Saturday, May 10, 2003

The NY Times has an article on Bush's support of the assault weapons ban despite the NRA's objections.

"Mr. Bush's position 'cuts against the N.R.A.'s position,' said Michael Franc, vice president of government relations at the conservative Heritage Foundation, 'and it will put the president — for one of the first times since he signed the campaign finance reform bill — at odds with his own political base.'
'He's built up enough positive political capital in other areas that it won't be fatal,' Mr. Franc added, but the issue could hurt Mr. Bush in Middle America, considered critical to his re-election chances in 2004."

Actually a lot of people see this is a very clever political move. Those people reason that the assault weapons ban will not have enough congressional support to be extended therefore Bush is supporting a measure that will attratc new boters while having relatively little risk of having to sign it into law. I disagree. Bush mentioned his support for the assault weapons ban during his campaign. In fact his father banned the import of 'assault weapons'. So I see that Bush could actually support the assault weapons ban regardless of the political considerations.

"This is a president who has been so good on the Second Amendment that it's just unbelievable to gun owners that he would really sign the ban," said Grover G. Norquist, a leading conservative and an N.R.A. board member who opposes the weapons ban. "I don't think it's sunk in for a lot of people yet."

Again I disagree. Bush has not been "so good on the Second Amendment". Since he's been in office his administration has stated that the Second Amendment is an individual Right but one subject to restrictions. I do not see "subject to restrictions" as part of the Second Amendment.
His administration has asked the Supreme Court to decline hearing two Second Amendment cases, one of which was the Emerson case. His administration has supported strict enforcement of federal gun control laws. His Department of Justice argues against people who challenge gun control laws. In fact the Department of Justice's attorneys successfully argued against Thomas Bean, a man who lost his Federal Firearms License because of a felony conviction in Mexico for possessing ammunition. Here is a copy of the decision in U.S. vs. Bean for any legal buffs out there.
(To summarize Mr. Bean was convicted of possessing ammunition, which is a felony in Mexico. Upon his return to the U.S. he found that the Mexican felony disqualified him from owning possessing & trading in firearms. he sought relief from the BATF, but the BATF cannot process any requests for relief because congress has withheld funding for that speicific function since the early 90's. He took his case to court & the lower court ruled that the inability of the BATF to act on his request constituted a denial & they felt they had jurisdiction to grant Mr. Bean relief, which they did. The Department of Justice appealed to the Supreme Court & had the lower court's ruling overturned, based on the argument that the BATF's inability to act did not constitute a denial & therefore it was not open to judicial review.)
Add to that Bush's support of a continuation of the assault weapons ban & I cannot conclude that he has been "so good on the Second Amendment".

Meanwhile Sen. Feinstein (D-california) is pushing for continuation & strengthening of the assault weapons ban.

"Sen. Dianne Feinstein, (D) California: 'It still needs improvement. We can still build upon it, but it is critical that we get this reauthorization.'
The Bush administration has said it will support an extension of the ban but it remains uncertain if the White House wants to expand it to cover Feinstein's new proposal.
It includes blocking the import of clips that carry 10 or more bullets."

Democrats are asking for Bush's help in re-newing the assault weapons ban.

"Schumer and other backers of the assault weapons ban told a news conference they are seeking renew the 1994 law as written, recognizing that they can't expand it in the current political climate.
The sole change they seek is a ban on importing high-capacity ammunition clips that let an assailant shoot dozens of bullets in a matter of seconds. The 1994 law banned their U.S. manufacture, but not their import.

Action on measures to strengthen or expand gun control 'isn't in the cards right now,' said California Democrat Dianne Feinstein. She said she would rather preserve the status quo so she can build on it in the future than 'lose everything (and) go back many steps' by overreaching now."

Jacob Sullum, the senior editor at ReasonOnline has an interesting piece on the underlying reasons for the assault weapons ban.

