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Can Governments Ban Gun Stores? Amicus Brief in Supreme Court Case

Amicus brief in Supreme Court cert. petition argues that Alameda County, Calif., ban on new gun stores violates the Second Amendment.

Can a county prohibit all new gun stores within its jurisdiction? That question is currently before the U.S. Supreme Court, in a petition for certiorari. Today I filed an amicus brief arguing that the Court should grant cert.

The case began several years ago, when Alameda County forbade John Teixeira and his partners to open a gun store anywhere within the jurisdiction of the county. The plaintiffs are represented by Alan Gura (winning attorney in District of Columbia v. Heller, and many other important Second Amendment cases), and Don Kilmer (the leading pro-Second Amendment attorney in Northern California). They lost in the district court, and then won a 2-1 decision from a Ninth Circuit panel. (Here's my previous VC article analzying the panel decision). The County then petitioned for en banc review, which was granted. (Here's Eugene Volokh's article on one of the briefs arguing against an en banc grant.)

En banc, the majority held that there is no Second Amendment right to engage in firearms commerce. According to the majority, gun laws from the colonial and founding periods show that: 1. Some colonies sometimes banned gun sales to Indians. 2. Colonial governments fostered the arms business, such as by buying firearms to give to militiamen who could not afford their own. From this historical record, the majority concluded that government control of firearms commerce was so pervasive such commerce falls outside the Second Amendment.

In the majority's view, nobody even has standing to raise a Second Amendment challenge to a firearms commerce prohibition, unless that person can show that the prohibition has prevented her from being able to acquire a firearm.

The plaintiffs' cert. petition to the Supreme Court mainly points out the the Ninth Circuit applied the rational basis standard to a Second Amendment case. This is expressly contrary to the Supreme Court's rules articulated in District of Columbia v. Heller and McDonald v. Chicago, and also contrary to almost all post-Heller cases from the Circuit Courts.

My amicus brief addresses two related issues. First, the other Circuit Circuits (including the Ninth Circuit in previous cases) have held that when a government contends that an activity is outside the scope of Second Amendment rights, the government bears the burden of proof. The government must prove that the activity is beyond the historical and traditional understanding of the right to arms. In Teixeira, the government did not even attempt to do so. Instead, the Ninth Circuit majority did the County's work for it, and provided a shallow and erroneous historical rationale.

As the amicus brief explains, a key reason that a decade-long political dispute between Great Britain and American colonies turned into a war was the British government's attempt to suppress arms commerce. Royal governors illegally seized merchants' gunpowder and firearms. King George III embargoed the import of arms and ammunition into America. Americans vehemently objected, describing the prohibition of arms commerce as an effort to enslave the Americans, by leaving them no means of resistance to tyranny.

Americans did everything possible to defeat the British suppression of arms commerce. Benjamin Franklin masterminded arms and gunpowder imports from other countries. All forms of domestic production were strongly encouraged.

Then on April 18, 1775, King George renewed the embargo. On that same day, Royal governor Thomas Gage dispatched Redcoat soldiers to seize a large cache of gunpowder in Concord, Massachusetts. Paul Revere, William Dawes, and Samuel Prescott rode to raise the alarm. Forewarned, Americans were forearmed. At Concord Bridge, they fired the shot heard round the world. Swarms of armed Americans harried the Redcoats all the way back to Boston, nearly wiped them out, and besieged the city. The War of Independence had begun. Rather than let a government effectuate a prohibition on arms commerce, Americans started a war against the most powerful military in the world.

The above story is told concisely in the amicus brief, and in more detail in my article, How the British Gun Control Program Precipitated the American Revolution, 38 Charleston Law Review 283 (2012).

Amici on the brief are: Cato Institute, Jews for the Preservation of Firearms Ownership, Independence Institute (where I am Research Director), and the Millennial Policy Center. My main co-author on the brief was Joseph G.S. Greenlee. The Cato lawyers on the brief are Ilya Shapiro, Trevor Burrus (my former student at Denver University law school, and my intern in 2010), Clark Neily (part of the winning team in Heller), and Matthew Larosiere. Information about the case is available on the Scotusblog docket page, although the amicus brief has not yet been uploaded.

