Archive for the 'Second Amendment' Category

From AJC:

A gun rights group filed a notice Wednesday that it will appeal a federal judge’s dismissal of a suit challenging a state law banning weapons in churches, mosques and synagogues.

John Monroe, the attorney for GeorgiaCarry.org, filed a notice that he plans to ask the 11th U.S. Circuit Court of Appeals to review U.S. District Judge Ashley Royal’s decision. Royal ruled Monday that a 2010 law that lists places of worship among locations where guns are not allowed did not violate the First Amendment right to freedom of religion or the Second Amendment guarantee of a right to bear arms.

The lawsuit — brought by GeorgiaCarry.org, the organization’s past president and  the minister at the Baptist Tabernacle of Thomaston — challenged the inclusion of places of worship on a list of places where guns are not allowed —  government buildings, courthouses, jails and prisons, state mental hospitals, nuclear power plants, bars without the owner’s permission and polling places.

The suit called the handgun “the quintessential self-defense weapon in the United States.” Former GeorgiaCarry.org president Ed Stone and other worshipers argued that they should be able to arm themselves “for the protection of their families and themselves” without fear of arrest and prosecution on a misdemeanor charge. The Rev. Jonathan Wilkins of the Baptist Tabernacle said he wanted to have a gun for his protection while working in his church office.

The church claimed members’ efforts to practice their faith had been “impermissibly burdened” because they felt they needed to be armed but feared being arrested if they brought their guns to services.

And Stone wrote in a filing that his  “motivation to carry a firearm as a matter of habit derives from one of my Lord’s last recorded statements at the ‘last supper,’ that ‘whoever has no sword is to sell his coat and buy one … I believe that this injunction requires me to obtain, keep and carry a firearm wherever I happen to be.”

Jesus told us that “The things that proceed out of the mouth come from the heart, and those defile the man” (Matt 15:18).  Man is no tabula rasa, but guns are what theologians call adiaphorous, or morally neutral.  Christ knew that his people would need protection, and thus he commanded that self preservation come even before clothing.

That’s the key, isn’t it?  It’s something the pro-gun control lobby doesn’t get.  Ownership of firearms has nothing to do with wishing others harm or even in inflicting harm.  It’s always best if a weapon works as a deterrent.  But a man’s life is worth so much that God expects us to do our utmost to preserve and protect it.

Unfortunately, Judge Royal’s decision isn’t based on the idea self preservation.  This church (along with others like it) is now the most vulnerable place around for a perpetrator of a crime to cause carnage and take innocent lives.  The Judge doesn’t intend it, but she has made those parishioner’s time at worship much more dangerous.

Christ said “let him who has no sword sell his robe and buy one” (Luke 22:36).  Judge Royal has now come in between these men and their God-given duty to protect their families.

Prior:

Obama Administration to Press for Gun Control

Second Amendment Challenge

UPDATE: Thanks to Glenn Reynolds at Instapundit for the link.

So my oldest son Joshua calls me up and says to me, “Well, you were right.  Look on Drudge right now.  In the wake of the Arizona shooting, the White House is going to press for more gun control.”  I responded that just as a leopard cannot change it spots, Obama cannot change himself.  He is a statist and everything he does will be consistent with that worldview.

I had predicted to my son that the Obama administration will press for more gun control, which (I speculated) will include not only a ban on high capacity magazines, but a renewed “assault weapons” ban, extended waiting periods for any firearm – including long guns – and a whole host of other things.  Time will tell the scope and breadth of the proposed legislation, but this should become more apparent within the next few weeks.

At the beginning of his State of the Union address, President Obama tipped his hat to Rep. Gabrielle Giffords, who’s now recuperating in a Houston medical facility. But throughout the hourlong speech, he never addressed the issue at the core of the Giffords tragedy—gun control—and what lawmakers would, or should, do to reform American firearm-access laws.

That was intentional, according to the White House. An administration official says Obama didn’t mention guns in his speech because of the omnipresent controversy surrounding the Second Amendment and gun control. Tuesday’s speech was designed to be more about the economy and how, as Obama repeated nine times, the U.S. could “win the future.”