"The VPC complains that "the gun industry moved quickly to make slight, cosmetic design changes in their 'post-ban' guns to evade the law." That was possible because the focus of the law—the essence of what makes a gun an "assault weapon"—is slight and cosmetic."

It is definitely worth a read.

Friday, May 09, 2003

I rarely post the writings of others in their entirety, but I feel the subject is interesting enough in this instance to justify it.

For some background I first became aware of the following letters on a Bulletin Board I frequent, It was also on Guns & Ammo's Forum. The letters are from Gary Gorski, the plantiff's attorney in the Silveira vs. Lockyer case.
Here is a link to the thread on & here is the link to the thread on Guns&
(The Guns & Ammo Forum is sponsored by Guns & Ammo magazine & hosted on Outdoors Best's server.)

These letters are reprinted with the permission of Gunnyragg & Gary Gorski respectively.

Here is the initial post at

En Banc Order from Ninth Circuit SILVEIRA V. LOCKYER

Gary Gorski, Attorney for the plaintiffs in the lawsuit to overturn California's Assault Rifle Ban, sent me this today. It is rather lengthy, but it is the dissenting opinions of the judges who voted for the entire panel to hear the case. Constitutional Law Buffs should find it fascinating reading.

As a matter of fact, it gave me a whole new outlook on MILLER -- SCOTUS, 1939. Where the attorneys screwed up in MILLER was not to present evidence that a sawn-off shotgun DID have militia applicability; one of the dissenting judges says as much. The salient point in all the dissenters' writing is that the RKBA is an INDIVIDUAL not a collective right.

This case is going to the Supreme Court and I would ask all of you to get behind Gorski. This is some real action; the kind I can get my teeth into. His e-mail signature gives all the contact information:

Gary W. Gorski

Attorney at Law
("Often Tested, Always Faithful, Brothers Forever")
916.965.6801 fax

The next is a letter sent to the NRA's attorney from Gary Gorski

Gary forwarded me a copy of his e-mail to C.D. Michel NRA Attorney. I am beginning to REALLY like this guy!

Below is the docket entry for Silveira, whereby you, C.D. Michel (the NRA’s attorney), claim that no briefing was ordered per your attached press release below. I just need to know – are your really that stupid, lazy, or just a plain liar trying to play attorney. Let me make a suggestion: stay the fuck out of my clients’ business, and my business. You have no connection with any Second Amendment litigation other than trying to interject yourself into the cases of others. It is now apparent why you have never raised a Second Amendment issue; because you are a walking cluster fuck as an attorney. Where has your so-called litigation strategy gotten you and your clients (i.e. the NRA) – money in your pocket, and that is it. So, go bury your head or ass, whichever you prefer, in the sand and let the real attorneys do what should have be done 20 years ago while you were too busy billing your clients for whatever it is that you do – I can’t figure it out; otherwise, I would not be working for free had you been acting like a true constitutional advocate. Maybe you should also explain in your press release how you opposed the Silveira Petition for Rehearing by raising a standing argument that went out 40, may be 50 years ago – really Chuck, you sound like a first year law student raising some hypothetical esoteric issue in Civ Pro whereby everybody stares at you with a dumbfounded look. I noticed how none of the Circuit judges addressed your stupid standing argument, and I am certain if it was valid, it would have been addressed. You simply look like a fool to the Court, and you are an embarrassment to your clients. By the way, since this is the type of statement I would make to the media, I thought I would just tell it to your face. If you ever want to discuss this in an open forum, I would be more than happy. By the way, I did blind copy this email to the media and those involved in Second Amendment issues. I just want you to know that I would never talk behind someone’s back about how I feel about them. I have no more respect for you than a pile of my dog’s shit – in fact, I have more respect for my dog’s shit because at least it does not smell as bad. But out little boy; the lesson is hopefully over. 12/19/02

Filed order ( Stephen R. REINHARDT, Frank J. Magill, Raymond C. FISHER, ): Defendants - Appellees shall file a response to Plaintiffs - Appellants' petition for rehearing en banc. Fifty (50) copies of said response shall be filed within twenty one (21) days of the filed date of this order. [01-15098] (ru) 1/9/03 Filed Appellees Gray Davis, Bill Lockyer's response to appellants' petition for enbanc rehearing, served on 1/9/03 (PANEL & ALL ACTIVE JUDGES) [01-15098] (ru)

For re release:

This is my PERSONAL opinion, not expressed on behalf of any client.

