Giving Judge Sotomayor a fair hearing

President Obama and I agree on one thing. It is high time that a Hispanic justice sit on the nation’s highest court. After all, as the fastest growing segment of the population, Hispanics are an integral part of the strong, diverse future I see for America and that diversity needs to be reflected in our courts.

However, Judge Sotomayor may not be the right nominee to fill that need.

While democrats have been quick to declare their unwavering support without fully understanding her judicial qualifications, conservatives have been equally quick to attack her while similarly ill-informed.

But many Americans, myself included, have reserved judgment while taking the time to evaluate Judge Sotomayor’s history. Since last Tuesday when President Obama announced Judge Sotomayor’s nomination to replace retiring Supreme Court Justice Souter, I have spent a great deal of time reading a number of her most controversial opinions. I have also studied the details of the accusations put forth against her by those who oppose her nomination.

Given my belief that a person’s position on gun rights is a reliable bell weather of their overall position on individual rights, I have obviously approached this research with a particular focus on her opinions about civil rights in general and gun rights in particular. Having done so, I believe that I have a unique perspective that my readers might find interesting. After all, as a libertarian and a law school student, I see many of the issues that have been raised quite differently than most partisans on either side.

In law school, the first step taken when addressing any legal problem is to identify the issue that is actually being presented. In many cases, the answers being given have little to do with the actual issue at hand and this may very well be the case here.

The issue before us, as I see it, is simply this … Whether or not Judge Sotomayor possesses those qualities necessary to adequately serve as a Supreme Court Justice?

This rather general statement then leads us to a second issue that must be answered before we can address the first. What are the qualities that are necessary for one to adequately serve as a Supreme Court Justice?

Of course, the specific issues that I feel are important will almost certainly not correlate with those of a partisan from either the left or the right, but I believe we can all agree that the single most important quality necessary for a Supreme Court Justice is an unwavering belief in both the word and spirit of the fundamental, individual freedoms embodied, recognized, and protected by the United States Constitution and a willingness to apply this belief to any problem before the High Court regardless of the outcome.

Now that we know the question we are trying to answer, let’s take a look at the criticisms that have been leveled against Judge Sotomayor.

Member of the National Council of La Raza

This is a criticism that all liberty loving individuals should be quick to denounce.

Would we sit still and allow the criticism of a pro-gun nominee because they were a member of Gun Owners of America or the National Rifle Association? Of course not! Neither should we allow Judge Sotomayor to be criticized for her membership in an organization that supports Hispanic civil rights issues.

If she is anti-gun, then we will oppose her based upon that unconstitutional belief, but it does us no good to oppose her because she too wishes to further the civil rights of Americans and immigrants.

Judicial Activist

One of the charges that have been leveled at Judge Sotomayor is that she is an “activist judge.” While this term is a broad one which may have multiple meanings, her detractors appear to be using it in reference to a statement she made in a speech at Duke University in 2005 in which she said that the courts of appeal are where policy is made.

Let me start by saying that on its face, this statement does not overly concern me. She did not say that the courts are where law is made which is how many are interpreting her statement. Contrary to the partisan rhetoric, the courts are often where public policy decisions are made. The key to understanding this is to understand what is meant by the term “public policy” in this context.

The proper constitutional role of the courts in our system of checks and balances is to interpret, enforce and validate the constitutionality of the law as passed by the legislature. When performing the interpretive aspect of their role, the courts often have to apply broadly worded laws to specific issues not addressed in the language of the statute and often times not even thought of by the legislators when the statute was drafted. The interpretation must comply with both constitutional concerns and the intent of the legislature.

This complex interpretive act, when done properly, may fairly be called the creation of policy. Judge Sotomayor should not be criticized for having accurately described the role that the appeals court plays in our judicial system.

However, because personal ideology and perspective are unavoidably intertwined in the way that jurists will perform this interpretation, this makes it even more important that we closely look at Judge Sotomayor’s history regarding gun rights.

Internet Urban Legends

On a lighter note, shortly after Judge Sotomayor’s nomination, an article, supposedly written by a Nathan Figler of American News, Inc, began to appear on various internet sites and was even repeated by Fox News.