But in the next two weeks, the White House will unveil a new gun-control effort in which it will urge Congress to strengthen current laws, which now allow some mentally unstable people, such as alleged Arizona shooter Jared Loughner, to obtain certain assault weapons, in some cases without even a background check.

Tuesday night after the speech, Obama adviser David Plouffe said to NBC News that the president would not let the moment after the Arizona shootings pass without pushing for some change in the law, to prevent another similar incident. “It’s a very important issue, and one I know there’s going to be debate about on the Hill.”

The White House said that to avoid being accused of capitalizing on the Arizona shootings for political gain, Obama will address the gun issue in a separate speech, likely early next month. He’s also expected to use Arizona as a starting point, but make the case that America’s gun laws have been too loose for much longer than just the past few weeks.

Even though Loughner used a pistol (Glock 9 mm) with an extended magazine, the administration will make a case for a renewed ban on every weapon that could possibly be placed in that category, including long guns.  I had previously issued a challenge concerning extended magazines and other such bans of hand guns, posing the question whether such a ban is logically and constitutionally legitimate.  To date there hasn’t been even a hint of success in supporting such a ban.

It doesn’t matter.  In the spirit of Rahm Emanuel’s dictum never to let a crisis go to waste, the White House doesn’t want to appear to be capitalizing on the Arizona shooting, but intends to capitalize on the Arizona shooting.

Prior:

Second Amendment Challenge

Legislation on High Capacity Magazines

Breyer: Founding Fathers Would Have Allowed Restrictions on Guns

UPDATE: I was right about the assault weapons ban.

“The president has been clear about his position on the assault-weapons ban, to use an example … back in the campaign, that’s been restated,” Mr. Plouffe said.

Candidate Obama supported reinstating the assault-weapons ban, which expired in 2004 – and which included a ban on high-capacity magazines. But since becoming president, Obama has largely steered clear of the gun issue. New York Mayor Michael Bloomberg chided Obama Wednesday for making no mention Tuesday of what he called “the broken background check system.”

Forget about high capacity magazines.  Those will get swept up in the larger rubric of “assault weapons.”  He’s going for bigger fish in this legislation.

A study of the current public debate (including comments generated from Legislation on High Capacity Magazines) shows that the arguments by pro-gun control advocates generally fall into one or more of three categories.  The first category is hyperbolic, exaggerated and overheated prose.

For example, E. J. Dionne, Jr., writing for The Washington Post, believes that advocates of the Second Amendment hold “peculiar” views, that they are “extremists,” and that their rhetoric has been instrumental in blocking legislation that would have saved lives.

I came to realize, partly from e-mail exchanges with ardent foes of gun control over the years, that the real passion for a let-anything-go approach to guns has little to do with culture or hunting. It is rooted in a very peculiar view of how America has maintained its freedom. Rep. Ron Paul, as is his wont, expressed it as plainly as anyone.

“The Second Amendment is not about hunting deer or keeping a pistol in your nightstand,” the Texas Republican declared in 2006. “It is not about protecting oneself against common criminals. It is about preventing tyranny. The Founders knew that unarmed citizens would never be able to overthrow a tyrannical government as they did. . . . The muskets they used against the British army were the assault rifles of that time” …

The approach to guns, violence and “tyranny” promoted by loud voices on the right has been instrumental in blocking measures that could at least have contained the casualties in Tucson – or at Virginia Tech or Columbine. Extremism in defense of feeble gun laws is no virtue.

Dionne doesn’t really know any of this as we will discuss further, but while the Washington Post attempts to frame their anti-gun views in respectable arguments, a discussion thread at Media Matters (focused on the so-called Second Amendment Remedy) turned quickly into a lambaste of “right wing extremists,” and one commenter weighs in by saying that “the “Second Amendment Remedies” remark is one that even the most hypnotized wingnuts won’t generally defend.”

But Ken Klukowski, a research fellow at Liberty University School of Law, observes:

This right has two purposes. One is so Americans can defend themselves from criminals. Another — talked up by the Tea Party but ridiculed by the liberal elite — is that the Second Amendment protects citizens against our own government.

