Terror and Tragedy

I had planned to report on the Ninth Circuit’s en banc decision in Peruta v. San Diego … but then came the horrific events in Orlando. The appellate court denied the right of law-abiding citizens to bear arms in public … while a Muslim terrorist simply ignored such prohibitions in order to murder dozens of people whose homosexuality offended his religion. If you don’t understand why both of these things were constitutionally and morally wrong, then you are a self-deluding fool … or an Islamic terrorist.

Even in shall-issue Florida, the killing still took place in a gun-free zone. Firearms are prohibited in bars and other drinking establishments. Now, given the clientele involved, the victims in this incident were reasonably unlikely to be armed even if weapons weren’t prohibited, but the prohibition certainly did nothing to stop the murderer. Moreover, as he was apparently a licensed security guard, the killer knew full well that his intended victims would be “legally” disarmed.

The outcome might have been different … but probably not.

This isn’t about tactics, political or otherwise. It’s about fundamental principles and natural rights. What we saw both in California and Florida were violations of principles and attempts to suppress rights. Both events should be seen as abhorrent to their own degrees in what was supposed to be an enlightened, egalitarian culture—but I know they won’t.

The American experience came so close to that egalitarian dream, but now that light will fade. Our divisions will widen, our misguided envy and misplaced jealousy will fester, and we will slowly but surely tear ourselves apart. The only real question at this point is the magnitude of our fall.

Ending Gun Violence in the United States

Cynical reasons aside, I still don’t understand why “gun violence” is worse than any other kind of violence. Nevertheless, let’s talk about reducing or even ending “gun violence” in the United States, but let’s also be honest about the means that would be used and the ends that would be achieved.

“Gun violence” has already been declining for about 20 years now, while the supply of firearms has steadily increased, but with each new highly publicized shooting, there is always an outcry for more “reasonable” or “common sense” gun controls. In fact, though, we are beyond this point. All reasonable controls have been in place for many years. Americans have already accepted violations of their Second, Fourth, Fifth, and Eighth Amendment rights in this pursuit.

Frankly, the only real options that remain are prohibition and confiscation. Obviously, if all firearms were removed from the country, there could be no more “gun violence” in the U.S., right? In the long run, this would mean disarming the police and military and closing the borders, but we can ignore those fantasies for this discussion.

So let’s get started!

First, we would have to repeal the Second Amendment. Since the U.S. Supreme Court has ruled that the amendment protects an individual right to keep and bear arms for self-defense and other lawful purposes, we can no longer pretend that “the people” therein were the regular military or even the militia. However, this is a big hurdle to leap.

The Democratic Party has reliably supported stringent gun controls for decades now. Democrats will probably also gain solid control of the federal government in the near future, so passing a proposed Constitutional amendment may not be that hard. Getting it ratified by 38 states would be a much more difficult proposition. Though several of the most populous states are stalwart gun-control bastions, over 40 states have enacted legislation and policies that strongly support the right to arms.

Therefore, repealing or modifying the Second Amendment would likely fail.

Second, even if repeal were successful, additional legislation would be required to actually start prohibiting guns and removing them from society. While less difficult than a Constitutional amendment, federal legislation would face many of the same problems. Pro-gun states would no doubt refuse to go along with prohibition schemes.

This secondary crisis could logically lead to the dissolution of the United States. Assuming the right political processes were followed, such an event needn’t result in civil war or even lesser violence, but a great deal of social and economic disruption would be unavoidable. Populations would be displaced, and North America would likely find itself with several new republics.

Third, assuming that the United States remained intact following federal prohibition, approximately 400 million firearms would still have to be confiscated. (There are about 300 million in circulation right now, but the number would drastically increase during the repeal and prohibition processes.) General confiscation could be eschewed, allowing for a slow attrition process to remove firearms from American society. However, firearms are durable goods, so “gun violence” would persist for centuries without active confiscation efforts.

Of course, confiscation would raise additional Constitutional problems. The Fourth Amendment would have to be repealed or ignored in order to effectively search for and seize firearms from recalcitrant owners. The Fifth Amendment would demand that those who did comply should be justly compensated for their surrendered property—and if everyone complied, this would cost American taxpayers hundreds of billions of dollars. If both were ignored …

Fourth, compliance with any confiscation regime would certainly be incomplete. Historical examples have proven this even in countries without such strong right-to-arms traditions. Nevertheless, even if only a third of American gun owners were actively non-compliant, that would represent over 100 million firearms remaining at large … in the hands of people highly motivated to resist and confound enforcement efforts.

The results would be bloody. With the Second Amendment gone, the Fourth Amendment suspended, and the Fifth Amendment ignored, the previously law-abiding resisters would face death or imprisonment for their non-compliance. With this final violation of their Eighth Amendment rights against cruel and unusual punishment, why wouldn’t they turn to violence? Why shouldn’t they?

The resistance and bloodshed might last generations—decades more of intensified “gun violence,” moved from its former home in the criminal underground into the front yards of polite society. Police would be killed on confiscation missions. Prohibitionist politicians and other political enemies of the resistance would be assassinated. The resistance fighters—now branded domestic terrorists—would themselves be killed or captured. They might be defeated in the long run … or they might not be. Constant, low-grade domestic warfare could be maintained indefinitely. Again, firearms are durable goods capable of lasting for hundreds or perhaps thousands of years, and the technology behind them is actually quite simple. How many more technological restrictions could our civilization accept or endure in the crusade to rid it of “gun violence”?

Finally, after many, many years and considerable costs in blood and treasure, we might succeed in removing all firearms from the United States. There would be no more “gun violence.” We would have addressed one of the hows of violence … but still not have touched any of the whys. Therefore, people would still become the victims of murder, rape, robbery, and other crimes of violence—just as the unarmed or disarmed always have.

Dancing Giant Sales

When I fled California in pursuit of relative freedom, one of the factors that brought me to Washington was the Evergreen State’s more reasonable set of gun-control laws. Therefore, you can imagine my chagrin when, just a few months later, the people elected to surrender their legal rights to privacy and property and to subject themselves to “universal” background checks even more stringent than California’s own regime. Admittedly, the voters were probably duped into passing Initiative 594 through propaganda financed by Michael Bloomberg and other plutocratic prohibitionists. No surprise that one-percenters would prefer to see the 99 percent armed with nothing more than torches and pitchforks!

In any case, though I voted against it, the measure became law, and essentially all legal firearm transfers in Washington are now subject to criminal background checks and thus require the agency of a licensed dealer. Rather than just grumbling about this development, I decided to turn the situation to my financial advantage by becoming a firearms dealer myself. So shortly after the November election, I began the long process of obtaining the various necessary licenses. After all, if I can somehow profit from the law, then it will surely be defeated in court or at least be blunted by corrective legislation. Meanwhile, I can earn some economic rent while making it incrementally easier for would-be gun owners to legally acquire their firearms from the most affordable sources.

