Tag: second amendment

This Week in “Gun Disgust”: Social Services Visits New Jersey Man’s House Because of a Facebook Picture of His Son Holding a Gun

A picture of Shawn Moore’s 11-year-old clad in camouflage and holding a scary-looking gun prompted New Jersey’s Department of Children and Families to visit his house for an “inspection,” according to Moore. As reported by the Associated Press:

The elder Moore was at a friend’s house when his wife called, saying state child welfare investigators, along with four local police officers, were at the house, asking to inspect the family’s guns.

Moore said he called his lawyer Evan Nappen, who specializes in Second Amendment cases, and had him on speaker phone as he arrived at his house in Carneys Point, just across the Delaware River from Wilmington, Del.

“They said they wanted to see into my safe and see if my guns were registered,” Moore said. “I said no; in New Jersey, your guns don’t have to be registered with the state; it’s voluntary. I knew once I opened that safe, there was no going back.”

The Department of Children and Families has not confirmed that the Facebook picture was the reason for the surprise “inspection,” but a spokeswoman did comment that it is “important to note the way an investigation begins is through the child abuse hotline. Someone has to call to let us know there is a concern.” 

Yesterday, I argued on FoxNews.com that the gun debate is really a culture debate. Two cultures are emerging in America. One culture respects guns as important tools in the hands of responsible citizens. The other culture is disgusted by guns. It is becoming increasingly difficult to bridge the gap between those cultures in order to devise reasonable and effective gun laws that respect citizens’ Second Amendment rights. 

Clearly, Mr. Moore is in the former camp and has taught his son how to responsibly use firearms. Appearing on “Fox and Friends” this morning, Moore’s son Josh said he’d been shooting guns since he was five, that he likes to hunt, and is a “pretty good shooter.” 

Yet many who are animated by “gun disgust” believe keeping firearms in the home is tantamount to child abuse. But the actual number of accidental firearm deaths of children are usually grossly overstated. In 2010, the CDC reported 62 deaths by accidental firearm discharge for children between 0-14 years old. (You can check the numbers yourself here.)

While each and every one of these deaths is undeniably tragic, the number is far less than deaths due to accidental drownings (726) or bicycles (approximately 100 in 2006). Yet I’m sure social services would not have visited Mr. Moore’s house if he had put up a picture of Josh on a new ten-speed. In fact, for an instrument with such potential for lethality, the number of accidental gun deaths for children is remarkably low. Even seemingly innocuous things, such as adult beds, can kill dozens of children per year. Between 1999-2001, 41 children under five died after being caught between a mattress and a wall or headboard. Nevertheless, during the Clinton administration the Department of Justice ran a series of ads designed to frighten parents about the dangers of unlocked guns, claiming that “an unlocked gun could be the death of your family.”

Those numbers are unlikely to change the minds of the gun-disgusted. As in many areas of public policy, facts often matter less than we’d like to believe. 

Guns and the Commerce Clause: On the Way to the Supreme Court?

Nearly two years ago, I wrote about an intriguing Commerce Clause case involving the Montana Firearms Freedom Act.  To wit, Montana enacted a regulatory regime to cover guns manufactured and kept wholly within state lines that was less restrictive than federal law.  The Montana Shooting Sports Association filed a claim for declaratory judgment to ensure that Montanans could enjoy the benefits of this state legislation without threat of federal prosecution.  The federal district court ruled against the MSSA.

On appeal to the Ninth Circuit, Cato joined the Goldwater Institute on an amicus brief, arguing that federal law doesn’t preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which is a state-specific market distinct from any related national one.

The lawsuit’s importance is not limited to Montana; a majority of states have either passed or introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

Well, after much delay – in part due to the Ninth Circuit’s waiting for Supreme Court instruction on the Commerce Clause in the Obamacare litigation – MSSA v. Holder finally saw oral argument two weeks ago.  The Goldwater Institute’s Nick Dranias, who was the principal author of our joint brief, was able to get 10 minutes of argument time and sent me this report afterwards, which I reprint with his permission:

Some Pictures for Michael Moore

This week, Michael Moore took to his blog to ask someone to publish the assuredly horrific pictures of the Sandy Hook Elementary School crime scene. Like the horrific pictures of 1955 lynching victim Emmett Till, whose mom wanted the photographs published, or the heart-wrenching images of the Vietnam War, Moore believes that the pictures will finally galvanize people to meaningful gun control. He writes:

I believe someone in Newtown, Connecticut—a grieving parent, an upset law enforcement officer, a citizen who has seen enough of this carnage in our country—somebody, someday soon, is going to leak the crime scene photos of the Sandy Hook Elementary School massacre. And when the American people see what bullets from an assault rifle fired at close range do to a little child’s body, that’s the day the jig will be up for the NRA. It will be the day the debate on gun control will come to an end. There will be nothing left to argue over. It will just be over. And every sane American will demand action.