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  • Eidde||

    "Can a county prohibit all new gun stores within its jurisdiction?"

    Sure, and a county can ban all new internet cafes within its jurisdiction, too. After all, colonial governments had various restrictions on free expression, like banning obscenity, so clearly there's no First Amendment right to engage in speech-related commerce.

    /sarc

  • ravenshrike||

    Mmmm, more like ban all news organizations within county limits. Internet cafes would be closer to gun ranges. Still bullshit of course.

  • Seamus||

    Better analogy would be book stores, or news stands. Problem with any of these analogies is that municipalities can probably come up with legislative "findings of fact" about why having too many gun stores is bad for the public, but not with any similar findings of fact about book stores or news stands that would pass the straight-face test.

  • santamonica811||

    Well, surely a county can impose *some* limits on gun shops, right? There are (or could be) limits on bars, casinos, strip clubs, movie houses, bowling alleys, etc etc. I would think that, as a general rule, counties could limit pretty much anything, no? (Not sure about places of worship [First Amend], schools, group homes for the disabled [ADA], or exceptions like that.)

    Obviously, if imposing limits are reasonable, then there will be huge conflicts about what the right number should be, and there will be lots of litigation about this. But if there are allowed to be limits, then it's clear that a county could argue, "No new X, b/c we've already reached our max "reasonable" number of X for this county."

    A more interesting question to me is: Can a county say, "Not only are we already at the reasonable number of X, but we're 100% past that number. No new X. AND, when current stores for X shut down, no new ones can replace them...until the number of X drops below half the current number." I am not arguing that this would be a good policy or a bad policy. Just wondering if it would be a legal policy?

    If it is legal, can a county tell an existing business, "Hey, you have to shut down. There are 33 stores for X in the county, we only need 22, so you and 10 others will have to close down." Yes, we all see the manifest unfairness of this. But would doing this be, nonetheless, legal?

  • ravenshrike||

    Would it also be legal for the county to say that there are 'enough' news organizations and not allow one to be opened? If not, why?

  • santamonica811||

    My default answer would be: Yes, the govt can do this, unless doing so would be a constitutional violation (or violation of some legislation: ADA, et al). The answer to your hypo: I don't know. If the govt could, in fact, not do it, my off-the-top-of-my-head answer would be that to do so would (as with limiting churches, mosques, etc) violate the First Amendment.

    But, I really do not know. I am certain that it's a pretty interesting area of the law.

  • ravenshrike||

    The press that is around is still perfectly free to print whatever they want. So, obviously, are people. They are only restricting the number of organizations that purvey information as a service. Clearly under your test this would be perfectly legal.

  • santamonica811||

    Raven,
    I take it that you have not yet been to law school.

    I do not think the answer is clear at all. (Obviously, if there's a case that's right on point, then I'd be wrong--there actually *is* a clear answer.) When non-lawyers use the word "clearly," I've found that they usually mean, "It's clear to me, even if other people have a more-nuanced perspective, and/or other people take a position opposite my own."

  • JesseAz||

    It always amazes me when dumb lawyers who are stumped resort to the "you have not been to law school" meme. My god man, just say you have no response.

  • santamonica811||

    Jesse,
    You can skip the smart-ass comment. My point is obvious. We say, "X is clearly true" or "X is clear wrong." ALL THE TIME. But very very very often, we use 'clearly' in situation where the who point is that it is NOT clear.

    I am sorry that this (obvious, to me) point flew over your head. This was one of the first things we learned in law school: "Do NOT say that an issue is clear when it is, in fact, in dispute. Judges hate that sort of sloppy or dishonest argument and will think less of all your other arguments if you do that."

    Sensitive much? We usually think of hyper-sensitive snowflakes as landing only on the liberal side. Thanks for proving that trope wrong.