Today, after eight months, four licenses, two inspections, various background investigations, several hundred dollars in fees, and numerous fingerprints and photographs, Dancing Giant Sales is officially open for business.

Right-to-Carry Litigation Update

While I was in the process of extracting myself from California, important progress was made on the litigation front for the the right to bear arms outside the home. After more than a year of waiting, three decision were rendered out of the U.S. Court of Appeals for the Ninth Circuit, affirming that governments in this circuit must recognize a right to carry functional handguns for self-defense under the Second Amendment to the U.S. Constitution. Specifically, the court ordered that self-defense must be accepted as meeting the various “good cause” requirements for the issuance of concealed-carry licenses in California and Hawaii.

Drake v. Jerejian	New Jersey	Lost on appeal at USCA3.
Kachalsky v. Cacace	New York	Lost on appeal at USCA2.
Moore v. Madigan	Illinois	Won on appeal at USCA7.
Palmer v. D.C.	D.C.	Won at U.S. District Court.
Peruta v. San Diego	California	Petitioned to U.S. Supreme Court.
Richards v. Prieto	California	Lost on rehearing at USCA9.
Woollard v. Gallagher	Maryland	Lost on appeal at USCA4.

Naturally, the legal battles aren’t over yet. The controlling decision in Peruta v. San Diego has been challenged by a number of actors (including the attorney general of California) and may yet face a rehearing by a larger panel on the overwhelmingly “liberal” circuit. Petitions to the U.S. Supreme Court are the next option for whichever side ultimately loses at the Ninth Circuit. Meanwhile, Drake v. Jerejian, out of the Third Circuit, is already at that step.

The question remains whether the Supreme Court will actually step in to settle the matter.

Stop the Ban on Semi-Automatic Rifles in California

I usually don’t write about prospective legislation in detail, but this example is so egregious that I feel obligated to do so. California Senate Bill 374, which was sent to the Governor last night, would prohibit the trade in all centerfire semi-automatic rifles without fixed magazines beginning next year. Rifles lawfully acquired before this time would be retained by their current owners but would have to be registered as “assault weapons” and would thus also be subject to more stringent transportation and usage restrictions.

The definitions involved are so broad that virtually all self-loading rifles would fall under the new law. This includes not only rifles that merely resemble modern military firearms, such as civilian ArmaLite-Stoner (AR) and semi-automatic Kalashnikov-action (AK) rifles that are currently legal with magazine locks installed, but also many target and hunting rifles from most major manufacturers, not excluding the very popular Springfield M1A rifles (and all other civilian versions of the U.S. M14), the Ruger Mini series, the Kel-Tec SU-16 series, surplus and commercial variants of the U.S. M1 carbine, nor arguably Garand rifles and Simonov carbines (Russian SKS, Yugoslavian m1959, etc.). Hundreds of thousands, if not millions of lawful gun owners would be affected, though many might not realize that fact until they were arrested for possession of unregistered “assault weapons.”

SB 374 appears obviously unconstitutional under the common-use test referenced in D.C. v. Heller, so I don’t expect that it would survive a constitutional challenge in court. Semi-automatic rifles are not more dangerous or unusual than other firearms and, in fact, are very rarely used in violent crime, so there is also no utilitarian justification for the would-be law. Nevertheless, we citizens must still do our part to voice opposition to misguided, unconstitutional legislation.

Therefore, if you value the right to arms and/or the civil rights of your children or possible children, I urge you to contact Governor Brown and encourage him to veto this bill.

Political Hypocrisy and Civil Rights

Last week, my brother and I squabbled via e-mail. I had held up the mirror of political hypocrisy in the form of an opinion piece from the National Review that I shared on Facebook. My brother caught his own reflection, which surprised me, and complained. I called him on it, he took offense, and we were off to the races.

Ironically, I had originally withheld my own comments precisely to avoid offending anyone. You see, if I simply tell someone that he’s wrong, then I’m being insulting, but if I instead try to let him see his own mistakes, then I apparently look condescending … or so I’ve been told. What rhetorical device can I use to make my point without risk of offending or worse yet being ignored?

However, since this will be ignored anyway, I may as well expound on the issue, since I already did most of the work for my brother’s benefit. My words will be out here in the wilderness at least.

Now, the point of the National Review piece was about hypocrisy in the treatment of civil rights, namely conflicting support or defense for discouraging the right to arms through gun-control laws and discouraging the right to vote through voter-authentication laws. If restrictions are justified on one of these to avoid certain perceived harms, then they must also be justified on the other to avoid its perceived harms. Put simply, it is hypocritical to insist on unfettered exercise of one right that may cause harm but demand restrictions on another right that may also cause harm.

My brother, of course, simply denied the equivalency, which is what disappointed me and angered him. After all, guns are bad, right? They’re just used to murder people. But votes are good. They’re used to help poor people get welfare benefits and affordable health care. Never mind that votes have been responsible for far more murders than have privately held firearms.…

I contend that the issues are very much equivalent in that important and/or fundamental civil rights are implicated in both examples. In fact, the methodologies of restriction are eerily similar, so I would argue that the voter-authentication efforts have been informed by the history of gun-control legislation. The next step might be to require background checks prior to each election, since felons are also prohibited from voting.

I could make a case for why the electoral franchise is too widely available, but that isn’t my point here and implicates too many other tangential issues. For the sake of this argument, I accept that voter disenfranchisement is a bad thing, assuming that easy access to ballots correlates to increased rates of voter fraud no more than easy availability of firearms correlates to increased rates of murder. In other words, let’s assume that there is no real problem for voter-authentication laws to solve.

I recognize these voter-authentication laws for what they really are (just like I recognize gun-control laws for what they really are). Though I could make a good-faith argument that these laws are wise and benevolent and not disenfranchising at all—like a right to arms limited just to your own home, you aren’t really disenfranchised as long as you can still vote between 1:30pm and 2:00pm in the state capital on election day—I suspect that they are less about preventing electoral fraud than they are about discouraging casual voters. Casual voters are the only group who will respond to get-out-the-vote drives, so these laws will undercut the effectiveness of such drives and thus threaten the political power of the party that most relies upon them.

I’ve seen with my own eyes just how easy electoral fraud can be, but I will oppose these voter-authentication laws and support the inevitable legal challenges. Assuming the laws are eventually stricken, the resulting jurisprudence can be used against very similar gun-control laws. In the same manner, again assuming victory for the pro-rights argument, the jurisprudence that results from the ongoing right-to-arms litigation will eventually be used to protect and expand other civil rights. What weakens one weakens all, and what strengthens one strengthens all.

And this is why I wish that I could win “liberals” over on the right to arms and “conservatives” over on private morality issues, but if I can’t convince my own brother of the importance and interdependence of all civil rights, then whom can I convince?