The Silveira case is still the absolutely wrong case for SCOTUS review.

After consultation with the leading Second Amendment scholars across the country, there is near universal agreement on this. The basic argument of the few in support of taking Silveira to the SCOTUS is that Silveira's lawyers are stubbornly going to do it anyway, so we might as well support them. But we can support the issue ONLY IF AND WHEN they get cert granted by SCOTUS. Until then, it is still a reckless move which plays into the hands of those who would give us a 2A right with no teeth.

FYI, the Nordyke v. Alameda case (challenging Alameda's gun show ban), which also directly raises the 2A issue, is still under consideration for en banc review in the Ninth Circuit. In fact, the court has ordered Alameda County to submit a brief in response to the Nordyke's en banc request. This type of response brief was never ordered in response to Silveira's en banc request, and indicates that the court actually has an interest in the case. CRPA and NRA will submit briefs if en banc review is granted. We would still need to changes a lot of minds, but the Silveira dissents may be influencing the other Ninth Circuit judges.

Remember, the recent Nordyke 3 judge panel decision attacked Reinhardt's Silveira opinion and was cited in the Silveira en banc order dissents - which I must say were precipitated at least to some extent by the Nordyke panel opinion (wherein the judges said there WAS a 2A right but their hands were tied by Hickman).

And let's recall that NRA and CRPA submitted an amicus brief on the Second Amendment in support of the Nordyke's to the 3 judge Ninth Circuit panel (so much for the fringe's "NRA does not want the issue heard at all" theory).

There are now also TWO cases in DC court which are better suited than Silveira for SCOTUS review.

To reiterate a somewhat oversimplified reason why Silveira is a BAD case - look at what Judge Pregerson said in the Silveira en banc order: He believes in the 2A - BUT THE AWCA STILL IS CONSTITUTIONAL. To further understand how a court could do this, look at the Bailey case on Connecticut's AW law - Connecticut had a RKBA provision in its state constitution. Didn't stop the Conn. Supreme court from finding the law constitutional.

A similar thing happened in Oregon. That state RKBA constitutional provision now just protects muskets.

It all hinges on the test applied, and where the court draws the line of protection. "Strict scrutiny" is almost certainly NOT going to be the test. If an AW law is the first case to address the issue, we are probably going to wind up with a "reasonableness" test - something subject to political and subjective application.

Establishing the parameters of that line of protection will mean YEARS of continued fighting in court and Congress even after 2A is confirmed as an individual right. It will be the "full employment act" for 2A lawyers (and unfortunately, uneducated wanna bees), and will require tremendous efforts by pro self defense groups. Those who argue that NRA, etc., doesn't want a 2A case in SCOTUS because they would lose their reason for being (which, by the way, has always been percentage wise more about shooting, safety programs, training, etc, than politics) are legally utterly clueless.

Silveira bites off more than the court (or the lawyers on the case) can chew. It will hurt us.

CRPA, and now additional "friends of the court" will almost certainly be filing an amicus brief in SCOTUS to ask them NOT to hear that Silveira case.

The road to Hell is paved with good intentions

C. D. Michel
Attorneys At Law
Port of Los Angeles Office
407 North Harbor Blvd.
San Pedro, California 90731
Phone: (310) 548-3703
Fax: (310) 548-4813

Gary W. Gorski

Attorney at Law

("Often Tested, Always Faithful, Brothers Forever")
916.965.6801 fax

Finally here's a copy of a letter that Gary Gorski sent to Gunnyragg concerning the NRA's attorney & the Silveira vs. Lockyer case:

Another e-mail from Gorski regarding the NRA lawyer's Press Release. You think I am the only person that thinks the NRA sucks as a Second Amendment organization?
This attorney is serious in his effort to bring the case before SCOTUS. Why doesn't the NRA support it?

