Publicola

There is much talk about Sen. Hatch. He has introduced a bill to repeal some parts of D.C's firearms laws. Before I get into the possible motives behind this proposal, let's examine what Sen. Hatch said when he introduced the bill:

"FLOOR STATEMENT: THE DISTRICT OF COLUMBIA PERSONAL PROTECTION ACT
Statement of Senator Orrin G. Hatch
before the United States Senate
'The District of Columbia Personal Protection Act'
Mr. President, I rise today to introduce the District of Columbia Personal Protection Act. This is an extremely important piece of legislation. Most importantly, this bill goes a long way toward restoring the constitutionally guaranteed right of Americans who reside in the District of Columbia to possess firearms."

Hmmm. sounds good so far, although why would one introduce a bill to restore the Rights of citizens in one city where many cities infringe upon Rights almost as badly?


"Mr. President, it is no secret that the District of Columbia, our great Nation's Capital, suffers from the most startling violent crime rates in the country. It has the highest, the absolute highest, murder rate per capita in the country. According to the Bureau of Justice Statistics, and despite the most stringent gun control laws in the country, in 8 out of the 9 years between 1994 and 2002, Washington, DC had the highest murder rate in the country. In fact, the results are in for 2002, and unfortunately they continue to paint a grim picture. Mr. President, the District of Columbia has again reclaimed its rather unenviable title as the 'Murder Capital of the United States'."

It is also no secret that most government employees - both city & federal - have adequate security so their interest in the crime rate is mostly academic.

"It is time, Mr. President, to restore the rights of law-abiding citizens to protect themselves and to defend their families against murderous predators. All too often, we read in the paper about yet another vicious murder carried out against an innocent District of Columbia resident. Try to imagine the horror that the victim felt when he faced a gun-toting criminal and could not legally reach for a firearm to protect himself. We must act now to stop the carnage and put law-abiding citizens in a position to exercise their right to self defense. It is time to tell the citizens of the District of Columbia that the Second Amendment of the Constitution applies to them, and not only to their fellow Americans in the rest of the country. The District of Columbia Personal Protection Act would do exactly that."

Until the last two sentences I would agree completely. Where I take exception is that the 2nd amendment is not respected throughout the rest of the country. There are many laws, of local, state & federal origin that trample the 2nd amendment. & the proposed bill would not make the 2nd amendment applicable to D.C. residents. It would just lighten up on certain, but not all, restrictions. More on that in a minute.

"Let me take a moment to highlight what this legislation would do. This bill would: (1) permit law-abiding citizens to possess handguns and rifles in their homes and businesses; (2) repeal the registration requirements for firearms and ammunition; (3) eliminate criminal penalties for possession and carrying of firearms in their homes and businesses; and (4) correct an erroneous provision which wrongly treats some firearms as if they were machineguns."

Well, first of all the 2nd amendment doesn't 'permit' anyone to own or carry a weapon. It prevents the government from interfering with that. I am leery of hearing the word 'permit' in any of its meanings when discussing Rights acknowledged by the Constitution.

If we move swiftly past the 'permit' issue (bad pun intended) you'll note that it only mentions possession of rifles & handguns in the home or business. So it's your Right to protect yourself from crime in the home or business but if you're in your car or walking down the street you're out of luck?
Being generous this would be compliant with the "keep" mentioned in the 2nd amendment, but woefully neglects the 'bear' part. 'Keep' can & should be defined as owning or possessing, while 'bear' should be defined as carrying. I see nothing in the Constitution that limits this to the home or office.

Repealing the registration requirement is a good thing. No problems there that I can see.

The elimination of criminal penalties for carrying in the home or business seems good on its face. However doesn't it strike you as a little redundant when compared to the first part that 'permits' possession in the home or business? I could just be paranoid (hey- I have a blog. It's either be paranoid or be boring!) but it seems to me that either there's something in the language of this bill that is not as cool as we'd like to think, or he put in a redundant provision to make it appear that the bill does more than it does. Then again it could be both.

& correcting an erroneous provision that treats some firearms like machine guns sounds good. But remember, Federal firearms laws are constitutionally prohibited. The proper course of action wouldn't be to narrow the list of restricted firearms (such as machine guns) but to actually read the damned 2nd amendment & realize that congress lacks the constitutionally authority to restrict &/or prohibit possession, sale, ownership, or transport of machine guns & any other kind of gun that has value to a citizen if/when called upon to act as part of the militia. That would mean all guns that a person can discharge by his/herself.
What he is saying is that certain guns shouldn't be lumped in with machine guns but he ignores the simple truth that machine guns shouldn't be prohibited or restricted as they are.

"Over the years, Mr. President, I have heard over and over again from some of my friends on the other side of the aisle that the way you reduce violent, gun-related crime is by prohibiting the possession of firearms. Even if law-abiding citizens are prohibited from possessing firearms, my liberal friends argue, it is a small price to pay for safety and security."

Other side my ass - he knows damn well that a lot of his friends on his side of the aisle believe that philosophy. Hell - he's addressing one of them!