Mr. Kashalsky Doesn’t Go to Washington

The U.S. Supreme Court has declined to review the matter of Kashalsky v. Cacace, which unsuccessfully challenged the constitutionality of New York’s discretionary handgun-licensing regime. There are several more right-to-carry cases in the queue, so the rank speculation is that the high court would prefer to hear one of those examples instead, since the justices have already telegraphed their intent to review further Second Amendment litigation in the near future. However, the danger inherent to avoiding Kachalsky lies in the timing. The longer these important issues go undecided, the more likely that longstanding frustration will turn into anger … and anger into defiance or even violence.

In other words, we’ve moved frighteningly closer to constitutional crisis.

Propaganda in Review: VPC’s “Concealed Carry Killers”

The Violence Policy Center recently pushed out its latest version of “Concealed Carry Killers,” a review of all presumably unlawful homicides between 2007 and 2012 that were allegedly perpetrated by individuals licensed to carry concealed firearms.¹ I needed something to cheer me up, so I decided to evaluate this study in detail here. Fortunately, doing so didn’t take very long, since the total number of incidents was very small—which tells us something already. Following along as I deconstruct the propaganda may take a few minutes, though, so pour yourself a drink, get comfortable, and enjoy the show.

Before I parse the numbers and draw comparisons and conclusions, I should comment on the relative validity of the VPC data. With three exceptions,² it is drawn entirely from news reports, so certain details are probably incorrect, though I have assumed their validity for this analysis. (For example, I could argue that the licensing status presented in many of the cases amounts to hearsay evidence, but I won’t.) As usual, suicides and unintentional killings are conflated with intentional homicides to produce a higher number of fatalities. I will redact the suicides in my analysis below but not the unintentional fatalities.³ Finally, that the perpetrators were licensed was germane to relatively few of the cases. Many if not most of the incidents occurred at private residences or businesses, where non-licensees could have been legally armed, while others involved obvious premeditation and were clearly not the result of the perpetrators spontaneously killing someone just because they had legally carried weapons at hand. However, this study is about the propensity of licensees to commit murder, so the fact they were licensed cannot be dismissed even on its irrelevancy to their crimes. What I will redact are the included homicides that were actually committed by non-licensees, police officers, and security professionals.

The VPC study details approximately 370 incidents that occurred between May 2007 and November 2012. These resulted in a total of 500 fatalities and led to 168 individuals being convicted on homicide charges.⁴ These figures suggest that licensees kill about 89 people per year unlawfully. With an estimated eight million licensees in the United States,⁵ that works out to an annual homicide rate of 1.11 per 100,000 licensees. I will put that rate in context a bit later, but let’s parse the numbers a little more accurately first.

To begin, we shouldn’t count the killings that were actually committed by non-licensees or by those who were licensed only pursuant to their employment (such as cops and security guards). Redacting these reduces our total number of fatalities to 453. That leaves us with 81 presumed homicides per year or an annual rate of 1.01 per 100,000 licensees.

Next, many of the cases were unresolved. While some of these may eventually result in convictions, the accused are presumed innocent until proven guilty—despite the blood lust of the lynch mobs. Redacting these alone reduces the total to 427 fatalities. The annual rate then becomes 76 unlawful homicides or 0.96 per 100,000 licensees.

Lastly, a full third of the 500 fatalities were actually suicides, which have nothing to do with concealed-carry licensing. Redacting just the suicides, gives us 332 bona fide homicides. Including negligent shootings, that is 59 murders per year or 0.74 per 100,000 licensees.

Of course, if we were to remove all the suicides, the presumptively lawful killings, and the homicides committed by non-licensees, the rates would become lower still. I won’t split these hairs, because none of the numbers mean much in isolation. We need to compare them to other homicide rates to see if licensees present some unusual threat to public safety, which is what the VPC report implies that we should believe.

First, let’s establish the overall homicide rate. From 2006 to 2010, there were nearly 71,000 murders committed in the United States.⁶ That’s about 14,200 per year or an annual homicide rate of 4.5 per 100,000 residents. In other words, all other things being equal, you are over six times more likely to be murdered by a non-licensee than by someone licensed to carry a concealed weapon.

Now, I’m going to frighten, anger, and possibly sadden you.

According to the U.S. Bureau of Labor Statistics, there were 794,300 police officers employed in 2010.⁷ In the same year, the Cato Institute reports, police officers caused 127 fatalities in association with credible excessive-force allegations.⁸ Ladies and gentlemen, that is a homicide rate of 15.99 per 100,000 cops. You are over 21 times more likely to be murdered by a police officer than by someone licensed to carry a concealed weapon … all other things being equal.

But all other things are not equal. In 2010, approximately 3,800 black men were arrested on murder or manslaughter charges, representing about 45 percent of the total for such arrests that year, though black men comprise only about six percent of the general population. Black men were also killed with disproportionate frequency, making up over 42 percent of murder victims that year.⁹ In other words, black men are killing each other at an appalling rate—well over 20 homicides per 100,000 men.¹⁰ A black man is over 35 times more likely to be murdered by another black man than anyone is to be killed by a concealed-carry licensee.

As the above examples have shown, even the VPC’s most inflammatory numbers indicate that individuals licensed to carry concealed firearms are less dangerous than the average citizen and considerably less dangerous than certain other sub-populations. Nevertheless, the report should serve as a reminder that every population has its bad actors. The concealed-carry community may be more scrupulously law-abiding than most, but it is still not immune to evil or insanity.

I want to conclude with a thought experiment that explores how licensed concealed carry might intersect with a mass-shooting incident and VPC-style propaganda. Below, I will present two scenarios, one essentially fantastical and one frighteningly plausible. First, the fantasy …

A man wearing a long coat and a backpack walks into a crowded shopping mall. He approaches the balcony overlooking the food court on the floor below and produces an AR-15 rifle from under his coat. Leaning over the railing, he begins to fire indiscriminately into the lunchtime crowd.

A few yards away, a concealed-carry licensee is sitting on a bench waiting for his wife and daughter to finish shopping. His first impulse is to run toward the nearby emergency exit. He was trained to avoid confrontation when he applied for his license, but he isn’t sure if his family is safe … and he immediately recognizes that a mass shooting is in progress. After scant seconds of indecision, he acts, drawing his semi-automatic pistol and firing two shots at the deranged gunman.

The shots connect, but the murderer is wearing ballistic armor under his coat. He flinches and turns his rifle toward the licensee, firing wildly. The licensee adjusts his aim. He manages to get off a third shot, striking the gunman in the head, before he himself is hit in the thigh.

The shooter collapses, unconscious. The licensee calls for help, but he is already bleeding badly. In the chaos and confusion that follows, medical and law-enforcement personnel take several minutes to arrive on scene. The licensee bleeds to death.