------------------Gorski's E-Mail ------------------

Michel is wrong, uninformed, completely inexperienced in S Ct litigation, and it shows.

Apparently Michel and his associates are unaware of the intricacies of S Ct practice. It takes a lifetime and you learn something new every day. San Pedro, CA, is a long way from Washington, DC, and that shows too.

NRA also has a poor track record on 2A issues. The list of 2A cases won by the NRA is very short. NRA politicians dictate their litigation, which is why they so often lose and are wrong.

What Michel misses entirely is that the S Ct very often takes cases in order to decide fundamental issues, irrespective of specifics, such as the AW issue. That is not an issue in Silveira until trial. Complex fact issues are for trials first and there has been none yet in Silveira.

Look at Gideon, Miranda, US v Lopez, Brown, Roe. The details of the specific laws and the specific parties are lost in history, but the fundamental principles are not.

The issues presented to the S Ct in Silveira are standing, individual rights, incorporation, and strict scrutiny. That is what the cert petition will raise, but of course Michel and his colleagues cannot be trusted with any detailed material because they have a Master to obey and an agenda to sabotage the cases in which NRA is not involved.

Michel's is a political NRA approach. They want to be in and control the loop the way they see it, even though they have no plan or ideas on how to maximize a S Ct outcome. Their DC copycat case is an example of how not to win a broad ruling, and only how to dump in the sandbox like kids do. It is litigation graffiti, spam, and a wormlike virus.

The recent Silveira decisions show six federal appellate judges adopting the view of the Silveira supporters on standing, individual rights, and incorporation. Only one took a pot shot at AW. That is six more than the NRA has persuaded lately.

The smart money is on the Supreme Court taking a similar approach to that of Judges Kozinski, Gould, and Kleinfeld, as well as the Emerson judges and leaving the AW issues for trial. There is no record or evidence on AW at this stage.

Michel is not what you would call a gifted progressive insightful constitutional scholar. He's there in San Pedro knocking out the hours for his Masters. A few law professors may agree with him. Others disagree. None go to him for ideas or advice.

The closer you are to the Court, the more you realize these are new questions for them, but the arguments for a strong RTKBA are powerful, persuasive, and well documented. NRA simply never figured out how to do this.

NRA supported Emerson despite the underlying facts, and the mediocre cert petition coming out of Lubbok hardy raised the Second Amendment, mainly the losing commerce clause arguments.

With Silveira there has been a great deal of time to prepare thoroughly. Unfortunately, NRA has not used that time wisely or at all, but is still preaching worn out negativism.

A strong RTKBA is a concept whose time has come. Unfortunately, NRA is far behind. They are deceiving their members also and trying to raise money using Silveira. That may be telemarketing fraud. Nordyke did not even raise the Second Amendment issues, and is a narrow equal protection case. NRA likes the case because they think they can control the lawyer handling it.

The strongest reason for supporting Silveira is that it raises the important 2A issues very thoroughly in an appeal from a decision written by Judge Reinhardt. It's hard to say whether Reinhardt or Michel is most off base, but the two are in bed together and with Sarah Brady, so to speak.

Thursday, May 08, 2003

Eugene Volokh raises some very interesting points about what standards are used to determine if a law is constitutional. The gist of it is that there are different standards for different situations, some being subject to stricter scrutiny than others. He therefore concludes that the 'strict scrutiny' test may not necessarily be applied to cases involving the Right to Arms.

Prof. Volokh has stated before that he does not think (but is not positive) that the [federal] assault weapons ban violates the second amendment due to its narrow scope. If the ban were broader & prohibited more arms or more types of arms then perhaps it would, but he reasons that because it does not affect the ability of the populace to have arms then it is perhaps constitutional.

So let's explore this subject.