The Supreme Court declared in its landmark 2008 D.C. v. Heller decision — a decision praised by Rep. Gabrielle Giffords, D-Ariz. — that the Second Amendment was enshrined in the Constitution because when vast numbers of citizens have guns and know how to use them, “they are better able to resist tyranny.”

When serving on the California Supreme Court, now-D.C. Circuit Judge Janice Rogers Brown observed, “political writings of the [Founding Fathers] repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.”

Ninth Circuit Judge Diarmuid O’Scannlain explained the Second Amendment “right contains both a political component — it is a means to protect the public from tyranny — and a personal component — it is a means to protect the individual from threats to life or limb.”

The most sobering words come from Judge Alex Kozinski of the 9th Circuit, who wrote, “the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people.”

The son of Holocaust survivors, Kozinski continued, “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies seem today, facing them unprepared is a mistake a free people get to make only once.”

When leftist rhetoric suffers from a refusal to do even the most basic homework, it’s difficult to take it very seriously.  The second category into which much rhetoric seems to fit is one of a fundamentally flawed mechanical understanding of firearms and how they work.

Robert Rector, writing for the Pasadena Star-News, says that he’s ex-Army, but then treats us to this confused set of plans for gun control:

The Second Amendment is a reality. We have the right to keep and bear arms and I do not wish it repealed … I do believe we need to reinstitute the federal assault weapons ban, signed into law by President Clinton and allowed to expire under President Bush. It would, among other things, have prohibited the magazine which allowed the shooter to fire 33 rounds before he was stopped.

I believe we need effective gun control. The right to bear arms doesn’t allow you to own nuclear weapons, surface-to-air missiles or flame-throwers. We should add to that list semi-automatic handguns, super-sized ammo magazines and concealed weapons of any kind.

Rector doesn’t wish the Second Amendment to be repealed, but he wishes to ban semi-automatic handguns, high capacity magazines and “concealed weapons of any kind.”  How exactly one could allow Second Amendment rights and yet ban the ownership of any weapon that could be concealed isn’t explained (or obvious).  Perhaps Rector wants us to return to single action pistols (that aren’t concealable – if there is such a thing), but he justifies this by denying a right to own a nuclear weapon.

The third category into which much of the rhetoric falls is illogical.  Most proponents of a ban on high capacity magazines confuse causation with correlation, and one may include the “excluded middle” in their list of problems.  If high capacity magazines weren’t so readily available, they say, crimes like this wouldn’t occur.  But this hasn’t been demonstrated, and there are other options.  The shooter could simply become skilled at rapid magazine changeout (and see here and here too).  Or perhaps since criminals don’t care about the law, they might choose to steal a high capacity magazine or obtain one on the black market.  Another option might be to become skilled at the use of tool and die equipment and fabricate their own (after all, it’s only a box with a spring).  Yet another option would be to carry two or more handguns, with rounds chambered, so that magazine changeout would be unnecessary.  The reader may be able to come up with more options.

Besides being unable to demonstrate that a ban on high capacity magazines would effect the desired outcome, it is a particularly ghoulish and creepy argument anyway to say that it’s okay for a shooter to kill ten people in a crowd (the proposed limit on magazine capacity), but greater than ten deaths is not acceptable.  The threshold is completely arbitrary and totally capricious.

One may add to the list of logical fallacies ad hominem insults and an appeal to authority (the genetic fallacy).  The leftists are especially crowing about alleged gun rights advocates supporting the proposed ban on high capacity magazines.  Vice President Dick Cheney may be open to the idea, although he doesn’t explain what he thinks it will accomplish.  And Peggy Noonan even recommends that Obama pursue the idea, while observing that the GOP likely won’t fight it in the Congress.

What civilian needs a pistol with a magazine that loads 33 bullets and allows you to kill that many people without even stopping to reload? No one but people with bad intent. Those clips  were banned once; the president should call for reimposing the ban. The Republican Party will not go to the wall to defend extended clips. The problem is the Democratic Party, which overreached after the assassinations of the 1960s, talked about banning all handguns, and suffered a lasting political setback. Now Democrats are so spooked they won’t even move forward on small and obvious things like this. The president should seize the moment and come out strong for a ban.