The would-be mass killer succumbs to his wounds several days later. Two more of his victims also die, but dozens recover from the injuries left by his small, high-velocity bullets. No one has a clear idea of what happened.

The news stories report that two shooters were killed in a gun battle at the mall, along with two innocent bystanders. One of the gunmen, the reporters note, was licensed to carry a concealed handgun. The Violence Policy Center records the incident as four homicides attributed to a licensee.

Now for the reality …

A man wearing a long coat and a backpack walks into a crowded shopping mall. He approaches the balcony overlooking the food court on the floor below and produces an AR-15 rifle from under his coat. Leaning over the railing, he begins to fire indiscriminately into the lunchtime crowd.

In a nearby store, a concealed-carry licensee is buying a pair of shoes. She hears the sudden burst of shots and thinks about the compact revolver holstered in her purse. Unsure of the situation or the gunfire’s origin, she decides to wait and avoid conflict if possible, as she was trained to do when she received her license. The manager quickly locks down the store and ushers the shoppers into the relative safety of a back office.

Outside, the deranged gunman continues shooting. His rifle malfunctions multiple times due to the cheap high-capacity magazines that he chose mainly for their wicked appearance, but he manages to reload again and again, pulling magazine after magazine from his full backpack. He hits scores of people as they attempt to hide or flee.

In the chaos and confusion that follows, medical and law-enforcement personnel take several minutes to arrive on scene. The police order the shooter to drop his rifle, but he turns it on them, firing wildly. One officer is struck in the head, dying almost instantly.

The other officers return fire, hitting the suspect multiple times. He drops his rifle and collapses. He is arrested and taken to the hospital for treatment.

The police secure the area, while paramedics attempt to evacuate the wounded. The mall is locked down for several more hours as the police interview witnesses and search for other possible suspects. They eventually make their way to the shoe store.

When contacted by the officers, the licensee informs them that she is licensed to carry concealed, as she is required to do under her state’s law. The officers ask if she is armed, and she replies affirmatively. Exercising caution, the police take the licensee into custody on suspicion that she may be an accomplice.

The licensee is later released without charges. Almost two dozen victims die that day, and dozens more eventually recover from their injuries. The shooter himself survives his wounds but is ruled incompetent to stand trial.

The news stories report that 22 shoppers and one police officer were killed when a gunman opened fire with an “assault weapon.” The reporters note that a woman licensed to carry a concealed handgun was also arrested at the scene but has yet to be charged. The Violence Policy Center records the incident as a mass shooting associated with a licensee but pending resolution.

A concealed-carry licensee may [rarely] stop a mass murder in progress, but licensees do appear to provide some deterrence. The pattern is already clearly visible. Would-be mass killers preferentially target unsecured locations where firearms are prohibited by law or policy, ensuring that they will face the least possible resistance. Of course, eliminating gun-free zones and embracing the deterrent effect of lawfully armed citizens may simply compel future murderers to modify their tactics … but that’s a discussion for another time.

1. Violence Policy Center, “Total People Killed by Concealed Carry Killers” (2012).


2. The VPC also includes data from various reports published by the Michigan State Police and the Minnesota and Texas departments of public safety, which are no doubt inclusive of the news data. In other words, some of the results for these three states have probably been counted more than once.


3. Modern firearms don’t “go off” accidentally, so an unintentional shooting is almost always the result of negligence.


4. I have extrapolated the number of convictions to include perpetrators who likely would have been convicted if they hadn’t been killed during the commission of their crimes, committed suicide, or been ruled incompetent to stand trial. However, more than one of the actual convictions appear unjust to my eyes.


5. U.S. Government Accountability Office, Gun Control: States’ Laws and Requirements for Concealed Carry Permits Vary across the Nation (2012). Looking at the statistics another way, concealed-carry licensees comprise about 2.5 percent of the population but are allegedly responsible for only 0.4 percent of all homicides.


6. As usual, I take most of my crime statistics from the FBI’s Uniform Crime Reports.


7. U.S. Bureau of Labor Statistics, Occupational Outlook Handbook (2012).


8. National Police Misconduct Reporting Project, 2010 Annual Report.


9. Uniform Crime Reports.


10. The only “epidemic of violence” in the United States is largely confined to certain minority communities. It has nothing to do with guns and everything to do with institutionalized poverty and the war on drugs.

On High-Capacity Magazines

It always pains me to point out the obvious, so I omitted mention of so-called high-capacity magazines from my recent comments on reasonable gun control. However, much of the latest gun-control discussion (including President Obama’s own disingenuous remarks) has focused on the notion of limiting magazine capacities. Therefore, I am forced to point out the obvious.

Limiting magazine capacities for firearms would be difficult both practically and constitutionally. I will deal with the constitutional side first, since that may be less obvious for those who haven’t studied the history of gun control or U.S. constitutional law. To begin, though, we must define just what exactly a high-capacity magazine is—and that is a big part of the problem in itself.

An ammunition magazine is a device for feeding cartridges into a repeating firearm.¹ The capacity of that magazine will vary depending on the type and size of the gun and the size and weight of its ammunition and will generally be limited by how reliable and convenient it is in normal use. What is high capacity for one firearm may be low capacity for another. For example, magnum revolvers commonly have five- to eight-round cylinders, mid-sized semi-automatic pistols are often designed for 15-round magazines, and many small-bore rifles (such as the AR-15) are usually equipped with 20- or 30-round magazines.

In D.C. v. Heller, the U.S. Supreme Court established a common-use test for firearms protected by the Second Amendment. Since the guns described in the above example are all in common use for lawful purposes, their standard magazines will most likely be ruled protected as well. For what it’s worth, this fact may leave true high-capacity magazines constitutionally vulnerable.

What are “true high-capacity magazines”? These are the gimmicky and awkward products designed to separate gun owners from their money. They may hold scores and scores of cartridges, but they push the material limits of the magazines themselves and the endurance limits of the shooter, making them both unreliable and uncomfortable. In fact, the failures of such magazines appear to have foreshortened some recent mass-murder incidents—which leads off on a tangent that I will probably explore in the future.

Setting the Constitution aside, controlling high-capacity magazines is impractical, because doing so is essentially impossible. An ammunition magazine is little more than a box with a spring inside of it. Any high-school dropout could make one in his mother’s basement, and in a few more years, so-called 3D printing will enable anyone to manufacture all the necessary components save the steel springs. In other words, the technology is too simple to control without sending our civilization back to the Stone Age.

This is also why existing and proposed magazine restrictions bother me mostly for their idiocy. In California, it is currently illegal to manufacture or sell magazines with greater than 10-round capacities. While this law is effectively unenforceable and has no impact on violent crime, law-abiding citizens such as myself dutifully follow it, but I offer this detail with a caveat. I may have no personal or immediate need for high-capacity magazines, but should such need develop, I expect that they will be easy enough to come by.