I do not question Prof. Volokh's understanding of how tests are applied in matters of law to determine whether or not they comply with the constitution. What I do question, as many others probably do, are the specific tests applied to specific laws. While it is true that different interests exist that cannot necessarily be addressed by one static rule I think there is a static rule which can be applicable in most cases: "Is the governments interest so compelling that it merits the restriction or prohibition of a fundamental Right?"

In order to apply this rule we have to determine what constitutes a fundamental Right, & whether all aspects of the actions used to exercise that Right are considered to be part of the Right itself, or merely separate but closely related actions. I refer you back to an earlier post in which I argue that the Right to Arms is in fact absolute.

In this case we should examine the Right to Arms & how 'assault weapons' may or may not be necessary to the exercise of this Right. But first let’s look at what ‘assault weapons’ are.

Assault weapons by practical definition are shoulder fired weapons, firing a medium-powered cartridge, capable of fully automatic fire & are of a handy size (i.e. having a barrel shorter than 20" or so). The phrase was first used by Adolf Hitler in describing a new weapon (the SturmGewehr 44) designed for use on the eastern Front in WW2.
The legal definition of assault weapon is not dependant upon mechanical function as the practical definition is. Instead it relies strictly upon cosmetic features (with the exception of ammunition feeding devices) to determine a weapons' status.

U.S. Code Title 18 Part 1 Chapter 44 Section 921 Subsections 30 & 31 respectively define the objects of the Violent Crime Control & Law Enforcement Act of 1994, otherwise known as the Assault Weapons & High Capacity Magazine Ban.

" (30) The term ''semiautomatic assault weapon'' means - (A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as - (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; (v)Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M-10, M-11, M-11/9, and M-12; (vii) Steyr AUG; (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12; (B) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of - (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a bayonet mount; (iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and (v) a grenade launcher; (C) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of - (i) an ammunition magazine that attaches to the pistol outside of the pistol grip; (ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned; (iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and (v) a semiautomatic version of an automatic firearm; and (D) a semiautomatic shotgun that has at least 2 of - (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a fixed magazine capacity in excess of 5 rounds; and (iv) an ability to accept a detachable magazine. (31) The term ''large capacity ammunition feeding device'' - (A) means a magazine, belt, drum, feed strip, or similar device manufactured after the date of enactment of the Violent Crime Control and Law Enforcement Act of 1994 that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition; but (B) does not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition. "

The weapons that are prohibited are essentially semi-automatic versions of weapons that have a 'military' appearance & are capable of using magazines with a capacity of more than ten rounds.

How does this affect the public?

Since the ban took effect on September 13th of 1994 the weapons that were manufactured prior to the ban were grandfathered. Weapons manufactured after the ban had to comply with the conditions of the ban, namely not having the undesirable features defined by the ban. Manufacturers started producing weapons w/o bayonet lugs, flash hiders, etc... while retaining the same mechanical function.
They also started using what is called a 'thumbhole' stock. This stock has a functional pistol grip, but it is connected to the main body of the stock. For example, here is a picture of a VEPR K rifle with a pistol grip. In contrast here is a picture of basically the same rifle (VEPR) with a thumbhole stock. As another example here is a picture of an M96 Recon Carbine with a pistol grip. To make it legal in California they have omitted the pistol grip altogether as seen here. Mechanically the rifles pictured are no different from one another. They fire one shot for each separate squeeze of the trigger.

The availability of pre-ban weapons & magazines, except for models introduced a short time before the ban, is not really a concern. The types of weapons & magazines that were prohibited had been in production for almost 50 years. What did become an issue were after-market accessories.