In this supposed news article, Ms. Sotomayor is accused of having penned three legal theses while at Princeton Law including one entitled Deadly Obsession: American Gun Culture in which she was reported to have stated that the Second Amendment to the Constitution did not actually afford individual citizens the right to bear arms. She supposedly went on to make the amazing assertion that the passage of the Bill of Rights actually made individual ownership of firearms illegal.

There are any number of issues with this report, starting with the fact that the website given for American News, Inc is non-existent, Nathan Figler does not appear to be a journalist, Princeton Law only requires one thesis (although they do write several junior papers), and finally, the entire article seems to be written to cater to the worst fears of conservatives.

We have a number of real cases where Judge Sotomayor’s opinions about gun rights are made evident. We do not need to make ourselves look foolish by buying into urban legends.

The Real Problem With Judge Sotomayor

Having addressed the criticisms of Judge Sotomayor that I find unfair, we may now move on to discuss her rulings and commentary on gun rights and civil rights.

In Maloney v. Cuomo, Judge Sotomayor was part of a three judge panel which relied upon the holding in Presser v. Illinois to deny the petitioners request for incorporation of the Second Amendment against the states. In doing so, they noted that despite the landmark Second Amendment decision in District of Columbia v. Heller they still were bound by the ruling inPresser.

“We must follow Presser. Where, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'”

This is sound if unimaginative legal reasoning. The question remains how she would handle Maloney at the Supreme Court level. It is scheduled to be heard starting no later than June 26th and many have suggested that a seated Justice Sotomayor would need to recuse herself.

A greater concern from Maloney is the finding of the court that the bearing of arms is not a fundamental right. However, it bears noting that the ‘arms’ in question were nunchakus. While we would all agree that they meet the constitutional definition of arms, as we saw in Heller the nature and commonality of the arms can change the courts reasoning.

This however follows her role in an earlier panel ruling in Sanchez-Villar v. United States in which the court referred to United States v. Toner in stating that “the right to possess a gun is clearly not a fundamental right.” This is starting to look a lot like a trend with Judge Sotomayor.

And the First Amendment is also not safe in the presence of Judge Sotomayor. In a case that brought cries of protest from all corners of the political spectrum, Judge Sotomayor ruled in Doninger v. Niehoff  that speech in a student’s personal blog could justify the school in denying her access to extra-curricular activities, effectively reducing or eliminating her chances at getting into the college of her choice.

The Problem is Fundamental

Having spent a large portion of this article defending Judge Sotomayor from the unwarranted attacks that have been leveled against her, I must now point out that I still find her to be an unacceptable candidate for Supreme Court Justice.

I should point out that I am not the only civil libertarian who shares this opinion. And I am not talking about conservatives either. Paul Levinson at Salon.com has published a scathing attack on her qualifications based upon her decision in Doninger.

In short, Judge Sotomayor appears to be the antithesis of an activist judge. She seems to go out of her way to defer to legislatures and precedents, even if it requires a tortured reading of the United States Constitution in order to do so.

Her problem appears to be that, to her, nothing is fundamental when government wants to restrict it.

Posted in United States Supreme Court | 2 Comments

Are gun owners facing a ‘perfect storm’?

In the gripping novel The Perfect Storm, author Sebastian Junger describes the convergence of forces that lead to the brutal Halloween Gale of 1991. While the thought of facing such a storm at sea is terrifying enough by itself, the true terror of the phenomenon was the way that seemingly manageable weather patterns came together to make a monster that was far more powerful than the sum of the individual parts.

I was reminded of this phenomenon earlier this week when I visited the Drudge Report only to find that Senator Arlen Specter had switched parties. With that act of betrayal, Senator Specter set the stage for the Democrats to achieve a filibuster proof majority in the Senate should Al Franken be seated as the senator from Minnesota.

As I thought about the implications of this unexpected development, I began to fear that this might be the final factor that allows the anti-civil-rights forces to submerge gun owners in the fury of a perfect storm of gun control.

Why do I believe that this single act may be the proverbial flap of the butterfly’s wing that sets the storm in motion? The answer is simple. If the democrats achieve a filibuster proof majority in the Senate, then the precious system of checks and balances that allows our two-party system to protect the interests of all citizens begins to break down. The party in the majority need not listen to any voice other than their own.