"Well, I want to take this opportunity to dispel these unfounded myths. These myths, I might add, are exposed as such by situations like we have today in the District of Columbia. I have said it before, but I will say it again, excessive regulation and the systematic erosion of the rights guaranteed by the Second Amendment do not deter violent, gun-toting criminals. Enacting and vigorously enforcing stiff penalties for those that commit crimes with guns deters violent crime. Not only is this the proven and effective approach to reducing gun violence, it also preserves the constitutionally guaranteed rights of law-abiding men and women to own and possess firearms."

He lost me after the 3rd sentence. The problem with sentence number 4 is that enforcing stiff penalties for those who commit gun crimes is going on in D.C. now. A gun crime is a crime committed with a gun. This can mean armed robbery, but it can also mean possession of an unregistered gun by an 80 year old widow. Further because a gun crime can be non violent &/or victimless the enforcement of such laws does not preserve our Right to own, possess & carry arms. He is either ignorant of the nature of gun laws & the 2nd amendment, or he is being disingenuous.

"In fact, I recently held a hearing that examined the Administration's gun crime reduction initiative, Project Safe Neighborhoods. This initiative has been incredibly successful. It takes the precise approach that I have advocated - strict and vigorous enforcement of crimes committed with guns. It says to criminals, "If you use a gun during the commission of a crime, you will do very serious and very hard time." And it does so, Mr. President, without trampling on the rights of law-abiding American men and women."

B. S. No. B. F. S. Project Exile/Safe Streets/Safe Neighborhoods is not only an affront to the 2nd amendment, but the 9th & 10th as well. It basically allows for federal prosecution of 'gun crimes'. Last time I checked the feds weren't granted any general policing powers by the Constitution. In addition to this usurpation of State's authority it again takes non-violent, victimless crime & makes it a federal matter. If anyone tells you that they think Project Exile/Safe Streets/ Safe Neighborhoods is a good idea then don't trust them. Even if they claim to be pro-gun, they do our side more harm than you'd think. & yes this would include the NRA. It not only tramples on the Rights of individuals, it tramples on the authority of the respective states. By implication & act it says that some gun control is o.k. That is in direct conflict with every copy of the Constitution that I’ve read.


"Today, unfortunately but not surprisingly, the state of affairs in the District of Columbia has highlighted exactly what those of us who care deeply about the Second Amendment of the Constitution have always feared: murderous criminals possess firearms and are free to prey upon law-abiding citizens; and law-abiding citizens - precisely because they are law-abiding citizens- may not possess a firearm in their homes to protect themselves and their families."

If he cares so deeply about the second amendment, then why does he not address the fact that no federal gun control is permissible? Or that in many instances those murderous criminals who pray on the law abiding citizens do so with government authority, paychecks, weapons, & have been doing so with complete protection from prosecution? No, I'm not implying that the CIA is funding the Cryps - I'm saying that government agents who enforce laws that are contrary to the constitution are no better than the thugs trying to rob you on the corner.
But in any event, he only addresses possession & use of firearms in the home or business. That offers no protection for people who have to walk, drive or otherwise commute to & from work, or the store, or anyplace that is not their home or business. It's a good thing that he wants people to be able to protect themselves at home & work, but why doesn't he want people to protect themselves in transit?

"Mr. President, the prohibition of firearms in the District of Columbia is as ineffective and deplorable as it is unconstitutional; it is high-time we rectify this wrong. I urge my colleagues to support this measure."

Add '&/or restriction' after 'prohibition' & substitute 'The United States' in place of 'the District of Columbia' & I would be in complete agreement with the first sentence. But the measure, while providing some benefits (at least on the surface) does not go far enough.


Now on to the motivation behind this proposed law:

As some of you know a couple of lawyers associated with the CATO institute have filed a challenge to D.C.'s gun laws. (Parker vs. District of Columbia) At first the NRA was content to donate money to G. Mason University instead of helping the CATO lawyers. But finally the NRA decided to get involved by launching their own challenge. (Seegars vs. Ashcroft) Bad part was the NRA challenge was considerably more complex & not based solely on a direct 2nd amendment question. Then the NRA filed a Motion to Consolidate the two cases. So the CATO lawyers asked the NRA to butt the hell out. They filed a challenge to the NRA's motion to consolidate & asked for a recusal of the NRA lawyers because of misconduct. Fortunately the NRA's Motion to Consolidate was denied.

"How does this relate to Sen. Hatch's proposed law?" you might ask. If Sen. Hatch's bill is passed into law that would negate both the NRA's court case as well as the one filed by the CATO lawyers.

"So why does that matter?" you might ask. The purpose of the CATO lawyers challenge is to have the courts rule that the 2nd amendment acknowledges an individual Right & laws contrary to that are void.
If a law is passed that rescinds part of the gun control laws in D.C. it does not do anything to acknowledge the Right to be armed. In essence all it does is say that the Congress will rescind part of the gun control laws in D.C., not because it has to but because it wants to.
There would be absolutely nothing to keep Congress from passing an even more draconian gun control law for D.C. somewhere down the road. With a favorable ruling from the court however it would nullify any attempts by Congress to pass gun control laws in the future - to an extent at least.