Of course, Noonan gives us yet another problematic argument, i.e., assuming that the Constitution is discussing needs rather than rights.  The road down which she turns is a dastardly one indeed, since Noonan may be not able to convince an empowered government that she needs an automobile for travel or a computer for writing her commentaries.

So here is a challenge – a Second Amendment challenge.  Give us an argument by which we may conclude that a ban on high capacity magazines (or semi-automatic handguns) is constitutional and will effect the desired outcome.  Do so without using hyperbolic, exaggerated language and without insults, and make it demonstrably logical in its construction.  In all of my study I have yet to run across such an argument.

Prior: Legislation on High Capacity Magazines

Representative Carolyn McCarthy (D-N.Y.) has introduced legislation to “restore the prohibition on large capacity ammunition feeding devices in the United States.”  She intones, “Though it will remain impossible to estimate, I believe that the increased difficulty in obtaining these devices will reduce their use and ultimately save lives.”  Law abiding citizens who want to obtain the high capacity magazines through legal means will be prohibited from doing so under her new laws, and the criminals will still obtain whatever they want by any means that they want.  Representative McCarthy is a stooge.

Her legislation goes even further than the assault weapon ban that expired in 2004, outlawing the sale or transfer of clips that hold more than ten rounds, even those obtained before the law takes effect.  Proponents have argued that there is no “need” for such magazines.  Neither is there a “need” for me to eat steak, but it tastes good.  When a politician uses the phrase “there is no need” in the context of firearms, it only goes to show that they don’t yet acquiesce to the notion of rights.

But let’s play this silly game of “need” for a moment.  Could you tell Ramon Castillo in Houston, Texas, that there was no need for a high capacity magazine after having to save himself and his wife by killing three assailants?  According to the police:

Investigators said so many shots were fired inside the jewelry shop in a two- or three-minute span that they could not estimate the number of rounds. “We’ve got bullet fragments all over the place, casings all over the place, shotgun slugs all over the place, so it’s really hard to determine at this point how many rounds were actually fired – but quite a few.”

Castillo used at least three different firearms: a 9mm, .380, and a shotgun.  Or how about feral hogs?  Ask the dog boys around Abbeville and parts of Northern Georgia how threatening 400 – 500 pound feral hogs can be to children and even adults, and how, at times, dozens of rounds have to be fired to take them down.  If a 400 pound feral hog was running towards your child, do you think you might want a high capacity magazine?  Oh, and they’re in about 40 states now, and after breeding with imported and violent Eurasian boars, there are about six million of them.

In Des Moines they apparently believe that the framers never figured on a right to bear a Glock, and elsewhere the phrase killing machines has taken on an evil connotation.  In Knoxville, Jack McElroy gets his numbers wrong, talking about a 31-round clip.  I have a 30 round magazine, but you know, you have to count that one in the chamber (30 +1), if you go to the trouble of putting it there.

But none of these individuals has had to defend his life like Ramon Castillo, or had children attacked by feral hogs.  So this silly need game that we just played is a Red Herring.  Can we get back to talking about rights?

In Second Amendment Quick Hits #3, there is a lawsuit in North Carolina that bears on the carrying of weapons in situations of so-called riots or “other emergencies.”  The Brady campaign has intoned against the Second Amendment (again) as you might guess.

The Brady Center to Prevent Gun Violence today filed a brief in federal court in North Carolina urging the court to dismiss a lawsuit seeking a right to take up arms in streets and other public spaces during riots or other emergencies.  The lawsuit challenges a longstanding North Carolina law that allows gun carrying on a person’s property but temporarily bars public gun carrying in the vicinity of a riot and during states of emergency.

“The Second Amendment does not grant a right of vigilantes to take up arms on our streets during a riot or state of emergency,” said Paul Helmke, President of the Brady Center to Prevent Gun Violence.  “Police and emergency responders seeking to quell a riot or deliver aid during an emergency should not be forced to contend with legally-authorized armed individuals and groups roaming alleys and public streets.”