This is a horrible suggestion, obviously. I do, however, have some pictures for Michael Moore:

Sgt. Castellano

Jeanne Assam

The first picture is of Sgt. Lisa Castellano. Two days after the Newtown tragedy, Sgt. Castellano was off-duty and working security at a movie theater. A gunman walked in and began firing. She stopped the gunman after he had shot one man.

The second picture is of Jeanne Assam. In 2007, Assam stopped what could easily have been the largest mass shooting in U.S. history at the New Life Church in Colorado Springs. A severely deranged man, who had already killed two people at a youth mission in northern Denver the night before, entered the church with the same armament as Newtown killer Adam Lanza and began shooting. At the time, approximately 7,000 people were in the church. Assam stopped him after he had killed two and wounded three.

Senate Judiciary Committee Hears from Cato on Gun Policy

Yesterday, the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Human Rights – the same one where I testified regarding campaign finance post-Citizens United last summer – held a hearing, titled “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.”  In the lead-up to the hearing, the subcommittee’s new ranking member, Sen. Ted Cruz (R-TX), solicited written testimony from Cato on the subject.  He got it in spades.  Here are the Cato-affiliated scholars who submitted materials:

  • Associate policy analyst David Kopel provided an excellent summary of his decades of research on firearms law and policy.
  • Senior fellow Randy Barnett outlined the constitutional considerations that must attend any discussion of gun regulation.
  • Chairman Bob Levy attached a short cover letter to his timely National Law Journal article that critiques the current state of play.
  • I sent in an essay about the right to keep and bear arms generally that incorporates two blogposts and five op-eds by Kopel, Levy, Trevor Burrus, and myself.

If anyone else on Capitol Hill needs a full-court press on an issue ahead of a hearing, you know where to find Cato.

The Second Amendment Protects Both Keeping and Bearing Arms

Even before its recent enactment of ill-advised and (at least partially) unconstitutional gun-control measures, New York was no stranger to draconian restrictions on the right to keep and bear arms. The Empire State, like most states, requires a license to carry a handgun outside of one’s home, but differs from many by requiring prospective licensees to show “proper cause” before obtaining a license. State officials have broad discretion in finding such proper cause, which for non-celebrities typically requires proof of extraordinary personal danger documented by threats to one’s life — effectively leaving criminals, bodyguards, and retired law enforcement officers as the only armed civilians in public places.
 
Unable to make such a showing and thus denied licenses, a diverse group of New Yorkers, represented by Alan Gura — who successfully argued District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) at the Supreme Court — filed suit in federal court challenging the constitutionality of the licensing scheme. Both the district court and the U.S. Court of Appeals for the Second Circuit upheld the law after purportedly applying “intermediate scrutiny,” which allows a challenged statute to survive only if it is “substantially related to the achievement of an important governmental interest.”
 
But the Second Circuit gave short thrift to the Second Amendment, treating New York’s restrictions as garden-variety legislation rather than measures infringing on a core constitutional right. In legal terms, the court effectively employed “rational-basis review,” which simply requires legislation to be rationally related to a legitimate government interest. Instead of requiring the state to show that its restriction on carrying firearms for basic self-defense has some concrete connection to public safety and crime prevention, the court deferred to the political branches by finding that assessing “the risks and benefits of handgun possession” and creating licensing schemes are “precisely the type of discretionary judgment[s] that officials in the legislative and executive branches of state government regularly make.”
 
The plaintiffs have now asked the Supreme Court to review that ruling and provide guidance to all lower courts regarding how to evaluate laws in tension with the Second Amendment. Today, Cato filed a brief supporting that petition. Like any constitutional right, the Second Amendment has no force absent a clear jurisprudential doctrine that ensures its enforcement. While the Second Circuit has applied a very deferential standard, other courts have expounded different doctrines since the Supreme Court ruled in Heller that the Second Amendment protects an individual right. For example, the Chicago-based Seventh Circuit demands that a restriction on Second Amendment rights satisfy a heightened level of scrutiny that requires “an extremely strong public-interest justification and a close fit between the government’s means and its end.” Given divergent lower-court rulings and the current political climate, the Second Amendment is in dire need of a clarified and robust standard of review — much like that afforded other constitutional rights, requiring federal and state governments to prove that laws infringing those rights are narrowly tailored to serve a compelling interest. Whatever the standard of review may ultimately turn out to be, Kachalsky v. Cacacse provides an excellent vehicle for the Supreme Court to pronounce it — and to show that the Second Amendment protects more than the right to keep a gun in one’s home.

D.C. Treats Celebrities Better Than Veterans, Illustrating the Absurdity of Gun Laws

Last month, D.C. attorney general Irvin Nathan announced that he would not be prosecuting David Gregory for displaying an empty ammunition magazine on his national TV show Meet the Press—even though NBC knew ahead of time that this action would violate D.C. law. In a letter to NBC, Nathan admonished Gregory for knowingly flouting the law, but said he decided to exercise “prosecutorial discretion” and not pursue a criminal case. “Prosecution would not promote public safety in the District of Columbia, nor serve the best interests of the people,” Nathan wrote.