So … what are the voices that now speak alone in the halls of power?

President Barack Hussein Obama

I would support action to ban the sale or transfer of all forms of semi-automatic weapons.” – Illinois State Legislative Election National Political Awareness Test (1998)

I support federal legislation that will ban citizens from carrying concealed weapons, except law-enforcement.” – Chicago Tribune (2004)

White House Chief of Staff Rahm Emanuel

Calls for Americans to lose all rights as an American if they are placed, without due process I might add, upon the secret federal “no fly” list.

Attorney General Eric Holder

I don’t think our Second Amendment will stand in the way of efforts we have begun and will expand upon.” – Wall Street Journal (April 2009)

Speaker of The House Nancy Pelosi

We want them [firearms] registered. We don’t want them crossing state lines.” – Good Morning America (April 7, 2009)

Is it any wonder that firearms and ammunition are flying off the shelves across the country? The memory of the Clinton era semi-auto and normal-capacity magazine ban is still fresh in the minds of gun owners and they sense the gathering storm in the air.

Posted in Firearm Sales, Gun Control, National Politics, President Obama | Leave a comment

Milwaukee Police Chief Flynn is bordering on irresponsible

Dave Ridley Educates an officer

Yesterday, Wisconsin Attorney General J.B.Van Hollen issued a long-awaited advisory memorandum making it clear that merely openly carrying a firearm, absent additional facts and circumstances, is protected behavior under Article I, § 25 Of The Wisconsin Constitution and will never justify a disorderly conduct charge absent other criminal behavior.

I join other gun rights advocates in applauding AG Van Hollen for issuing an opinion that was much needed in Wisconsin where, in recent months, multiple citizens had been harassed, charged and had their property confiscated for merely exercising their rights under the state constitution.

And while this memo was issued specifically to the state’s district attorneys, I presume that all of the chief law enforcement officers in the state are also being made aware of this memorandum. After all, it was the overzealous activities of certain departments such as West Milwaukee, Chilton and West Allis in harassing law-abiding gun owners that led to the need for the AG to address the issue.

Taxpayers in West Milwaukee and Chilton are already facing a federal lawsuit filed last week by Wisconsin citizen Jesus Gonzales, who was repeatedly harassed by these departments, jailed, had his property confiscated but was ultimately never charged.

The legal vehicle which allows a citizen to sue officials over such misconduct is 18 U.S.C. § 1983 which allows one to sue for civil rights violations that occur “under color of law.” The Supreme Court has defined what is required for an official to be said to be acting “under color of law” as having “exercised powers possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”  Clearly police and prosecutorial misconduct meet this definition and it is anticipated that Mr. Gonzales will ultimately prevail in his suit.

The good news for the taxpayers of Wisconsin is that, now that AG Van Hollen has issued this memorandum, there should be no further official misconduct or harassment of law-abiding gun owners leading to further waste of taxpayer dollars … Right?

Well … let’s not jump to conclusions. Another important issue that AG Van Hollen attempted to address in his memorandum was whether or not the simple act of openly carrying a firearm would justify a non-consensual detainment, by law enforcement, of a citizen. This is often referred to as a Terry Stop.

The memo answers this question in the affirmative and then goes on to point out that this would only be true however if the “totality of the circumstances” provides the officer with reasonable and articulable suspicion of criminal activity. Given the fact that Terry Stops are frequently misused by law enforcement, the structure and wording of the memo, while perfectly legally correct, may mislead law enforcement agencies into the belief that simply seeing a person open carrying will justify a non-consensual encounter.

As if to prove my point, in a Milwaukee Journal Sentinel article, Milwaukee Police Chief Edward Flynn said he would advise his officers to question anyone out in public with a gun. He went on to say that “If my officers see someone walking around the City of Milwaukee with a firearm openly displayed, it borders on irresponsible if I were to communicate to members of my community that they can carry that firearm with impunity.”

It sure sounds to me as if Chief Flynn is planning to utilize the power and authority conveyed upon him by the state of Wisconsin to enforce a “chilling effect” upon the rights of citizens by intimidating those who dare to exercise those rights. Now when I word it like that, I suspect that the Wisconsin civil rights attorneys reading this article get a twinkle in their eye and an unconscious desire to pull up their billing software.

