Dave Kopel's Second Amendment Newsletter
is based at the Independence Institute, afree-market think tank
in Golden, Colorado.
Delivery of this newsletter comes courtesy of
the Second Amendment Foundation, in Bellevue, Washington.
Dave phones Cam Edwards in this YouTube Video to discuss the implications of the elections, for Colorado and beyond.
Dave here provides a state-by-state scoring of the election results as known at the time of posting.
Dave's predictions and assessments of the then-upcoming vote's effects in the U.S. House of Representatives are worth a look back in retrospective of the known results.
Here's the companion piece to the above, discussing the potential implications of the vote in the U.S. Senate.
"Democrats constitute an indispensible part of the pro-Second Amendment majority of the current Congress. Without the NRA's strong working relationship with so many Democrats, 2009-10 would have seen the enactment of destructive legislation for gun rights, rather than the constructive legislation which has become law."
Dave here makes the point that the National Rifle Association must necessarily work across party lines to fulfill the organization's primary goal of preserving the Right to Keep and Bear Arms in the United States.
"When Ronald Reagan first ran for elective office, Governor of California in 1966, the opposition attempted to tar him as an extremist. Reagan was running against incumbent Governor Pat Brown, father of the 2010 Democratic California gubernatorial nominee Jerry Brown. Notwithstanding the extremist charges, Reagan won the election, and served two terms as California Governor, and then two terms of President of the United States. Let's take a look at that the use of the extremism issue in 1966 campaign."
"Peruta v. San Diego is one of several cases challenging sheriff misapplication of California's concealed handgun carry licensing statute. The case features Chuck Michel as lead attorney for plaintiffs. The case does not assert that California's statute requiring a license to carry a concealed handgun for protection is unconstitutional. Rather, the argument is simply that the statute specifies that licenses should be issued to qualified applicants (training, good moral character) who have 'good cause.' Pursuant to Heller, lawful self-defense is not only good cause, it is the best possible cause. The case has already survived a motion to dismiss. Along with Prof. John Eastman, I filed an amicus brief in the case on behalf of the Independence Institute, the Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:
America's First Freedom
Kopel interviews Halbrook about Halbrook's career, and reviews his new book on the 14th Amendment.
David B. Kopel, Paul Gallant & Joanne D. Eisen
America's First Freedom
"Simply put, the U.N. threats to your Second Amendment rights are intensifying, and the Obama administration is making the problem worse. Now is no time to let down your guard against the U.N."
"Reichskristallnacht was 72 years ago. Stephen Halbrook's 2009 article in the St. Thomas Law Review details the close connection between the disarmament of the German Jews and what came next."
Puerto Rico's new laws, ostensibly to bring the territory into compliance with Heller, contain requirements for shooting ranges to collect data upon the type and quantity of their users' ammunition. Another law limits range users' target practice to five hundred rounds per year. Both are extravagantly unconstitutional.
The Finnish government has raised the age for the purchase of handguns, shortened the duration of licenses to own firearms, and required psychologists to inform the police if they believe their patients are unfit to own a firearm.
"While fewer and fewer hunting licenses have been renewed each year for the past 10 years and no new licenses are granted at all, the sport could disappear entirely if a bill by the Environmental Protection Ministry passes into law."
"Despite laws imposing strict restrictions on gun ownership in Kuwait, firearms are openly on sale to unlicensed buyers at the Friday market in Shuwaikh, where anyone with the money can get hold of a handgun or hunting rifle for as little as KD30." The amount is roughly $100 USD.
"A much-touted federal effort to keep U.S. firearms out of the Mexican drug wars is unwieldy, mismanaged and fraught with 'significant weaknesses' that could doom gun smuggling enforcement on the border to failure, a U.S. Justice Department inspector general's review concluded yesterday, says the Los Angeles Times. Federal Bureau of Alcohol, Tobacco, Firearms and Explosives agents focus only on small gun sales and do not share information with law enforcement officials on both sides of the border, the review said. An effort to trace U.S. guns in Mexico too often comes up short because of missing data and the lack of U.S. training for Mexican police, it found."
"Searches of vehicles crossing into Mexico are yielding few weapons in what U.S. officials concede is a frustrating effort to slow the flow of guns to violent Mexican cartels operating across the U.S. border."
"'These weapons have proven popular with violent criminals who have, in the past, been able to own and use them without having to undergo the rigorous background checks required for a firearms licence.' PCP air rifles have been used in two fatal shootings in this country, including the murder of Police Sergeant Don Wilkinson."
"The impact of the economic downturn has meant attempts to change the controversial law have become a low priority, the Countryside Alliance acknowledged. As the traditional start of the season gets under way today, the Alliance conceded it was keeping a low profile because it was foolhardy to make hunting a priority issue when country was just recovering from a recession"
"Proposition 109 would have made hunting and fishing on par with freedom of religion, free speech and the right to bear arms. It also would have given the Legislature exclusive authority to regulate those activities, although it could delegate rule-making to the state Game and Fish Commission."
"Providing constitutional protection to the right to hunt and fish became an issue because Arkansas has approved an animal cruelty law that allows prosecutors to charge the offense as a felony. State Sen. Steve Faris, D-Malvern, was a key backer of the proposal."
