook PostsJoshua Rhett Miller "Gun rights advocates have a California police detective in their crosshairs after he apparently posted comments on Facebook advocating that 'open carry' supporters should be shot." MediaSmuggled Guns used in Cartel HitsEd Lavandera A network of straw purchasers has been illegally obtaining weapons in
Texas for use by the Mexican drug cartels. The One Thing That's Missing...David Codrea Codrea succinctly points out that the objectives of 'Lost and Stolen'
laws will not be met unless criminals comply with the legislation by
reporting themselves and surrendering the purloined weapons. CNN's Lavandera Misrepresents Illegal 'Lost & Stolen' Gun OrdinancesMatthew Balan "CNN's Ed Lavandera [author of the article above] misrepresented
'lost and stolen' gun ordinances passed by municipalities in
Pennsylvania as 'straw purchase ordinances' on Wednesday's American
Morning, and hinted that gun rights supporters were somehow extreme." Is CNN Report on "Legal Guns that Go Bad" Misleading?Mark Berman Here is a summary of Newsbusters' ongoing criticism of CNN's efforts to claim that a large, organized network of illegal gun traffickers is funneling large amounts of weapons from the U.S. into the wars of the Mexican drug cartels. FederalNational 'Take a Gun Hiking' DayHoward Nemerov Howard Nemerov offers his useful perspective and insights on the
Federal law now allowing legal concealed carry, subject to state law, in
the National Parks. National Parks are Safer with Concealed Carry LawHoward Nemerov "Thanks to a new federal law beginning February 22, people who can
legally carry concealed handguns according to state law can also carry
within national parks and forests in that state, too. While this may
help protect visitors from the parks' burgeoning crime problem, the
story of this law's journey through Congress provides a lesson in
campaign contributions and anti-liberty special interests." StatesCaliforniaConcealed Weapons Permit Violations Rare, Police SayC. D. Michel "The lack of available micro-stamping technology has not deterred the
Department of Justice from proceeding with promulgating regulations for
the law's implementation. In other words, these proposed regulations are
completely unnecessary at this time. It is on this basis, among others,
that the NRA is objecting to the DOJ commencing with the rulemaking
process on this matter." The text of the NRA's letter is here: http://tinyurl.com/y8gkh4b
ColoradoColorado Senate News: Republicans back CSU Students in Struggle to Preserve On-Campus Concealed Carry PolicyColoradoSenateNews.com "A Republican lawmaker is outraged that Democrats killed a bill that
would have declared that any firearms made and retained in Colorado are
beyond the control of Congress." CSU Approves Separate Concealed-weapons Policies for Two CampusesMonte Whaley "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."
DelawareHouse Bill 357 Introduced to Overturn Public Housing Gun BansLee Williams "A bill that would stop the state’s public housing authorities from
banning guns was introduced today, co-sponsored by a bipartisan group of
more than two-dozen state lawmakers."
MarylandAssault Weapons Ban Bill DroppedDouglas Tallman "The sponsor of a proposal to ban assault weapons withdrew his bill
from the Maryland Senate this week, acknowledging the measure lacked
enough support to get the legislation out of committee."
TennesseeBill Would OK Handguns while Bowhunting in Tenn.The Associated Press(TN) "Handgun permit holders in Tennessee would be able to carry their
weapons while big game bowhunting under a measure approved by the House.
The bill sponsored by House Democratic Caucus Chairman Mike Turner of
Nashville passed 85-3 on Monday. The companion bill is waiting to be
scheduled for a vote on the Senate floor." CasesMandatory Minimums and Automatic Weapons: United States v. O'Brien and BurgessAnna Christensen "In United States v.
O’Brien and Burgess, the Court will once again enter the tangled
field of sentencing law, this time to interpret 18 U.S.C. § 924(c),
which criminalizes the use or carrying of a firearm in the commission of
a crime of violence or drug trafficking and which has been the subject
of several decisions since it was amended in 1998 to clarify that it
extended to 'mere' possession of a firearm. The case involves the
sentence enhancement for the use of a 'machinegun'..." If You Brandish a Gun in Self-Defense in Kansas, You’d Best Shoot ItEugene Volokh The Kansas State Supreme court has held, under its 2009 Hendrixdecision,
that a man who merely brandished a firearm in what he believed was a
dangerous situation was unable to use the self-defense defense he could
have used had he fired the
weapon. State of Washington v. Christopher William SieyesJustice Richard B. Sanders The Washington State Supreme Court held that the Second Amendment
rights of law-abiding Americans are applicable to the states through the
14th Amendment. Judge's Ruling Ends Seattle Parks Gun BanErik Lacitis "The rule banning firearms in Seattle parks was tossed out Friday by King County Superior Court Judge Catherine Shaffer, who said the city cannot pre-empt state law." Research & ScholarshipSecuring Civil RightsStephen P. Halbrook Now with the urgency of the McDonald case,
the Independent Institute is making copies of Securing
Civil Rights available
in a new, inexpensive, reader-friendly edition." Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876Stephen P. Halbrook "Now, you can donate to NRA-ILA and get the top source on the
subject: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms,
1866-1876, by Stephen P. Halbrook. This hardcover, 230-page book has
been a key source of primary materials for scholars and attorneys
challenging the Chicago handgun ban. Now out of print, copies cost $75
or more online, but you can receive your copy, with no shipping charge,
for a $25 donation to NRA-ILA." Heller, the Second Amendment, and Reconstruction: Protecting All Freedmen or Only Militiamen?Stephen P. Halbrook Halbrook responds to the District of Columbia's use of his
scholarship in their Heller brief
about the efforts of the Southern states to disarm former slaves in the
aftermath of Emancipation. Halbrook further enlarges upon his
explanation of his conclusion that on the Federal level the civil rights
of the Freedmen very much included the right to keep and bear arms. Bans on Discharging Firearms, Without a Self-Defense ExceptionEugene Volokh Volokh here discusses how a claim of self-defense can offer an
explicit or implicit defense against other legal violations incidental
to the action defended by a claim of self-defense. A Shot at Mens Rea in Aiding and Abetting Illegal Firearms Possession Under 18 U.S.C. § 922(G)Stephen R. Klein This Note explains the current circuit split regarding aiding and
abetting illegal firearm possession and argues that the split should be
resolved legislatively by restricting § 922(g) charges via § 2(a).