Now for your bonus tactical argument! Why are high-capacity magazines actually good for lawful defense but mostly irrelevant to criminal offense? The gun-control theory goes that when a would-be mass killer stops to reload, his potential unarmed victims have an opportunity to tackle him safely, but this is the exception rather than the rule.² When faced with imminent violence, those not properly prepared or trained to respond in kind will naturally tend to flee or hide, leaving the murderer with ample time to reload or switch weapons. On the other hand, the defensive shooter is already in the fight by definition. Her attackers will be pressing their assault and not cowering or running, so she won’t have the luxury of calmly reloading her weapon with another low-capacity magazine.

Magazine limitations are pointless and probably unconstitutional and like other unreasonable gun-control schemes hinder only law-abiding citizens and not the violent criminals they supposedly target.

1. It’s worth noting that repeating firearms (capable of more than one shot before reloading) have been around for nearly 700 years, though they didn’t become economical to manufacture widely until the mid-19th century.


2. The garden-variety violent criminal needs to fire only a couple shots while trying to murder a rival gang member.

Reasonable Gun Control

 
“I support the Second Amendment, but I think we should have reasonable gun controls.” This is a line frequently heard from politicians and certain special-interest groups. While it’s often disingenuous—since what the most vociferous gun-control proponents really desire is total prohibition, presumably in the noble but misguided hope of creating a non-violent society—I will nevertheless take the statement on its face for the sake of discussing reasonable gun-control measures.¹

As the U.S. Supreme Court has repeatedly held, all civil rights, no matter how fundamental, are subject to some degree of regulation in a society structured on ordered liberty. The Second Amendment right to keep and bear arms is no different. Furthermore, in D.C. v. Heller, while affirming the individual right to arms for self-defense and other lawful purposes, the high court opined that many longstanding gun-control regulations are presumptively lawful.

This brings us to the fact that most of the reasonable gun controls commonly demanded have already been in place for many years or even decades. However, not all of these regulations have been fully or properly implemented. I will examine each of these reasonable proposals below and offer suggestions for more effective improvement. Some of these gun-control schemes are more reasonable than others and will probably pass constitutional muster in the face of ongoing legal challenges, but some will fail this test and are likely to be stricken.

Background Checks

No one wants guns in the hands of violent criminals or the dangerously insane, so background checks have been federally indicated pursuant to all commercial firearms sales since the Gun Control Act of 1968 and much earlier in many states. Though their actual effectiveness is questionable due to the durable nature of firearms² and the propensity of criminals to acquire their guns via illegal means, the process has become relatively painless with the advent of the National Instant Check System (NICS) in the 1990s, and most transactions can now be cleared or denied within a matter of minutes. Since nearly instant background checks don’t unduly burden the right to arms, they will probably be ruled constitutional if challenged.³

Nevertheless, the system does have its flaws. First, NICS depends on data gathered from a number of sources. When the various agencies responsible for collecting this information fail to input disqualifying criteria, the system may still clear someone who should have been prohibited. Second, due to the high volume of false positives, law-enforcement agencies are unable to investigate denials. While most denials are overturned on appeal, a few are undoubtedly the result of legitimately prohibited persons,⁴ who may then proceed to obtain guns illegally. Both problems can be mitigated with greater attention to accurate and thorough data collection and by improved database integration.

Furthermore, despite the largely successful implementation of NICS, various provisions of the Gun Control Act keep gun sales mired in mid-20th century practices, particularly when interstate transactions are involved. By law, a Federal Firearms License (FFL) is required to deal in firearms, but licensees are restricted to face-to-face transactions with residents of their own states, except when dealing with other licensees. This can actually compromise the security of an interstate transfer, as the firearm must pass through many more hands on its way to the legal buyer, increasing the likelihood that it may be lost or stolen along the way.

There are two possible and relatively easy solutions to this problem, though both would require that the law be amended. First, leveraging the NICS service, outdated residency requirements could be eliminated, allowing any cleared customer to take delivery of a firearm without being forced to first have it shipped to a licensed dealer in the customer’s home state. Second, an existing category of FFL could simply be expanded to include a wider variety of firearms, affording the licensed collector more convenience while exposing him and the community at large to less risk.

These reforms would also have the added benefit of further discouraging undocumented and potentially unlawful private sales, which I will discuss in more detail below.

Registration

We’ve had de facto gun registration at the federal level (as a result of the record-keeping requirements for FFL holders) and de jure registration in several states for many, many years. Though registration is of dubious utility to law enforcement, it has also done little harm to law-abiding gun owners, despite dire predictions from some quarters within the right-to-arms camp. Implementing a standardized federal registration system would work very well in conjunction with the modernized interstate-transfer procedures described above.

That said, there is some evidence from the courts that registration may be deemed unconstitutional. It certainly contradicts the Fourth Amendment right to privacy. Arguably, however, the militia clause of the Second Amendment suggests that the government may have a constitutional interest in understanding the disposition of arms suitable for militia service—and I will discuss which firearms should be considered militia weapons in detail below.

Licensing

Beyond the FFL system described above, there has long been a call to license gun owners. We license drivers after all … or so the argument usually goes. In fact, though, licensing regimes are now present in all states but Illinois—a problem being addressed in the courts right now. Unfortunately, several of the most populous states (including California and New York) still continue to discourage their citizens from becoming licensed, despite having had licensing systems in place for many decades.

Indeed, licensing reform is currently the top priority within the right-to-arms movement, where it is viewed as the gun-control measure offering the single most immediate benefit to public safety. To that end, multiple legal challenges to unconstitutional licensing practices are working their way through the federal courts and will likely reach the Supreme Court within the next two years. The high court is widely expected to rule that while states may regulate when and where their citizens may carry guns for self-defense and other lawful purposes, there must also be a legal mechanism for them to do so that is administered equitably and that doesn’t unduly burden the core right.

I have reported on liberalized or shall-issue licensing before. Whenever and wherever such licensing reforms have been adopted legislatively, there have been exaggerated claims by opponents that gun violence would explode as licensees instigated shootouts for all manner of trivial reasons. Of course, no such thing ever happens. Instead, licensees have proven to be exceptionally law-abiding, and the data suggest that right-to-carry laws contribute to an at least slight decrease in violent crime.

This decrease is due mostly to the deterrent effect of an armed populace. Even though only a tiny fraction of the eligible citizens choose to obtain licenses, would-be attackers are still dissuaded and seek out softer targets. Over time, this effect should become more pronounced as a larger percentage of the population becomes licensed and, hopefully, as other criminal-justice reforms are implemented.