The voters of Kansas overwhelmingly approved a state constitutional amendment declaring a citizen's right to own guns for any lawful purpose.
"Legislators who added the hunting and fishing measure had argued the amendment was needed in case gun control supporters eventually try to restrict the sports."
"Sponsors of the ballot initiative said they wanted the right to hunt and fish embedded in the constitution where government couldn't infringe upon it."
"Many Blue Dog Democrats who strongly supported gun rights went down to defeat, but the Brady lobby is wrong to state they scored any victories for gun control in the election."
"'It's an enviable position for any group to be in," Cox said. "We have Republicans and Democrats fighting over who is more pro-gun and whose more pro-NRA. That's a great position for us to be in, and that's a great position for NRA members to be in.'"
A Phoenix Assistant City Attorney, Ted Mariscal, ordered a firm that had posted illuminated bus-shelter advertisements for a gun-safety program to remove them all. Mariscal when asked could not explain his criteria for removing the advertisements paid for by TrainMeAZ.com, a commercial joint-educational effort of the firearms industry in Arizona.
"Two gun rights groups have dropped a lawsuit against the Sacramento County Sheriff's Department and Sheriff John McGinness after authorities clarified that 'personal safety' is a sufficient reason to be issued a permit to carry a concealed weapon, according to a news release by the groups." Note the similarity of their settlement to Dave's amicus brief in Peruta v. San Diego above.
Florida's new governor-elect, Rick Scott, has voiced his support for an 'open carry' movement active in the Sunshine State.
"An investigation by the Illinois Policy Institute has revealed that the Illinois Department of Natural Resources (IDNR) is pumping the state's Pittman-Robertson Act funds into two state universities at Champaign and Carbondale." Fund from the Pittman-Robertson Act come from the license fees charged to sportsmen and are dedicated by the Act to the improvement of sporting resources in a given state.
Fourteen clergymen, members of a national group called "Heeding God's Call, a Movement to End Gun Violence" protested peacefully at a Baltimore Gun Shop, where they received a polite hearing and a firm refusal to adhere to the group's demands for restrictions on the shop's sales beyond those required by Maryland law. Note the name of the feature containing the story.
"Some lawmakers hope the McDonald v. Chicago decision -- which one Supreme Court justice predicted will spark a slew of lawsuits -- will loosen New Jersey's regulations at a time when it seems most necessary."
Volokh prints and analyzes and questions proposed new restrictions on the issuance of such permits in New York City. The proposed criteria for the denial of a civil right are indeed questionable.
"North Dakota voters soundly rejected a ballot measure that sought to ban private hunting ranches that charge hunters to shoot deer and elk behind high fences."
"Sewell and his church celebrated the patron saint of hunters and hunting dogs during Sunday morning's services by blessing hunters, their dogs and establishing the Guild of Saint Hubert, a Christian hunters group that promotes spirituality, safety and respect in the hunt."
"Pro-gun activists are careful not to equate the open-carry movement with the epic struggles of blacks and gays to win basic civil rights, but they see plenty of parallels."
German discusses the abrogation of open carry of firearms in Wisconsin, and prints a Wisconsin Circuit Court decision upholding that right.
"The Colorado Supreme Court will hear arguments on the legality of the University of Colorado's campus-wide firearms ban, the court's justices announced Monday. In June, the CU Board of Regents voted 5-4 to appeal to the state's highest court in an effort to overturn a Colorado Court of Appeals decision that CU violated state law by banning concealed weapons from its campuses."
"The question at hand is whether a state, in this case Maryland, can deprive an individual of the right to possess a weapon over a misdemeanor."
Oyez.org is hosting a summary and audio files of the case's arguments. The summary is here, the audio arguments are here as an MP3 file.
"The preponderance of the evidence standard in this case means, 'Better that 1 dangerously mentally ill person get a gun than 1 non-dangerous person be disarmed — but just a little better, so that on the other hand it's better that 9 non-dangerous people be disarmed than 10 dangerously mentally ill people get guns.' A clear and convincing evidence standard might be, 'Better that 3 dangerously mentally ill people get a gun than 1 non-dangerous person be disarmed.' What do you think is the proper ratio?"
In its first full opinion of the 2010-11 term, the Supreme Court on September 15 upheld longer prison sentences for carrying or using a firearm while trafficking drugs. Justice Ginsburg authored the 8-0 opinion, which affirmed rulings by lower courts against defendants whose drug trafficking sentence received five additional years due to the presence of a firearm.. The cases came from the U.S. Court of Appeals for the Third Circuit in Philadelphia and the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Certain federal courts had said the additional five years could not be added onto related sentences for federal crimes. Newest Justice Elena Kagan did not take part in the case because she had represented the U.S. government at the court before becoming a justice.
"The Constitution of Virginia was amended in 2001 to provide: 'The people have a right to hunt, fish, and harvest game, subject to such regulations and restrictions as the General Assembly may prescribe by general law.' Currently, ten states recognize hunting as a constitutional guarantee, and proposed amendments are pending in other states. The oldest, dating back to the American Revolution, sought to guard against royal privilege as practiced in England, while the newest, adopted in recent decades, seek to preempt hunting bans sought by 'animal rights' zealots."