  • Rev. Arthur L. Kirkland||

    I find is amusing when a bunch of socially disaffected code writers, back office engineers, and third-shift desktop support technicians opine about legal intricacies, often calling someone like Prof. Kerr or Prof. Somin an idiot for being insufficiently conservative or, worse, for being a libertarian.

  • Careless||

    My default answer would be: Yes, the govt can do this, unless doing so would be a constitutional violation

    What an utterly useless sentence

  • jph12||

    Useless? It's a true statement about everything the government does. What could be more useful than that?

  • santamonica811||

    (At the risk of annoying Jesse). When lawyers and people who understand the law (and how the legal system works) make common-sense law-based points, it really seems to anger people who do not yet have this knowledge-base.

    I do appreciate the defense. But, much like when I had to deal with 3rd graders who were having a tantrum; I find it better most of the time to just smile kindly and say, "Thank you for your thoughts. I appreciate you taking the time to give the feedback."

  • ||

    It angers us because it makes no sense. I have that "knowledge base" and it still angers me. Because I understand the point is to get the result desired, not end at the correct result.

    You can make snide retorts like "dealing with third graders" but in the end, you are CLEARLY wrong.

  • JesseAz||

    It doesn't offend me, it shows the weakness of your logic and argument. Even legal professors differ on analysis. Look at the number of briefs arguing in a supreme Court case. Your attempted appeal to authority, with yourself as the authority, is laughably idiotic. And you double down on it. It is hilarious.

  • Jimbo||

    What I do know with absolute certainty is this: santamonica is a douchebag.
    (Just look at his handle)

  • Rev. Arthur L. Kirkland||

    What's santamonica811's major malfunction?

    Not a bigot?

    Not sufficiently backward and gullible?

    Not a resident of depleted backwaters?

    Not an authoritarian wingnut?

    Adequate education?

  • Careless||

    what could be more useful than "this bag is bigger than that bag, unless it is not"?

    Uh, anything that conveys any useful information, of course. It was a worthless sentence.

  • FlameCCT||

    You have a large problem with your hypothesis. The government cannot discriminate when it comes to commerce, preferring one business over another business that provides the same (similar) services.

  • santamonica811||

    But surely--assuming your point is legally correct--it *can* discriminate between existing businesses and ones that want to enter marketplaces, right?

    It's why there are not 3 bars on each block near some college campuses...that particular area has said, "We have reached the max number of bars for this geographic area. No one else can enter this marketplace...you'll have to wait until one of the bars goes out of business, until you can buy out one of the existing bars, etc."

    (I'm not convinced that your premise--re non-discrimination between similar businesses--is actually correct. I think govt discriminate all the time when handing out business licenses. They discriminate on the basis of a million different things (1 builder will get a permit b/c she will provide low-income housing for a percentage of the units, while the 2nd builder is refused the permit, as he will not make this concession. Two people want to open different Mexican restaurants. The one who is willing to provide 4 parking spots is rejected; the one willing to provide 10 parking spots is approved. 5 people want to open a pot dispensary. 4 are rejected (ie, discriminated against) due to past violent criminal histories, or due to funding coming from shady sources, or . . .

    Discrimination happens all the time. And thank goodness for that. Benign discrimination is a huge benefit to living in a society. Invidious discrimination (based on race, sex, religion, etc etc) is awful and we all condemn that.

  • ||

    No, not a properly functioning government.

    There is no just reason that a block can't have 15 bars. We permit the government to get away with it because that's the way its always been, not because its right.

    There is no justification to deny a business from opening because a couple people decided they don't want any more. If there is too many business operating, they will go out of business on their own volition.

    This is not "benign" discrimination. It's preventing people from making a living and others from enjoyment based on the thoughts of a very tiny minority.

  • santamonica811||

    Pat,
    Okay, if you are making the argument that the law *ought* to be X, then that's fine. When someone give their opinion on what the law/policy should be, then--of course!--there are no wrong answers. I thought you were talking about what the law actually is.

    When you wrote, ". . . The government cannot discriminate . . ." it made me think that you were discussing the actual law. If you had, instead, written, "The government should not be permitted to discriminate . . ."; your point would have been a smidgen more clear. To me, at least. :-)

  • Milhouse||

    Sure it can. Point to the case saying it can't.