Under the assault weapons ban it is perfectly legal to acquire a folding stock & attach it to a weapon manufactured before the ban, but attaching the same stock to a weapon manufactured after the ban is a felony. This applies even if the weapon in no other way violates the ban. A good example would be the Ruger 10/22. It's a semi-automatic rifle chambered for the .22LR cartridge. The .22LR is a favorite of small game hunters because of its relatively low power, negligible recoil, & low price. The 10/22 has been manufactured since the 1960's & is a very popular rifle. A common practice was to buy a 10/22 & then fit it with after-market accessories, such as a folding stock. One is shown here about half-way down the page. To get an idea of what the 10/22 would look like with a folding stock here is a picture of a 'folding-style' stock on a 10/22. (The 'folding-style' stocks are different than folding stocks in that they are permanently affixed in one position, hence negating the advantage of a folding stock but retaining the look. The real advantage to folding stocks is they allow storage in compact spaces, not that they may be fired as many contend like a pistol when the stock is folded.) If I bought a brand new Ruger 10/22 & replaced the factory stock with a folding stock, I would be committing a felony. The mechanical functioning of the 10/22 would be the same, only the appearance would have changed.

Another consequence of the ban is that pre-ban weapons & magazines have increased significantly in value. In some cases pre-ban weapons &/or magazines have quadrupled in price. Some have remained fairly consistent as far as price is concerned, but these are generally the older items that have been in production for a very long time & domestic distributors have a substantial supply of them. So while the price of a 15 round magazine for the Beretta 92 in 9mm is not severely inflated (between $30 & $60), the price for a 16 round magazine for the Para-Ordnance P-16 is ($130).

It can be argued that the object of the ban is so narrow that it does not hamper anyone’s ability to own arms generally. At the most it prohibits possession of certain types of arms, which in many cases can still be had if one is willing to pay the inflated price. & there is only a small percentage of the populace who would believe they have need of these specific types of arms.

However I find that even if the above arguments were plausible in fact they would still lack sufficient justification for the prohibition or restriction of these types of weapons.

For instance imagine a law that restricted speech that involved politics. I think most would agree that would be a violation of the First amendment. Similarly we could reason that a ban on all weapons that had defensive uses would be in violation of the Second Amendment. But what about a law banning speech about small unit infantry tactics? The majority of such discussions are harmless, but I’d imagine a few have been used for criminal purposes. Obviously only a small percentage of the population would be likely to engage in that type of discussion. If one does wish to talk about small unit infantry tactics, one could do so by joining a military institution, either a college or a branch of the military. & the majority of speech would not be affected by this hypothetical ban, so is it narrow enough in scope to comply with the Constitution’s prohibition upon Free Speech?

The answer is no. While there is the danger that discussion of small unit infantry tactics could be used to plan & execute a crime, it could also be used to repel an invading army, or most likely to pass the time discussing military history or current events.

Likewise there is no justification sufficient enough for the government to ban weapons, even if that ban affects only a small percentage of the total number of available weapons.

According to, who credit the original data to David Kopel, assault weapons account for less than 3% of firearms used in crimes.

For perspective, according to the Center for Disease Control in 1999 38% of the total traffic deaths were due to alcohol related crashes. You'll find this figure here on page 6 of the PDF. Since it is already illegal to drive under the influence of alcohol the only option left to the legislature would be to either ban cars or ban alcohol. But the legislature doesn’t consider doing this, even though banning automobiles would save approximately 42,000 people according to the CDC's 1999 figures (page 34 of the PDF). Merely banning alcohol would save 15,786 people according to the same CDC study.
The legislature however is not even contemplating a ban on alcohol or automobiles.

According to Prof. Volokh's own observations of a CBS report, firearms related deaths accounted for 28,663 people, of which a little over 11,000 were homicides. If we were to assume that 3% of the homicides & accidents (786) combined were contributable to assault weapons then we would arrive at 355 deaths according to my calculations. (Please note that this estimate is in all probability very high in relation to actual firearms deaths attributed to assault rifles.)

So the legislature feels it is of urgent necessity to ban an object which may save 355 lives per year, but will not even contemplate banning an object that could save 42,000 lives per year or a substance that could save 15,786 people per year.