Possible judicial remedies are also discussed. Considerations include
how the U.S. Supreme Court would resolve the current circuit split: the
Court could either apply its reasoning in Staples
v. United States 9 to §
922(g), or adopt its formulation of aiding and abetting in Nye
& Nissen v. United States, or it could do both. Ultimately, the
current disparity is best resolved by Congress, for it does not appear
that aiding and abetting will ever find uniform judicial application
within criminal law. Target: Law EnforcementTom Diaz, VPC Senior Policy Analyst More than one out of four assault weapon incidents involve police,
says a study by the Violence Policy Center (VPC). Based on reports in
the news of assault weapons incidents over two years the group said the
study is a snapshot of the effect of Americas laissez- faire policy
toward these deadly military-style weapons. The study found that the
percentage of assault weapons incidents involving police rose
significantly between the two periods studied: March 1, 2005 to February
28, 2006, and March 1, 2006 to February 28, 2007. Police were involved
in 29 of 117 incidents (24.8 percent) in the first period and 35 of 118
incidents (29.7 percent) in the second period's increase of 20.7
percent. The study also found that shots were fired from assault weapons
(other than police weapons) in three out of every four reported
incidents involving police, and that gangs were reported to be involved
in one out of five of the reported incidents involving assault weapons.
At least one victim was killed in 86 out of 235 reported incidents (36.6
percent). A total of 115 deaths were reported for the 86 incidents. Ducking the Bullet: District Of Columbia v. Heller and The Stevens DissentDavid T. Hardy Hardy here offers a critique of Justice Steven's dissent in Heller. The Potentially Expansive Reach of McDonald V. Chicago: Enabling the Privileges or Immunities ClauseMichael Anthony Lawrence Lewis makes a proposal that all restrictions on liberty be judged
according to a "reasonable time, place, and manner" standard. Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?Gerard N. Magliocca Today, the conventional wisdom is that the Slaughter-House cases
asserted that the Privileges or Immunities clause does not protect the
Bill of Rights. But until 1900, the conventional reading—including in
Supreme Court opinions—was that the case only rejected application of
procedural rights to the states. The idea that SH rejects the
application of substantive rights (e.g., freedom of speech, right to
keep and bear arms) came during the progressive era, as the Court and
the rest of the legal elites panicked about labor unrest, and decided
that states should have wide latitude to suppress dissent. The
historical evidence supports using PI to make the Second Amendment apply
to the states. Privileges, Immunities, and Substantive Due ProcessTimothy Sandefur Slaughter-House's most
egregious error was in nullifying the principle of "paramount national
citizenship" which lay at the heart of the ideology of the 14th
Amendment’s advocates. Revitalizing the Privileges and Immunities clause
should not lead to the abandonment of "substantive due process." This
article provides the best collection of citations and sources in defense
of the theory that, long before the 14th Amendment was written, it was
widely understood that the principle of "due process" substantively
prohibited certain arbitrary acts by legislatures (e.g., giving A's
property to B) even if the proper procedures were followed. Citizen Gun Rights: Incorporating the Second Amendment through the Privileges or Immunities ClauseKenneth A. Klukowski Klukowski argues that Slaughter-House should be affirmed, and that the Second Amendment can be protected against state/local infringement by the Privileges and Immunities clause, because the Amendment fits under Slaughter-House's restrictive definition of rights of national citizenship which are created by the Constitution. Makes policy arguments that PI is superior to Due Process for protection of Second Amendment rights, since the former applies only to citizens. He goes on to warn that overrulingSlaughter-House could provide a future Court with too many opportunities to fabricate novel "rights" out of the Privileges and Immunities clause. Keeping Pandora’s Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the StatesIlya Shapiro & Josh Blackman These authors discuss a hypothetical future reflecting the repeal of
the Slaughter-House decision,
which they argue at length would re-affirm the protections of the
Constitution from abuses by the States as well as the Federal
government. This newsletter is compiled with help from Dr. Rob S.
Rice. For more on this inferential, yet illative individual, see here: Al Qaeda delenda est!
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