What is happening is that the NRA does not want the CATO lawyers to win their court case. They attempted to muddy it up with theirs but that failed. So what they are trying to do is support Hatch's bill in the hopes that it will get passed before the CATO lawyers case is heard.

"But the NRA is pro-gun! Why would they do such a thing?" you might be wondering.

The NRA is about as pro-gun as the LAPD. They would not lose any sleep if a law was passed requiring NRA membership for gun possession. They do not care about making any real progress towards restoring the Right to Arms. They make their cash by scaring people into joining as an effort to protect their Rights, yet they know if they make any real progress the scare factor will disappear & membership dollars will drop.

So if the NRA had managed to consolidate the two cases it would have surely doomed both cases as the NRA's arguments were based on rather complex issues, many of which were not directly related to the 2nd amendment. They would have been able to say that they tried but those damn courts didn't listen to reason, while not endangering their job security by actually winning.

Since that didn't happen they will push very hard for Sen. Hatch's bill. If the bill passes before the CATO lawsuits are heard, then the NRA wins. The CATO lawyers challenge will be dismissed; the NRA will be able to claim another "victory" while not really doing as much as they could have done to further the cause they pretend to support.

The probable motive behind Sen. Hatch's bill is simply to avert any real victory for the Right to Arms.

Clayton Cramer tends to agree with a superficial reason of the NRA used to justify their lack of desire to take 2nd amendment cases to court on 2nd amendment grounds. He opines that because of the recent Supreme Court rulings on other matters that a 2nd amendment cases would probably lose.

I think Clayton Cramer is a very intelligent person. His scholarly work (that I have read) has been very insightful. & he should receive full credit for his part in pointing out inaccuracies in the book by Bellesiles called Arming America: The origins of a National Gun Culture. ( for an example look here) But on issues that concern the 2nd amendment I have been absolutely disgusted by some of his views.

Clayton Cramer tends to fall into that psuedo-Fuddite mold, where anything is a victory if it directly benefits him personally, & things that would not benefit him do not seem of much importance. An example of this is CCW permit reciprocity: count how many times he ends a post about a new state recognizing another states permit by stating that's one more state he can carry in. But he dismisses any attempts at a Vermont based system (no permits or fees required) as politically hopeless & not worth the effort. In fact I have exchanged a few e mails with him over his approval of the Colorado 'Shall Issue' CCW law that was passed earlier in the year. He seemingly could not comprehend that the new CCW law was so bad that the old 'may issue' type law was better. After our exchanges he wrote an article in the Shotgun News which basically affirmed his earlier assessment that the new Colorado CCW was good. He did mention with some incredulity that some e-mails he received complained about the new law & that it seemed like these e-mailers would have rather kept the old law, which in my case at least was exactly what I had stated. Not that the old law was good, it was just better compared to the new law & if a Vermont based CCW couldn't happen we were better off under the old law. In the end I think he, like so many others have been blinded by three words: "Shall-Issue, Reciprocity. You can decide for yourself about which CCW law was better by reading this comparison on them.
But Clayton Cramer does do some good work & some very good, detailed research. As far as I know it's just on concealed carry issues where we seem to clash.

Moving right along Clayton Cramer seems to agree with the NRA line about waiting until a more favorable court is sitting before bringing a direct 2nd amendment question up.
Of course the response that immediately comes to mind is, "Then why don't we just wait for a more favorable Constitution to come along?".

There is absolutely no argument I have ever heard that is more cowardly than to not do the right thing because you might not win. There is a chance & possibly a good one that the Supreme Court would rule unfavorably in a 2nd amendment case. But the answer is not to delay a 2nd amendment case until the 'right' judges can be lined up: the answer is to give the 2nd amendment case everything you have. If you lose, then the choices are not much different than before: either work on changing the law/Constitution, work on another 2nd amendment case in hopes of the court reversing itself, or give up entirely & start organizing a secessionist movement.

But what would happen if a 2nd amendment case was heard & decided upon favorably? Well depending on the particulars one specific law, a multitude of laws, or every law that prohibited or restricted gun ownership, possession & transport would be off the books & putting them or others like them back on the books would be difficult at best. The NRA would no longer be able to use scare tactics to increase its membership or solicit contributions. In short they'd go back to being what they actually were useful as: a sports shooting & safety organization. The NRA leadership & attorneys do not want that as it would radically alter their tax brackets.

The NRA wants to avoid any direct 2nd amendment questions simply because if they win they'd lose their income. All the justifications they use to cover this fact are unconvincing, at least to me.
Similarly I do not see a conflict in the NRA attempting to help get Sen. Hatch's bill passed just to avoid any decisions on the 2nd amendment.

So while the proposed law that Sen. Hatch introduced seems like a good thing on its face it could do more damage to the Right to Arms than you'd think. Let's hope the CATO lawyers are able to argue their case before this bill is passed.