Now to be fair Prof. Volokh has argued, & quite persuasively that firearms bans are usually bad policy even if there is no constitutional question. I contend however that part of the reason that the assault weapons ban is contrary to the Constitution is precisely because it is bad policy.

I am not trying to state that if the assault ban were effective then it would be permissible. But precisely because of its ineffectiveness it fails to demonstrate any substantial government interest which would merit the restriction of a Right, even in part.

The Constitution describes the powers delegated to the federal government. It is subject to some interpretation in parts, & in my opinion has been subject to too much interpretation (i.e. the commerce clause). The Bill of Rights specifically limits federal government (& via the 14th amendment state governments) from interfering with the Rights of the people & the states respectively. The Second Article of the Bill of Rights specifically protects weapons from prohibition. It does not prohibit regulation entirely, but it does seem clear that if the regulation impedes upon ones ability to own or possess a weapon or weapons then it is not constitutionally permissible. This means the federal government could pass a law requiring a certain type or caliber of arm be purchased but not that a certain type or caliber of arm could be banned altogether.

Now where do assault weapons fit in with the Right to Arms?

The main purpose of the Second Article of the Bill of Rights was to ensure that the federal government would not prohibit martial arms to the populace. This was so the people could not be intimidated by the organized military of a government bent on domination, be it foreign or domestic. In order to accomplish this final check against tyranny 3 things are necessary: the Means to resist, the Will to resist & the Knowledge to resist. It can be argued that the First Article of the bill of Rights would protect the Will to resist & the Knowledge to resist as much as it is possible to protect these two things, even though it doesn’t mention them specifically. However the Second Article of the Bill of Rights specifically protects the Means to resist.

Assault weapons are a necessary component of having the Means to resist oppressive government, whether foreign or domestic. As long as modern militaries are equipped with assault weapons, & perhaps even for a long time after modern militaries develop a better, more effective weapon for general issue, then assault weapons will remain a necessary part of the Right to Arms. While it is entirely possible that a successful defense against government oppression or foreign invasion could be affected using only bolt action rifles whose design goes back over 100 years, that’s not to say it should be the only option. One could successfully walk up 19 flights of stairs carrying a 100 pound chair, but that’s not an endorsement for doing it, especially if there’s an elevator handy.

Does the assault weapons ban place a significant burden on the people?

I would have to say yes. Even if relatively few people would wish to own assault rifles I see no reason why their Rights should be less valuable than say, a majority who wished to own handguns. While it does not affect every person, or perhaps even the majority of people I would say that it affects a sizable minority in the least. While assault weapons are still available there price is artificially influenced by the ban & therefore could place them out of the economic reach of many. & probably of most concern is the percentage of gun owners who are not able to legally alter their weapons through after-market accessories to suit their needs.

So is the government interest in banning assault rifles so compelling as to over-ride the Rights of the people?

I think not. Ideology aside there is no practical justification for the government to ban a category of weapons that are used so infrequently in crime. But even supposing there was a significant percentage of assault weapons used in crime it would not be justification to restrict the Rights of the people for the acts of criminals.

I have a great deal of respect for Prof. Volokh’s research, conclusions & opinions, this despite the fact that he is only a few years older than I. I must in this case respectfully disagree with his idea that because of its limited scope the assault weapons ban may be constitutional. However I do not doubt for a second that more judges would agree with Prof. Volokh’s theory than would agree with mine. This is not to admit error on my part, but to realize that there are many justices who do not agree with the idea of limited governmental power for the sake of the Right to Arms.

Tuesday, May 06, 2003

Instapundit carries the news that the 9th Circuit is divided over the Second Amendment. This comes as a result of the decision by the 9th Circuit to not rehear en banc the Silveira vs. Lockyer case in which a California assault weapons ban has been challenged on the grounds that it is violative of an individual's Right to own & possess Arms.
Eugene Volokh has some specifics on the dissent. It seems 6 of the judges did not agree with the courts decision, or at least the reasoning behind the decision. Prof. Volokh also comments on Judge Kleinfeld's dissent.
What this means in practical terms is that the case is now open to review by the Supreme Court, although as Prof. Volokh points out there is some question as to whether they will hear it.
HowAppealing has some thoughts on this decision. But if you're not satisfied with merely reading the summation & opinions of bloggers, you can see the 9th circuit's decision for yourself here. & you can read the original (amended) decision in the Silveira vs. Lockyer case here.