However, I won’t argue that armed citizens are a perfect antidote for episodes of mass murder.⁵ Both are statistically rare, so the likelihood that a licensee will be immediately present when one of these very unusual events erupts is exceedingly small. While the chances that an armed citizen will simply be nearby are significantly higher, licensees are not police officers and are trained to avoid confrontation whenever possible. In any case, the event wouldn’t be recognizable any longer, since the headline would read: “Gunman opens fire in crowded shopping center. Dozens injured.”

Safety Training

Safety and competency training will always be valuable where firearms are concerned. In fact, voluntary safety programs formalized in the 1950s and championed by the National Rifle Association are probably responsible for reducing the rate of fatal firearms accidents to statistical insignificance. Nevertheless, states that don’t include any training as part of their licensing requirements still haven’t seen an increase in accidental shootings, which suggests that stringent training demands would provide little additional benefit to public safety.

That said, any potential training requirements that weren’t unduly burdensome would probably be deemed constitutional. Here again, the Second Amendment provides for a well-regulated militia, and in its 18th-century context, well regulated was understood to mean well trained. To this end, basic firearms safety could reasonably be included in school curricula, possibly helping to reduce accidental shootings even further.

Waiting Periods

Waiting periods have come and gone over the years, but they were sold politically to accomplish two goals. First, waiting periods allowed time to conduct the mandatory background checks, though NICS has essentially obviated this need. Second, they provided a cooling-off period for any gun buyer who might be acting on some temporary murderous impulse, though I’m aware of no correlation between waiting periods and reduced homicides.

In short, waiting periods have probably outlived any utility they may have had. Nevertheless, in California and other states where they remain, there is speculation that at least initial waiting periods for first-time gun buyers would survive constitutional challenge. If this proves to be the case, though, the state may be left in the position to delay access to firearms to those who may legitimately and suddenly develop an immediate need for effective self-defense.

Unfortunately, I see no remedy for this problem, if cooling-off periods are allowed to stand. It may simply be a matter of personal responsibility for those living within an imperfect system. It’s probably too late to buy the fire extinguisher once the fire has already started.

Private Sales

This is the so-called gun-show loophole. While gun shows enjoy no special exemptions, under federal law and in many of the several states, private sales are largely unregulated. Private parties are free to dispose of their own property as they see fit, so long as they aren’t knowingly transferring firearms to prohibited persons or dealing without a license.

For those less familiar with gun laws, you may find the dinner-party loophole somewhat easier to understand. This is the gap in health-and-safety laws that allows you to serve food and drink to your own family or to host a dinner party for friends and associates without having to obtain FDA approval or a conditional-use permit from your county of residence. Closing this loophole would require you to obtain the services of a licensed caterer before dining at home.

While there is much talk about requiring all private firearms transfers to be conducted through the agency of licensed dealers, as they currently are for the most part in California, it’s unclear whether such restrictions would be deemed constitutional. In addition to the Second Amendment, controls on private property also implicate the Fourth, Fifth, and Ninth Amendments. On top of this, such regulations are very difficult to enforce, effectively guaranteeing a low rate of compliance.

A better approach would be to encourage voluntary participation in the national background-check system. Providing private sellers with access to NICS would be well received by the vast majority of gun owners, who are generally eager to follow the law and who would appreciate the extra peace of mind while still avoiding the gross inconvenience of conducting private sales through licensed dealers. While this certainly wouldn’t eliminate all undocumented transactions, it would minimize them to a large extent, allowing law-enforcement resources focused on the illegal arms trade to be targeted more efficiently.

“Dangerous and Unusual Weapons”

In Heller, the Supreme Court explicitly ruled that weapons “in common use” by the people are protected by the Second Amendment, implying in its historical analysis that “dangerous and unusual weapons” could be subject to more stringent controls. However, these terms were left somewhat vague. The specific weapon “in common use” in this case was a personally owned handgun, but which weapons are “dangerous and usual”? And how does this decision square with the only previous Second Amendment ruling, U.S. v. Miller?

In Miller, the high court held that weapons suited for militia service were constitutionally protected. While this ruling may be regarded as partly erroneous due to the incomplete briefing process before the court, at present time, the weapon best suited for militia duty would be a select-fire assault rifle chambered for the 5.56×45mm NATO cartridge—or at the very least a semi-automatic analog thereof. However, select-fire weapons, other fully automatic firearms, and various “destructive devices” have been tightly controlled since the National Firearms Act of 1934 and essentially banned from production for the civilian market since 1986.

If the prohibitions on “dangerous and unusual” military weapons are constitutional, then that leaves us with semi-automatic versions of military rifles as the de facto protected militia weapons “in common use” by the people. However, despite their involvement in only a fraction of gun-related homicides, these are the very same “assault weapons” that so many gun-control proponents would like to see banned.

Now, as I’ve written before, so-called assault weapons are fictitious. The term was used to frighten the uneducated public into support for the federal ban that expired in 2004. A semi-automatic rifle is a semi-automatic rifle, regardless of whichever secondary features it may have—and like millions of other Americans, I own one myself. My modern Kel-Tec SU-16 rifle with its traditionally shaped stock is really no different than a 50-year-old Colt AR-15 with a pistol-grip stock. Both are chambered for the same intermediate 5.56mm cartridge.⁶ Both can accept the same five-, 10-, 20-, 30-, 60-, or even 100-round magazines. And both can fire only one shot for each pull of the trigger.

Therefore, per Heller, semi-automatic rifles are “in common use” and thus constitutionally protected for lawful purposes. They are also the only readily available militia weapons protected per Miller. Unless the prohibitions on more appropriate military-grade weapons are to be relaxed, any bans on semi-automatic “assault weapons” are both pointless and very likely unconstitutional.

Gun-Free Zones

Gun-free zones are a dangerous fiction and should be eliminated immediately. Vague, poorly defined zones have been ruled unconstitutional once before and doubtlessly will be again when an appropriate challenge arises. In the meantime, as we’ve learned tragically and repeatedly, the only guns these zones are free from are those held by law-abiding citizens.

Specific zones are more legally tenable, but to effectively implement truly gun-free zones would require secure perimeters, controlled access points with thorough searches of all incoming traffic, and ubiquitous surveillance.⁷ In other words, we would have to turn these “sensitive places” into prison camps. This would be both impractical in economic terms and antithetical to a free and open society.

Let’s reserve the prison-camp mentality for places where we really have no other choice … such as in actual prisons.

The foregoing gun-control proposals represent what reasonably can and cannot be achieved. Properly implemented, they can provide us with a constitutional and functional right to arms while still allowing both practical and symbolic legal tools for reducing violent crime. Most are already in place and need only minor adjustments to be made more effective.

This goal is politically possible for those who honestly wish to enhance public safety while also protecting our civil rights. The vast majority of gun owners already support these reasonable measures, and none of us expect to win a completely unfettered Second Amendment. What we do not appreciate is continually being blamed for the wrongdoing of the minority of willfully evil and dangerously insane people in this world, and we will certainly no longer tolerate being punished for their crimes.