The Brady Center’s brief argues that there is no right of armed vigilantes to take to the streets during riots or congregate in the vicinity of emergency responders trying to secure a downtown during riots, looting, or terrorist attacks.  The prospect of police and emergency responders being powerless to stop bands of armed citizens from taking to the streets during emergencies, looting, or rioting poses a serious threat to the government’s ability to maintain public order and deliver emergency services.  If the lawsuit were successful, law enforcement would be unable to detect whether roaming armed individuals or gangs were would-be looters, terrorists, or vigilantes, thus jeopardizing their safety and their ability to respond to states of emergency.

David Codrea observes that “on this much, Helmke is correct: The Second Amendment grants no rights.  It recognizes them, and declares they shall not be infringed.”  Codrea goes on to analyze the Los Angeles riots in the context of this lawsuit, very worthwhile reading.  But note the way the Brady Campaign has cast the issue.  Rather than defending yourself, family and property, if you own and carry a weapon in a time of “emergency,” you are a vigilante, a part of “armed bands of citizens” roaming the streets, making it impossible for the police to ascertain the difference between you and criminals.  Presuppositions are everything, no?

Next, note the Firearms Freedom Act introduced in South Carolina.

Prefiled in the South Carolina by State Senators Lee Bright and Danny Verdin is Senate Bill 249 (S0249), the Firearms Freedom Act (FFA). The bill states that:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in South Carolina and that remains within the borders of South Carolina is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.

Since 2009, 8 states have passed similar legislation as law – Montana, Tennessee, Utah, Wyoming, South Dakota, Idaho, Alaska and Arizona. And, here at the Tenth Amendment Center we expect to see at least a dozen other states consider Firearms Freedom Acts in 2011.

The United States Constitution gives Congress the authority to regulate Interstate Commerce between the states, and 18 USC 922 makes it unlawful for any person not licensed as a manufacturer or dealer in firearms to engage in the business of manufacturing or dealing in firearms. Collectively, the Interstate Commerce Clause and 18 USC 922 are used by the federal goverenment as a means to regulate, control and often-times ban, firearms.

The South Carolina Firearms Freedom Act addresses this by exempting firearms, firearm accessories, and ammunition manufactured and retained in the state from all federal firearm control laws including registration, as firearms that meet these criteria cannot be regulated by the federal government because they have not traveled in interstate commerce.

“Basically, we’re saying if the gun is made here, South Carolina is going to say what kind of regulations apply,” Bright said. “We feel that South Carolinians should be able to determine how to protect themselves — not the federal government — which is why most people have firearms.”

It’s difficult to imagine a scenario in which this doesn’t eventually make its way to the SCOTUS, although it’s also difficult to imagine what the government’s case would be since there is no interstate commerce occurring under the stipulations of this law.  But my bet is that the current administration orders the U.S. Solicitor General to take up the case (or better said, make a case where there isn’t one).

Prior:

The Feds Muscle In On Long Gun Sales

Breyer: Founding Fathers Would Have Allowed Restrictions on Guns

From Yahoo (AP):

The federal agency that monitors gun sales  wants weapons dealers near the Mexican border to start reporting multiple sales of high-powered rifles, according to a notice published in the Federal Register.

The Bureau of Alcohol, Tobacco, Firearms and Explosives has asked the White House budget office to approve an emergency request requiring border-area gun dealers to report the sales of two or more rifles to the same customer within a five-day period.

The emergency request, published Friday in the Federal Register, is likely to face stiff opposition from gun rights advocates, including the National Rifle Association. ATF wants the Office of Budget Management to approve the request by Jan. 5.

NRA officials did not immediately return a telephone message for comment Monday. Last week the group’s chief lobbyist, Chris Cox, told the Washington Post that the “NRA supports legitimate efforts to stop criminal activity, but we will not stand idle while our Second Amendment is sacrificed for politics.” The Post first reported the proposal.