Update: Clayton Cramer has posted some interesting excerpts from the dissenters.
Jeff Cooper's Commentaries.

I found this while searching for something else, as is often the case in this world. If you're not familiar with Lt. Col. Jeff Cooper he is a very experienced firearms writer. He did his time in the military, was a history professor & has written quite a few books as well as countless magazine articles. He teaches marksmanship, both basic & advanced. His views on the proper use of the rifle will make you re-think the way you shoot & he's no slouch when it comes to pistol-craft. He was one of the main drives behind the Bren-Ten & the 10mm cartridge in the early 80's & he came up with the 'Scout Rifle' concept in the mid 80's. Last but not least he is credited as being the founder of 'practical marksmanship'. Many of his techniques that were innovative when he first began teaching them are now basic training in military & police departments.

If you're not familiar with him then you should rectify that. The above link is a good start. He currently has a column in Guns&Ammo magazine. If you find he seems to know what he's talking about, then perhaps you should look into his books. I would recommend Art of the Rifle as a good one to start with.

This has been your public service announcment.

Monday, May 05, 2003

The NRA has one of its members arrested for passing out pro-gun literature at an NRA event.

"April 29, 2003 – The National Rifle Association apparently had one of its members, a pro-gun activist, arrested at its national convention on Sunday, April 27, 2003 in Orlando, Florida for handing out pro-gun freedom literature from the Free State Project, Inc. The unlucky NRA member was Timothy Condon, a Marine Corps Vietnam veteran and Director of Member Services for the rapidly growing Free State Project. He was arrested by the Orange County Sheriff's Department Sunday for "trespassing" outside the Orange County Convention Center when he refused to leave or cease handing out the Free State Project literature (see sample).
'I believe there is a First Amendment problem with prohibiting people from passing out political literature on public property where there is no problem caused by it,' said Condon, who also happens to be an attorney who practices law in Tampa, Florida. "What is even more bizarre to me is that the National Rifle Association would have one of its own members arrested for passing out literature that supports the Second Amendment right to keep and bear arms."

Apparently he was passing out literature promoting the FreeState Project, an effort to politically take over a state & attempt to bring that state in line with certain views concerning Freedom, Rights, etc. A sample of FreeState Project literature can be viewed here.

It will be interesting to see how this turns out. Legally I think the charges will be upheld, as the public property was rented out by a private organization, thus creating a temporary ownership of the property which would negate the prohibition of governmnet denying free speech on public property. However this probably wil do some harm to the NRA's already questionable reputation as it should.

Keep & Bear tells us that the Cato attorneys have asked the NRA to butt out of their court case that challenges the D.C. gun ban.

An excerpt from the Keep & Bear story:

"The CATO lawsuit was already tackling the D.C. gun ban -- the redundancy, coupled with the complication NRA brought in, will cost time and allow anti-gunners to rally against us. CATO's suit didn't go after Ashcroft and thus won't bring the full weight of the Justice Department and their competent attorneys with unlimited resources in as defendants. Is NRA really this stupid? Or do they actually need help on their case -- help from the superior legal team at CATO? Or, worse yet, are they deliberately trying to sabotage the CATO case? Few could deny that NRA is seeking to hog some credit for the good work of others -- especially so since the NRA hasn't filed a pure Second Amendment case and pursued it to the Supreme Court since their founding in the late 1800's. Perhaps it's all of the above."

The story has links to various backgorund material such as motions filed by the Cato attorneys to seperate their case from the NRA's. It also covers the charges made by the Cato attorneys that the NRA counsel is engaging in professional misconduct & is damaging their case.