It appears to me that Milwaukee is still a few judgments short of a complete understanding of the limits that a free society places upon the police power.

Posted in Abuse of Discretion, Abuse of Power, Law Enforcement Misconduct, Wisconsin | Leave a comment

Where officers fear to tread

Gangs bring anarchy to the streets

When arguing against citizen’s rights to be able to bear arms for self-defense, anti-gunners always propagate the myth that citizens do not need this right because the police will protect you. However, if you think about it logically, this is an extremely naïve position to take.

Look around you right now. Is there a police officer visible? Unless you work in a police station or courthouse, the answer is probably “No.” As I pointed out in a previous week’s article, the police, as much as they might wish otherwise, will almost never be there when someone is attacked.

But sometimes, a victim will get lucky and an officer, investigating an unrelated crime, will happen upon the scene while an attack is in progress.

This happened two weeks ago in Modesto California. An officer, responding to an unrelated call, saw a man being attacked by a group of assailants. When the officer and his canine partner went to the aid of the victim, a hostile crowd of up to 60 suspected gang members materialized and confronted the officer.

In the first few seconds of the confrontation, the officer was struck repeatedly and had bottles thrown at him. As a result, his portable radio was broken and he found himself living every officer’s nightmare and unable to call for backup. As the crowd surged forward, screaming at the officer that he was not leaving there alive, the officer drew his firearm and ultimately was able to escape the crowd with only minor injuries to himself and his dog.

In defending the officer’s decision to draw his firearm, Modesto police spokesman Sgt. Brian Findlen commented that “In a situation where you really feel that your life is in imminent danger, your options become very few.” That is definitely true for the unknown victim who, being a resident of California, was almost certainly denied even a chance to defend himself by the state’s draconian gun laws.

Oh … had you forgotten about him? The original victim I mean? Let’s see what happened to him

In the melee, the officer was understandably unable to help the man being attacked by the mob and he remains unidentified. Perhaps he was able to flee during the assault on the police officer or perhaps his body awaits discovery in some dingy back alley. In either case, it clearly puts an end to the myth that the police can save you.

In the aftermath, neighborhood residents and city officials describe entire neighborhoods where citizens barricade themselves in their homes after dark and where gangs own the streets without fear of authority. As gang violence and crime spread across the country in a seemingly unstoppable wave, can any logical person truly believe that it is a good public policy decision to force citizens to walk defenseless down streets where officers fear to tread?

Posted in Reasons to Carry, Self Defense, Trends in Crime | Leave a comment

Breaking News: Was Pittsburgh gunman ineligible to possess firearms?

Today in Pittsburgh, a severely disturbed individual named Richard Poplawski took the lives of three police officers.

Almost immediately, the media reports have focused on the gunman’s use of a “high powered” rifle and his fear that the Obama Administration was going to take away his gun rights.

But wait … the Pittsburgh Post Gazette reports that Poplawski was given a dishonorable discharge from the Marine Corp. If this is true, then his concerns about the Obama Administration’s gun control plans were moot because he had already lost his right to purchase or possess firearms.

U.S. Code Title 18 § 922(g) prohibits anyone with a dishonorable discharge from possessing or purchasing firearms.

This reporter is attempting to verify if Poplawski was actually dishonorably discharged. There is often confusion between a dishonorable discharge and a discharge under less than honorable conditions. But the differences in terms of consequences is significant.

A dishonorable discharge is given only when a member of the military has committed an extremely serious offense which is the equivalent of a civilian felony and has been convicted of such at a court martial proceeding.

WTAE Channel 4 Pittsburgh is also reporting that Poplawski was the subject of a protection from abuse order. If true and the protective order is still in effect, then this too made him an illegible possessor since The Violent Crime Control Act of 1994 modified U.S. Code Title 18 § 922(g) to also make it illegal to possess or purchase a firearm while subject to such a court order.

While the anti-gun movement will use this horrible tragedy as yet another opportunity to push their radical agenda, a pattern is clearly emerging of an individual who was not a law-abiding gun owner. This is simply another example of a disturbed individual who cared little for the laws he was breaking or the lives of his fellow man.