"This article reflects on District of Columbia v. Heller and proposes a new footing and limit to the right to bear arms: a person's inalienable right to self defense. Self-defense is a natural right embedded in personhood and is antecedent to the social contract that sets up a state. This right consequently remains with the person following the establishment of the state and allows her to use proportional force necessary for resisting aggression. The right to bear arms derives from the constitutional right to self-defense, which merits protection under both the Ninth and Fourteenth Amendments. This instrumental nexus calls for a dynamic determination of the scope of the right to bear arms under the Second Amendment, along Heller's lines. The scope of the right to bear arms should be defined by an ordinary citizen's necessity to use arms in defending herself proportionally against criminals. This criterion will allow courts to deliver both predictable and balanced decisions that align with originalism."
"At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court's preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court's effectiveness, but also what response is best for the constitutional system as a whole when the Court's legitimacy is not at stake. The Court's recent decision in McDonald v. City of Chicago illustrates the practice of system-centered prudentialism. Judging from the concerns raised by several Justices at oral argument, especially Justice Scalia, members of the McDonald plurality appeared to reason prudentially in deciding to use Section One of the Fourteenth Amendment's Due Process Clause — and not its Privileges or Immunities Clause — to apply the Second Amendment to state and local governments. But the Court reasoned prudentially in substantial part because it was troubled about the consequences for the American constitutional system of opening up a Pandora's Box of new assertions of unenumerated rights, not because its own legitimacy was threatened."
"After a review of Second Amendment jurisprudence over the past 200 years, as well as a specific review of case law relative to the Massachusetts right-to-bear-arms and the corresponding regulation of gun ownership in Massachusetts, this article will establish that the likely level of scrutiny for challenges to gun control laws will be a "sliding-scale"review; that the Massachusetts Supreme Judicial Court will have to revisit its interpretation of the Massachusetts right-to-bear-arms clause and hold it to bestow an individual right; that the proposed Massachusetts one-gun-per-month law will be held to violate the Second Amendment of the United States Constitution and Article 17 of the Massachusetts Constitution; and, that the existing Massachusetts laws relative to owning a handgun, which require both a Firearms Identification Card (FID Card) and a License To Carry (LTC) permit, will be deemed unduly restrictive in violation of both the Second Amendment and Article 17."
"Predictably, the defensive gun culture is concerned with the legal ramifications of gun usage. Popular gun magazines are full of legal cautions by their columnists such as Massad Ayoob and with tales of defensive usage such as the American Rifleman's Armed Citizen column. Understanding these ramifications is important to gun users and legal professionals for a variety of reasons, and understanding how defensive gun usage affects others' views of gun users is equally important." This article is a full, cited, critiqued survey of legal issues that might turn up at trial after a self-defensive shooting.
"'Judicial restraint' and its counterpart 'judicial activism' are widely regarded as meaningless terms, useful primarily as rhetorical weapons with which to praise or condemn judicial decisions about which the speaker has strong feelings. The terms certainly are frequently used in that manner, but there may also be analytically distinct forms of judicial restraint to which different judges adhere. Academic commentators have articulated and defended various theories of judicial restraint, but my purpose here is to examine the debate 'at work,' so to speak, in an actual case. The Court's recent Second Amendment incorporation decision, McDonald v. Chicago, is an especially interesting example because strikingly different models of judicial restraint are adopted by subsets of the more conservative wing of the Court, and subtly different models are adopted by subsets of the more liberal wing. A close look at the opinions in the case suggests that each model has different strengths and weaknesses, but also that they are by no means created equal. Surprisingly, perhaps, the most radical sounding opinion in the case may on balance be the most restrained."
"Designed to collect annual data describing the number of inquiries made in connection with presale handgun checks and the number and basis for rejection of such inquiries. Data are collected directly from state agencies conducting background checks and from local checking agencies and include the number of firearm applications made to the agency, firearm applications rejected by the agency, and the reasons for rejection. Data collection procedures are adjusted to reflect the differing presale check procedures under the permanent system (which became effective on 11/30/98) and the interim period (02/28/94 - 11/29/98)."
"Welcome to Field & Stream's Rut Reporters site--the only one of its kind on the Internet. This is where you will get up-to-date reports, information, and insights about the stage of the rut in every region of the country. Our reporters have contacts throughout the country that will tell them what the bucks are doing RIGHT NOW--whether they're just forming bachelor groups, actively making scrapes, or recklessly chasing does. All that information--plus photos and videos--will be available right here. You'll be able to customize your hunting plan, for the day, week, or season based on what you find here."
Outdoor Lifehas recently launched a new website feature, OLWeather. The free service provides sportsmen with weather data from across the country and local to their area. There is are 5-day forecasts for hunters of deer and turkey, and anglers. The service predicts the best days for a given sportsman's success in a given area.
This newsletter is compiled with help from Dr.
S. Rice. For more on this effulgent, yet lachrimose individual, see
Al Qaeda delenda est!