High-powered rifles have become the weapon of choice for Mexico’s warring drug cartel. More than 30,000 people have been killed in Mexico’s drug war since President Felipe Calderon launched an offensive against the powerful drug gangs shortly after taking office in late 2006.

Officials on both sides of the border have said weapons bought legally in the United States are routinely smuggled into the Mexico. The proposed reporting requirement would apply to sales of two or more semi-automatic guns more powerful than .22-caliber rifles that use a detachable magazine within a five-day period.

[ … ]

Currently there are no reporting requirements for rifles.

If approved by the White House, the new reporting requirement would affect nearly 8,500 border-area gun dealers in Arizona, California, New Mexico and Texas and be in place for 180 days.

Analysis & Commentary

Ah.  It all has the ring of reasonableness and exigent need, doesn’t it?  Who in their right mind could possibly object to the sale of multiple long guns with detachable magazines being monitored and approved by the federal government if those same weapons could end up harming U.S. citizens?  Or so the thinking goes.

Besides chipping away at Second Amendment rights, the trouble with this plan is that it doesn’t do anything to fix the problem – it only pretends to be a solution.  It merely throws a band aid on symptoms of the problem.  The problem is a porous border, with lack of robust rules for the use of force for border guards, and even when the National Guard is deployed to the border, they have been deployed to do paperwork, report illegal border crossings, and do fence repair.  In most cases, their orders don’t even include having a weapon with a chambered round.

As I have said before, piracy and illegal immigration exists because we want it to.  Build the fence, imprison the CEOs of corporations and even small companies who hire illegals, and secure the border with robust rules for the use of force, and the problem is solved.  There is no need to “deport” anyone.  They will leave of their own volition, at least if we cease and desist funding their families with government sponsored programs.

Illegal immigration isn’t a hard problem to solve.  We just don’t want to badly enough.  Rather, our government would just as soon go after long guns under the guise of stopping trouble on the Southern border.

Don’t believe the ruse.

And in Second Amendment quick hits (something that will become a regular feature of The Captain’s Journal):

Someone in Kansas is telling us that police assistance is available in a matter of minutes, when in fact, most violent crimes are over in seconds.

And Fred Grimm with the Miami Herald is lamenting rapid fire.

Like accountants working a cold night in hell, crime scene technicians recorded the number of gunshot holes in Ciara Lee’s Liberty City home, scrawling a black numeral where each bullet had penetrated the concrete block wall or blasted through a window.

On the front stoop, clustered around a door and window, gunshots 64, 65, 66 . . . up through 73 had been dutifully marked.

The gunmen missed a toddler’s purple tricycle stashed by the porch.

But not the child inside.

Down the west side of the house, the techs enumerated bullets 78, 79, 80, 81, 82, 83, 84, 85, 86, 87.

It’s the gruesome new numerology of Liberty City and other neighborhoods where teenage gangbangers wield the same weaponry carried by soldiers and insurgents in war-afflicted places like Iraq and Afghanistan.

More than 100 bullets were fired at the block house about 1 a.m. Tuesday from military assault weapons.

Police think there were two shooters. They fired so many shots so quickly a cop outside the crime scene Wednesday wondered whether the weapons were semi-automatic, the AK-47-style weapon available at any gun shop, or guns converted to automatic — converter kits are available on the streets — transforming these rifles into virtual machine guns.

Either way the firepower was so formidable it didn’t matter that Ciara Lee, 24, a state corrections officer, and her 2-year-old son Devin, were “safe” inside their home, asleep in bed. Both were killed. Tony Lee, 49, Ciara Lee’s cousin, was hit in the leg.

Once again, innocents in communities like Liberty City suffered the murderous reality created by Second Amendment absolutists — those who talk of the right to own military assault weapons as if these guns should be regarded no differently than handguns or hunting rifles.

Fred wouldn’t like my weapon.  You know, we wouldn’t want American citizens to own the same weapons owned by insurgents in, oh, let’s say, Afghanistan.

Those long guns can do some damage.  Shouldn’t we regulate pistols, too, given the capability to deliver rapid fire?  How about the Kel-Tec PMR30?