Our thoughts and prayers go out to the families of these brave men who gave their all for their community.

Posted in Trends in Crime | Leave a comment

Should blogging require government registration?

“Myths which are believed in tend to become true..” – George Orwell

The answer to the question presented in the title of the column is, of course, a resounding “No!” The chilling effect that this prior-restraint would place upon the blogger’s 1st Amendment rights would make such a requirement blatantly unconstitutional on its face. The same would be true if the government were to require priests, rabbis and imams to register before conducting religious services.

As a matter of fact, I imagine that just reading the title of this column was enough to infuriate most of my readers. After all, a belief in the inalienable sanctity of individual freedoms is the bond that brings us all together from our disparate worlds.

But this then begs the question of why so many Americans are willing to even consider the registration of gun owners. Even those who are not gun owners should fear the precedent that this would set. Since the landmark 2008 ruling in DC v. Heller, the courts have recognized what we have always known, namely that the right to keep and bear arms is a specifically enumerated, individual right, on par with freedom of speech and religion. Given this judicial environment, if we allow the government to impose a prior restraint upon the 2nd Amendment, then the 1st is no longer inviolate.

And it is worse than just a willingness to consider the idea of registration. As a firearms instructor, I can say without fear of contradiction that most gun-owners actually believe that there is already registration in place. This myth has its genesis in the instant background check paperwork which is required to purchase a firearm from a federal firearms licensee. The result? When I ask a room full of lifelong gun owners whether their guns are registered, they invariable chorus as one … “Yes.” In fact, they couldn’t be more wrong.

The following map illustrates exactly how few states actually have some form of firearm registration.

 

The important numbers to take away from the map are:

  • There are 40 states which have no registration whatsoever
  • Hawaii is the only state to require statewide registration of both handguns and long guns

So, why is it important that we debunk this myth? Because, as the above quote from George Orwell so aptly states, a myth which is believed long enough tends to become true. When gun owners, who already believe that there is registration, hear that a registration bill has been introduced in their state, they do not see the danger it represents.

Remember … every confiscation first begins with registration.

Posted in Media Views on The Second Amendment, Myths & Misconceptions | Leave a comment

‘From my cold dead hands’ and gun-owner apathy

If you will not fight for the right when you can easily win without bloodshed, if you will not fight when your victory can be sure and not too costly, you may come to a moment when you have to fight with all the odds against you, and only a precarious chance to survive. There may even be a worse case – You may have to fight when there is no hope of victory, and it will be better to perish than to live in slavery.” – Winston Churchill

Last week, Gun Rights Examiner David Codrea published a column entitled “Preaching to gun owners is not the same as preaching to the choir” in which he touched on one of the greatest threats facing gun owners today … ourselves!

His mention of gun owner apathy is a perfect lead-in to this weeks “Myths of the Gun” column.  The myth we will be debunking today is the belief that merely paying a yearly membership fee to the NRA guarantees the protection of our gun rights.

Now let me hasten to add that this is not meant to be an attack on the NRA.  I am an NRA life member as well as an NRA certified instructor and they are a powerful force for good and deserve our support.  However, they cannot win the day alone.  Active involvement by gun owners in the public policy debate is required every single day!

A perfect example of the problem we face was a conversation I had at a local gun club several years ago.  After shooting at the pistol range, I wandered up to the clubhouse.  A bunch of the members had just finished shooting skeet and the clubhouse was packed.  I was talking to a small group about the benefits of being active in state level organizations when one of the other members became quite agitated about the political discussion in the clubhouse.  The conversation went something like this:

Me

“We need to support these state level groups more.  If we don’t continue to fight for our rights in an organized fashion, the government will continue to nibble away at them until we no longer even have the right to own guns.”

Him

“All these gun rights groups are just out to get our money.  Anyway, the government will NEVER take away our guns.  They are just too many of us.

Me

“Look at what they have already done in places like Chicago, New York, New Jersey, California and DC. Don’t think it can’t happen here if people don’t get involved in the legislative process.  Wouldn’t it be better to join in the legislative fight now instead of letting it get to that point?”