In the Washington Post story about this episode, I was quoted as calling Nathan’s decision “a wise use of prosecutorial discretion” but that the episode “illustrates the absurdity of some of these gun laws.”  My position apparently paralleled that of the NRA—even though Gregory had waved the illegal magazine in front of the group’s executive VP, Wayne LaPierre—but “thousands of gun advocates” signed a White House petition calling for Gregory’s arrest because he ought to be treated the same as anyone else.

Indeed, a friend soon pointed out to me that D.C. authorities were not treating people equally: Last summer, Army Specialist Adam Meckler, a veteran of the Afghanistan and Iraq wars, was arrested and jailed for having a few long-forgotten rounds of ordinary ammunition—but no gun—in his backpack in Washington. Meckler violated the same section of D.C. law as Gregory did, and both offenses carry the same maximum penalty of a $1,000 fine and a year in jail.  [H/t: Jason Epstein]

Well, that’s disgusting, and D.C. authorities ought to be ashamed of themselves. But the correct response isn’t to waste taxpayer dollars on prosecuting David Gregory, but rather to not prosecute the Adam Mecklers of the world. 

Now, I’ve never been a prosecutor or even practiced criminal law, so it could well be that it’s outside the ethical bounds of discretion not to charge someone who so brazenly flaunts the law as Gregory and the NBC producers did. But if incidents like these doesn’t make people realize that it’s lunacy to criminalize, as a strict liability offense, no less (meaning that your knowledge or mental state is irrelevant), the mere possession of magazines, bullets, and other gun-related accoutrements (without even getting to an “assault weapon” ban, etc.), then nothing will. A magazine is a metal box with springs, of which there are hundreds of millions in the country.  A bullet is a piece of metal that, in the absence of a gun, is less deadly than a rubber band. It’s people who insist on demonizing such objects that lend creedence to those on the other side who believe that any gun regulation is a step toward confiscation and tyranny.

Let me be even clearer: Criminalizing the possession of a magazine or bullet is as extreme as legalizing the private ownership of nuclear missiles. The idea that celebrities should be treated no differently than anyone else is an important one to draw from the David Gregory incident.  But it’s even more important, at least in the context of our ongoing discussion over gun policy, to understand that putting stupid laws on the books doesn’t make us any safer and indeed draws resources away from actions (like investigating, prosecuting, and preventing violent crime) that do.

Reading the Washington Lawyer Magazine

The flagship publication of the DC Bar Association is the Washington Lawyer.  The December issue reviews a new book by legal journalist Jeffrey Toobin, The Oath.  Here’s an excerpt from the magazine’s regular reviewer, Ronald Goldfarb:

What is clear is Toobin’s ability to tell intriguing stories, and also to present sound overviews of important cases and the jurisprudence they represent without dumbing down the legal analysis. An example is his story behind the notorious District of Columbia v. Heller case dealing with gun control. I know the inside story from the man behind the case (not Dick Heller, the selected plaintiff, but Robert Levy, the chair of the board of directors of Cato Institute who dreamed up the case and managed its route to new constitutional law), and Toobin’s story rings true. Toobin’s characterization of the politics, history, and constitutional law surrounding this very important decision is smart and informative. His conclusion that Justice Antonin Scalia’s majority opinion was “an improvisation designed to reach a policy goal” is ironic. Scalia argues that the Constitution is “dead,” not a living document, and Toobin shows how perverted Scalia’s theory is by using the justice’s own words and reasoning in Heller. Rather than an example of his repeated preaching that the Constitution is “textualist” and “originalist,” Scalia’s opinion demonstrates that the Constitution is what the justices say it is: always dressed up in chameleonic jurisprudence to suit the justices’ predilections and to reach their political conclusions. (Bush v. Gore is a classic example.)

There you have it: A sound overview without dumbing anything down.  Cato chairman Bob Levy “dreamed up” an idea about some constitutional right to keep and bear arms. Then Justice Scalia said, “My predilections match your dream!”  Scalia then cobbled together some nice-sounding arguments and now America has to  live with this darn Heller precedent.

Mr. Toobin, the book author, makes the claim that Scalia was once a “conservative intellectual” but is now a “right wing crank.” The book reviewer, Mr. Goldfarb, then informs us that Toobin’s treatment of the justices is “quite balanced.”  (I know you don’t believe me—so go read it yourself.)

For a quick blog post, suffice it to say that Scalia was not alone on this. Four other justices agreed with his conclusion in Heller. I would also note that distinguished liberal scholars—Sanford Levinson, William Van Alstyne,  and Nat Hentoff, to name a few—hold similar views of the Second Amendment.

For more on the Heller case and the Second Amendment, go here and here.

For another look at the worldview of establishment liberalism, go here.