1. The intellectually honest supporter of reasonable gun control will ultimately find himself in the right-to-arms camp. I should know, because I was that person. While my views have evolved toward libertarianism and away from the utilitarianism implicit in the unreserved support for gun control, that doesn’t change the fact that we will be living with some degree of utilitarian regulation until long after the subject has lapsed into irrelevance.


2. A well-maintained firearm will remain functional for hundreds if not thousands of years, and there are at least 800 million already in circulation worldwide. We will never run out of guns. This is one of many reasons why outright prohibition is an unacceptable proposition.


3. Of course, if background checks are acceptable for the exercise of a fundamental civil right, then arguably they should be applied to other less protected areas as well, such as voting rights, driving automobiles, or the receipt of public benefits.


4. I would argue that there should also be a way for prohibited persons to eventually restore their civil rights. Otherwise, the utilitarian argument dictates that anyone too dangerous to be trusted with a firearm is too dangerous not to be incarcerated.


5. It certainly wouldn’t hurt to allow licensees to go armed in otherwise unsecured “sensitive places.” Existing laws vary widely in this respect.


6. Military assault rifles and their semi-automatic civilian analogs are chambered for intermediate cartridges, more potent than low-powered handgun cartridges but less powerful than the high-powered rifle cartridges used for hunting and long-range precision shooting.


7. Even the strictly enforced gun-free zone only relocates the problem. Instead of a bunch of unarmed victims congregated inside the zone, we would have a bunch of unarmed victims queued up outside the zone waiting to be screened for entry. Either way, the would-be mass killer is presented with a target-rich environment.

Victory at the Seventh Circuit

Today brought a somewhat unexpected victory on appeal for two right-to-carry cases out of Illinois. The panel at the U.S. Court of Appeals for the Seventh Circuit has ruled that the state’s sweeping prohibition is unconstitutional and has remanded the cases with orders for corrective legislation.

The theoretical and empirical evidence … is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified.… It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand … them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment.…

If nothing else, this decision will likely be seen as creating a so-called circuit split, which would generally compel the U.S. Supreme Court to take up a case in order to resolve the inconsistency … while possibly also foreclosing the only-in-the-home defenses used thus far.

Richards v. Prieto at the Ninth Circuit

On Thursday, Alan Gura argued the case of Richards v. Prieto before the U.S. Court of Appeals for the Ninth Circuit. As I have reported previously, this case challenges the constitutionality of discretionary licensing policies in California, specifically the requirement for an applicant to meet subjective standards of “good moral character” and “good cause” in order to be eligible for a license to carry a firearm on his or her person.

Oral Arguments

Self-Defense, the Right to Arms, and the Concealed-Carry Revolution

The video I’ve shared is from a recent Cato Institute policy forum on self-defense and “stand your ground” laws. Though fairly long, it provides solid historical, political, and legal analysis, so I encourage everyone to watch. As you might suspect, I disagree in part with the last commentator,¹ but I still think he made valid points about the application of the law and the possible need for further guidance. After all, if “stand your ground” laws were a reaction to the misapplication of other statutes by prosecutors, are they not at risk for misapplication themselves? Absent political motives, the mere fact that relative experts disagree on the meaning of these laws suggests there is yet a degree of ambiguity, but that is a matter for legislators and judges to resolve.

As noted in the video, the adoption of such affirmative self-defense statutes has followed the proliferation of right-to-carry laws throughout the country. However, many if not most people are still largely unaware of this quiet revolution, both because the laws encourage or even require the concealed carry of firearms and because the mainstream media usually does their best to ignore the laws once they’ve been passed.² Naturally, there is a long and troubling history behind the right-to-carry movement, and I can touch on that only briefly here.

In A.D. 1986, only a handful of states would readily issue licenses to common citizens. In the rest of the country, the carrying of firearms was either broadly prohibited or the licensing authorities had almost unlimited discretion in issuance. This was the legacy of the two-pronged gun-control efforts³ of the 1920s and ’30s, which were ostensibly intended to combat the dramatic increase in violent crime that accompanied alcohol prohibition.

That began to change when Florida became the first state in recent decades to adopt a shall-issue statute, which required the licensing authority to issue licenses to all applicants who were not legally disqualified. Florida’s concealed-carry law became a model for reform, and by the mid-1990s, over half of the United States had enacted similar shall-issue statutes. The causes have not been widely explored, but I think that they will prove clear enough once this chapter of history is written.⁴

Opposition to the shall-issue movement has been and continues to be fierce, and in each case it has usually taken several years for liberalized concealed-carry legislation to make it through state legislatures and past gubernatorial vetoes. Without fail, opponents have warned of dire consequences should the reforms pass into law. Blood would run in the streets, they assured, as minor disputes and disagreements escalated into shootouts. Invariably, though, such grim outcomes have failed to materialize, and violent crime has continued to decline⁵ as right-to-carry laws have continued to expand.

Today, all but a handful of states enjoy shall-issue licensing or better. California, New York, and several other “liberal” states still maintain discretionary, may-issue regimes, while Illinois is the only state with no licensing system. Legislative reform is unlikely in these gun-control strongholds, so multiple constitutional challenges are now making their way through the federal courts.

The U.S. Supreme Court is widely expected to hear one or more of these cases within the next two years.

1. I am far, far more worried about misconduct by the police and prosecutors than I am about the potential that a criminal might “get away with it” here or there.


2. After vigorously campaigning against a right-to-carry reform, the news media seem to conveniently forget about the topic, except for occasional “investigative” pieces designed to expose or embarrass licensees. Here is a recent exception to that rule. “New Fashion Wrinkle: Stylishly Hiding the Gun.” The New York Times (2012).


3. These efforts resulted in the National Firearms Act of 1934, which sought to regulate firearms at the federal level via taxation (since the federal government was presumably bound from direct infringement on the right to keep and bear arms by the Second Amendment), and the “uniform acts,” which sought to control guns at the state level (since state governments were presumably not bound by the Second Amendment). In practice, though, the various prohibitions on concealed firearms found within the uniform acts were mostly used to disarm “undesirable” people (i.e., minorities and immigrants), and that was probably a large part of the true intent behind them. Otherwise law-abiding white citizens were generally unaffected for several decades, and the wealthy and influential could always count on getting licenses or at least special consideration in the event of any embarrassing incidents.


4. I contend that the right-to-carry revolution developed as a response both to the equalized enforcement practices reached in the 1970s and ’80s and to the political successes of the national gun-control movement from 1968 to 1994. Note that the number of shall-issue states had almost doubled within two years of the enactment of the federal ban on “assault weapons.”


5. The FBI’s Uniform Crime Reports show that homicides (gun related and otherwise) have continued to decline from 2006 to 2010. Firearms-related homicides specifically dropped from 10,225 to 8,775. More guns on the street simply do not correlate to—let alone cause—more violence.