Him

“Well, come the day they show up to take MY guns, they can have them bullets first. But until then, stop bothering me.”

At this point, a number of other members joined the conversation, and I allowed the intensity to die down.  But, afterward, as I was thinking about what was said, it became clear to me that this conversation was a microcosm of a serious issue facing the gun rights movement.

Simply said, the problem is that there is a great deal of political apathy among American gun owners.  Many of these politically apathetic gun owners diligently pay their NRA dues every year and expect that this will defeat all attacks on our freedoms at the federal and state level without any further involvement on their part.  When asked to support a state level organization, write a letter to the editor or to simply sign a petition, they become irritated and belligerent.

When these gun owners are pressed about their true dedication to the cause of gun rights, they invariably offer the infamous “… from my cold dead fingers” or “They can have them … bullets first“.  To these people, I would like to say, “Please stop with the clichés!  If your freedom means so little to you that you are not willing to fight for it politically, then do not insult my intelligence by claiming to be willing to lay down your life for it. ”

I am not trying to sound harsh, but I feel that this has to be said.  Activism works!  On the other hand, complaining and whining about a law that you were too lazy to fight politically does not.  It only reinforces the negative stereotypes about gun owners.

In closing, I should say that I do understand the sentiment behind the clichés.  I too will fight to the end to preserve our 2nd Amendment rights, but I will not wait until the battle has been lost to take the field.

Posted in Myths & Misconceptions, NRA | Leave a comment

The first thing you do is drag him inside

There is an old saying that “free” advice is worth exactly what you pay for it.  However, in the case of “free” legal advice, this is not exactly correct.  It actually has the potential to cost you a great deal and this is especially true where criminal law is implicated such as in the case of self-defense.

In fact, the right to use force in defense of self and others is one of the least understood legal concepts in American jurisprudence.  Unfortunately, most citizens erroneously believe that they do understand the concept based upon simplistic word-of-mouth anecdotes and advice.

Case in point, I will bet good money that you have heard the advice “If you shoot an intruder on the porch, the first thing you do is drag him inside”.  I have yet to meet someone who hasn’t heard this gem from an uncle, grandfather or cousin twice-removed.  The person giving the advice often seeks to imbue it with authority by swearing that it was a police officer, judge or attorney who shared this sage wisdom with them.

As a law student and as a self-defense instructor, I can say without fear of contradiction that this is almost certainly the single worst piece of legal advice that you have ever been given.  The parameters under which one may justifiably use deadly force are extremely narrow and do not depend for their validity upon occurring in any given place.  If you are justified in using deadly force upon your porch and then decide to avail yourself of this advice, the cloud this will place upon your actions will put you in a virtually indefensible legal position.

Think about it.  The logical implication of this anecdote is that the simple presence of an intruder in your home would provide legal justification for you to use deadly force against that intruder.  However, nothing could be further from the truth.  Imagine a scenario under which you and your family return home to find that a neighbor has become inebriated, broken into your house, and is passed out on your couch.  Based upon the advice embedded in the “drag him inside” anecdote, shouldn’t you have the right to use deadly force against this neighbor?  Of course not!  There is no threat embodied by the unconscious intruder and it is imminent threat that is the real legal touchstone where self-defense is concerned.

Having identified imminent threat as the threshold issue, I could then go on-and-on describing additional factors that will be considered in any legal case where a citizen has invoked self-defense as a justification for the use of deadly force.  I would then have to note that many of the factors vary significantly from state to state.  I could attempt to provide a broad summary that would be generally valid across the country by saying something like “Use of deadly force is only valid as an option of last resort when there is an imminent threat to life or limb, as judged from the viewpoint of a reasonable person, from which one may not safely retreat.”

However, this does not lend itself to a short and succinct statement that can be passed on at the watercooler by your cousin Bob and therefore, the “drag him inside” urban legend lives on.

How about we try to start a new saying?  “I will not accept legal advice from my cousin!”

Posted in Myths & Misconceptions, Self Defense | Leave a comment

An open letter to Senator Jim Webb and pro-gun democrats

Dear Senator Webb,

As both an honored veteran of the armed forces and one of the Senate’s most outspoken pro-gun democrats, your endorsement of the candidacy of Barack Obama carried great weight with gun-owning democrats and moderates.