Goodness.  The philosophical and even tactical problems are so immense for the statists.  It’s so hard to stay consistent, is it not?

From FoxNews:

If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.

Appearing on “Fox News Sunday,” Breyer said history stands with the dissenters in the court’s decision to overturn a Washington, D.C., handgun ban in the 2008 case “D.C. v. Heller.”

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,” said Breyer, adding that historians characterize Madison’s priority as, “I’ve got to get this document ratified.”

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.

In July 2008, the concurring opinion in “D.C. v. Heller” written by Justice Antonin Scalia and shared by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. found that the district’s ban on handgun possession at home “violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

The ruling raised concerns by dissenters like Breyer that gun laws nationwide would be thrown out. That has not happened yet.

Breyer, who just published “Making Our Democracy Work,” a book about the role of the court in American life, outlined his judicial philosophy as one in which the court must take a pragmatic approach in which it “should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”

Since the Founding Fathers could not foresee the impact of modern day communications and technology, the only option is to take the values of the Founding Fathers and apply them to today’s challenges.

“The difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing,” Breyer said. “It’s not a matter of policy. It is a matter of what those framers intended.”

He suggested that those values and intentions mean that the Second Amendment allows for restrictions on the individual, including an all-out ban on handguns in the nation’s capital.

Let’s assume for the sake of argument that his history is correct.  Breyer’s rationale is this.  Because ratification of the constitution was a priority, Madison made it abundantly clear that the federal government had no business in the affairs of states regarding the bearing of arms.  The amendment was ratified, solidifying for all time this watershed statement of limits of control by the federal government.

Next step.  Because Madison made this deal, contrary to his intent (which Breyer implies but presupposes rather than proves), one may infer from this very amendment the right for states to regulate firearms, up to banning them outright.  But notice the sleight of hand.  Breyer has turned something dispositive and affirming concerning our rights (see the language in the Second Amendment) and flipped it on its head to mean that it’s merely the federal government that doesn’t have the right to remove our firearms.  Someone else does.

He further muddles his logic by referring to deals made in order to get necessary votes in place.  As one commenter notes, “Others have picked up on this point, but whether James Madison liked the idea or not, the states voted to ratify the Constitution because the Bill of Rights contained the Second Amendment. So the best that could be said, accurately, is that “a” founding father might have favored restricting weapons, but he obviously did not reflect the majority view.”

And one more commenter observes concerning Breyer’s logic, “So then by this logic, a single payer health system could be adopted through the Supreme Court since the “intent” of the law was to have a single payer system, but since the Libs just wanted to get it passed, they stripped out that part. Laughable and nothing but revisionist history and judicial activism.”

Rhetorical sleight of hand, and logical blunders.  And this is the level of scholarship on the Supreme Court of the U.S.?

It’s membership renewal time, and I cannot forget that Wayne LaPierre endorsed Harry Reid, saying “He is a true champion of the Second Amendment back in Washington, DC.”  There was ultimately no NRA endorsement, with Chris Cox saying “Reid’s push to confirm Supreme Court Justices Sonia Sotomayor and Elena Kagan” prevented the NRA from endorsing Reid.

Actually, it was the strong reaction by NRA membership that prevented it from happening.  Reid secured a significant amount of money for a shooting range in Clark County, Nevada (61 million dollars of tax money, to be precise), and there has been significant politicking on this issue within the NRA, with a gag order being issued to members of the NRA board on the Kagan nomination.

And here I thought that the NRA was above buy offs, influence peddling, and general corruption.  Even now it isn’t clear to me why Wayne LaPierre and Chris Cox cannot simply be kicked to the curb and new leadership installed?  Thuggish behavior should not be tolerated, and the NRA deserves better leadership that these two men.  It is enough that they should beclown themselves and instigate internecine warfare on the board; we shouldn’t allow it to happen to the NRA too.

Yet I am just a member, and I know that there are other organizations that promise to be above the influence peddling.  So do I dump the NRA or give them one more chance?

Note: For Harry Reid’s record on the 2nd Amendment, see here.