No Correlation between Firearms and Violence

As a supporter of the right to arms and of human freedom in general, I am prepared to accept a high price for those liberties if need be. However, it is always nice when the evidence shows that more freedom is at least not more dangerous than less freedom.

Please see walls of the city for methodology and sources.

Assault on “Assault Weapons” Begins

Sponsored by the Calguns Foundation and the Second Amendment Foundation, a lawsuit has been filed in federal court to challenge California’s ban on so-called assault weapons. Richards v. Harris attacks the ban itself on Second Amendment grounds and as a bonus also challenges the constitutionality of warrantless gun-related searches under the Fourth Amendment. The lawful possession of a firearm is not probable cause that a crime has occurred.

As I have noted before, “assault weapons” do not actually exist. They are an artificial and arbitrary category of weapon, functionally identical to many non-banned semi-automatic firearms, and much of the legislation passed against them was done through subterfuge, exploiting their superficial resemblance to machine guns, which have been tightly controlled since A.D. 1934 and effectively banned since A.D. 1986. Even in California, there are hundreds of thousands of firearms that have been modified to comply with the law’s confusing definitions.

The time has come to strike down this unconstitutional statute that prohibits firearms “in common use for lawful purposes.”

Right-to-Arms Rally in Los Angeles

Mayors Against Illegal Guns sounds like an innocuous organization. Who isn’t against illegal guns? Illegal guns are those used by criminals in the commission of their crimes … right? Not exactly.


Michael Bloomberg’s pet gun-control group operates on the standard prohibitionist model. Not only would these mayors make owning and using firearms more difficult for law-abiding citizens in a vain attempt to thwart criminals, they would manufacture even more “illegal guns” by broadening the already broad categories of prohibited persons. Maybe that’s not so bad, you think? However, they would also circumvent due process of law and proper adjudication in order to do so, which is the much graver threat to personal freedom and civil rights.


This week, Mayor Bloomberg brought his show to Los Angeles, and that is how I found myself at a rally sponsored by the Citizens Committee for the Right to Keep and Bear Arms. Under a blue but slightly cloudy sky, I joined fellow civil-rights proponents in front of the dilapidated headquarters of the Los Angeles Times. For a weekday event scheduled with short notice, it was fairly well attended, given that these were working people who had to use vacation credits or sacrifice a day’s pay to be there.


Gene Hoffman, Jr., of the Calguns Foundation spoke to the news media and addressed the public. Contrasting the Bloomberg group’s focus on the dozens of daily gun-related homicides, he cited conservative statistics from the U.S. Department of Justice that estimate more than 2,100 defensive gun uses per day. In other words, guns save far more lives than they take.


The gathering was also somewhat noteworthy in that rallying and demonstrating are not things gun owners usually do. Instead, we let our factors (such as the National Rifle Association) in Washington or Sacramento do the talking for us … and grumble quietly when things don’t go our way. Expectations are clearly changing, even if today’s event was little more than an exchange of propaganda.


As it often is, the “after party” was as interesting, if not more so than the event itself. I had the opportunity to listen to Mr. Hoffman discuss the constitutional, judicial, and legislative factors that should firmly recognize the right to carry a firearm within the next two or three years. He even let us in on the ironic but nearly foolproof method that should soon moot California’s ban on so-called large-capacity ammunition-feeding devices.

Like the skies over Los Angeles, so much has changed since I met with the NRA’s California leadership in early A.D. 2008, several months before the Heller decision. Gene Hoffman was there then too and ever more diplomatic than I in explaining to the old guard how the information revolution had affected the situation and our ability to organize and motivate people. I saw that again today, with renewed confidence that while there may still be minor setbacks, the overall victory appears inevitable.

And then things should start to get interesting.…

Beyond Chicago and Incorporation

And the Second Amendment has come back to California … again … and to the rest of the several states as well.

Today’s U.S. Supreme Court ruling in McDonald v. Chicago wasn’t the historic victory for civil rights that it could have and perhaps should have been, but it was a victory nonetheless. The court failed to breathe new life into the 14th Amendment’s intended protection for the “privileges or immunities” of American citizenship, but it still found that the Second Amendment applied to state and local governments, restoring the right to arms to its proper place in the pantheon of American civil rights. That is cause enough to celebrate for many reasons.

So what happens next?

Even after Chicago’s handgun ban is dismantled, many details about the nature and scope of the right to arms will still have to be defined. Many gun-control laws will be challenged. Some will pass constitutional muster, and some will not.

Legal challenges that have been on hold here in California can now proceed. The state’s concealed-carry licensing system and certified-handgun roster are clearly discriminatory and violate equal protection under the law. These are the low-hanging fruit. The optimists at the Calguns Foundation expect these to fall within two years.

Meanwhile, the usual batch of gun-control legislation has been moving forward, despite the fact that some form of incorporation has been widely expected since the ruling in D.C. v. Heller two years ago. California legislators and officials are either too ignorant or too disingenuous to avoid the oncoming train of constitutional law.

Elsewhere, some good progress has been made during the last year. Iowa joined the ranks of right-to-carry states, while Arizona became the third state to allow concealed carry without a license or permit. Federal regulations prohibiting firearms in national parks have also been lifted.

Why is this all so damned important? That I will explain in a future post.

Supreme Court to Hear Incorporation Case

The U.S. Supreme Court will hear McDonald v. Chicago to decide if the Second Amendment is incorporated against the states via the 14th Amendment. The case challenges Chicago’s ban on handguns, which is very similar to the District of Columbia’s ban that was struck down as unconstitutional last year. This case also bears watching for its approach to incorporation, which could finally put an end to this long bit of legalistic fiction.

Meanwhile, all pending right-to-arms litigation in California is on hold.

En Banc Hearing for Nordyke v. King

The en banc hearing for Nordyke v. King was today. The judges didn’t pull any punches, but late in the day, the court vacated the submission pending the disposition of several Second Amendment incorporation cases before the U.S. Supreme Court. Sadly, this decision will deny the honor of incorporation to California and delay progress on civil-rights litigation here.

Victory in Defeat

Lest it appear that I ignore setbacks and defeats …

As the New York Times reported today, the U.S. Senate failed to pass an amendment to a defense-spending bill that would have mandated nationwide recognition of concealed-weapons permits—which, technically, Article IV of the U.S. Constitution already requires. Actually, the amendment was approved 58 to 37, but procedural rules required 60 votes. Of course, even if the amendment had eventually passed into law, it would have done little for California … other than to further demonstrate that most other Americans enjoy more freedom than we do in this area.

However, this minor defeat illustrates how far we have come since the zenith of the gun-control movement in A.D. 1994. Over half the Senate voted in favor of a provision that would have benefited law-abiding gun owners. That is progress in itself.