After all, his voting record regarding gun-rights and the right to self-defense was abysmal and gun owners were justifiably hesitant to believe his sudden assertion that he “supported” the right to keep and bear arms.

It wasn’t until you, and other pro-gun democrats, began to speak out that the tide began to turn. And why wouldn’t it? Your voice means something to those of us who believe in the right to keep and bear arms. You have earned our trust, both by your service to our country and by your steadfast devotion to the 2nd Amendment. When you said that you trusted Barack Obama to “protect our right to keep and bear arms”, you extended the goodwill that you have earned onto him.

And you were not the only one. As Election Day drew near, pro-gun democrats closed ranks behind Senator Obama. In districts across America, trusted Senators and Representatives stood in front of their constituents and told them that Senator Obama would not ban their guns.

Consequently, on November 4th, 2008, Senator Obama, aided by the votes of millions of American gun owners, was elected President of These United States. Gun owners who had voted for America’s first African-American president were jubilant. They had taken part in an historic event and had done so without compromising their rights.

Or so they believed … But storm clouds were quick to form on the horizon. On February 20th, 2009, rabid anti-gunner Eric Holder was sworn in as President Obama’s Attorney General. And on Wednesday, February 25th, less than 45 days into the Obama presidency, Attorney General Holder held a press conference announcing plans for sweeping gun control proposalsand publicly shredded the trust that you had placed in “your friend” Barack Obama.

But he did more than that. By extension, he shredded the trust we have in you and your pro-gun counterparts. We had believed that we could count upon you to place ideals above party-politics. In looking back at that belief now, we can see how naïve it was. Make no mistake about it, we will not do so again.

If you wish to regain the trust that the Obama Administration so cavalierly cast aside, we will expect you to oppose these measures at every turn. We feel betrayed and the next election is not that far away.

Posted in President Obama, United States Congress | 1 Comment

Open carry is the 2nd Amendment

Recently, I was doing an interview with an NBC affiliate in Texas regarding the initiative to decriminalize open carry in that supposedly gun-friendly state. I was discussing the fact that, despite Texas’ nationwide reputation as a bastion of rugged individualism, they are in fact, out of line with the vast majority of states where individual gun rights are concerned.

During the interview, the anchor asked me the question “What do you say to those 2nd Amendment supporters who oppose open carry?” I have been asked this question before and had always answered it by talking about the political and public policy benefits of open carry. However, it suddenly occurred to me that the question, as asked, made absolutely no sense. My answer, paraphrased for brevity, was “If you are a 2nd Amendment supporter then you are, by definition, a supporter of open carry because open carry is the right that the 2nd Amendment is enumerating!”

I then went on to discuss the history of carry in the United States and the fact that while today, concealed carry is seen by much of the populace as synonymous with the right-to-carry, it is not, in fact, a right in most states (residents of Vermont may pat themselves on the back at this point). Rather, in the vast majority of states, concealed carry is held to be a state regulated privilege and this was affirmed by the majority opinion in the landmark 2008 ruling in District of Columbia v. Heller.

Additionally, the constitutions of several states bear out this historical view of the dichotomy between the right of open carry and the privilege of concealed carry.

New Mexico
No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons.

Montana & Colorado
The right of any person to keep and bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question; but nothing herein contained shall be held to permit the carrying of concealed weapons.

Idaho
The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person …

Louisiana
The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

Mississippi
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in the aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.

Missouri
That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

Kentucky
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties. Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

North Carolina
A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

Now at this point, I should rush to point out that I am an avid supporter of concealed carry laws and am not in any way downplaying their public policy benefits. The concealed carry movement that has swept the nation over the last two decades has done more to prevent crime and empower law-abiding citizens than any other public policy movement in my lifetime. But this does not change the fact that the founding fathers bore their arms openly and proudly and wrote the 2nd Amendment in that context.

Therefore, when 2nd Amendment supporters attack open carry as detrimental to the concealed carry movement, they are advocating sacrificing a right for a privilege.

Is that a deal we are really ready to make?

Posted in Myths & Misconceptions, Open Carry | Leave a comment