  • regexp||

    Obviously, if imposing limits are reasonable, then there will be huge conflicts about what the right number should be, and there will be lots of litigation about this.

    Happens all the time. Just in the last few weeks Target Corporation bought an existing liquor store to shut it down because the local county put a limit on the number of liquor stores that could be run and Target wanted to sell liquor from their newly opened store.

  • santamonica811||

    Exactly right. Anything that depends on a case-specific or fact-specific analysis will, almost by definition, lead to more litigation. Terrible if you're the one involved. But better, I think, than the alternative--that bright-line rules swallow up all the gray-area cases, and result in far more unfair decisions.

  • ||

    Exactly wrong. The bright line that will lead to less ligation is clear- allow everything.

  • santamonica811||

    Pat,
    My "exactly right" meant that I agreed with his analysis. NOT that I think it's a good result or a fair result.

  • Morbo||

    Thing is, the 21st Amendment gave the states all kinds of leeway in terms of what they are allowed to do with regards to the sale and consumption of alcohol, so things that normally wouldn't fly are perfectly kosher if alcohol is involved.

    There is no such leeway in the 2nd Amendment.

  • Harvey Mosley||

    The question shouldn't be can a county impose some limits on gun stores. The question should be why should the county be able to apply these limits to gun stores without showing that these limits are required to fulfill a compelling government interest. If the answer to why the county is doing this is because "eww, guns are icky" then they shouldn't be able to impose these restrictions.

    There are two instances when I would say that the county could impose what is a defacto ban on new shops. If there were reliable evidence that gun stores cause more crime than other stores not subject to the restrictions or if all new (gun and non-gun) retail stores were subject to the same rules then I would say that they are allowable restrictions.

  • Scarecrow Repair & Chippering||

    Exactly. What would the Ninth think of a county banning all newspaper sales or all churches? What about banning all abortion clinics?

    The hypocrisy is palpable.

  • FlameCCT||

    Especially when said county is in the Progressive Plantation California and under the 9th Circus Court Jesters!

  • Gene Ralno||

    Leftists would like nothing better than to trigger a rebellion. It's one of their primary goals. Splitting the nation would create horrendous chaos and more opportunities to indoctrinate the weak minded individuals who heretofore didn't know history from fantasy.

  • Jason Cavanaugh||

    Oh, you happen to have a copy of the Leftists Goals and Motives Handbook? Can you be so kind as to share that information with the rest of us, or are you just making a dumb partisan comment?

  • FlameCCT||

    Progressivism is just Communism with better propaganda. I hear Alinsky's Rules for Radicals is popular amongst the Progressive Left.

  • Rev. Arthur L. Kirkland||

    Progressives are communists.

    Wingnuts like FlameCCT are cranky, stale-thinking, half-educated bigots.

    Where is the hope for America?

  • Rev. Arthur L. Kirkland||

    Hey, Gene Raino, which part of current conservatism is your favorite -- the mutifaceted bigotry, the childish superstition, or the general, stale-thinking backwardness?

    My hunch: The racism. Or maybe the misogyny. Could be the religion-based gay-bashing. So many retrograde, authoritarian right-wing positions from which to choose.

    Carry on, clinger.

  • ||

    Since none of that is part of current conservatism, you question is moot.

  • Rev. Arthur L. Kirkland||

    Your position is that conservatives stopped the gay-bashing, quit engaging in race-targeting voter suppression, no longer rely on bigotry in crafting campaign commercials, no longer defend wife-beaters in the White House? At what time this morning do you contend this about-face to have occurred?

  • Seamus||

    Good point. I'm pretty sure they haven't stopped beating their wives, either.

  • Rev. Arthur L. Kirkland||

    Not the ones working in the Trump White House, apparently.

    Mostly, though, right-wingers just appease wife-beating rather than engaging in it.

    I think.

  • Sarcastr0||

    I love how the right is all 'the left want all dissenters dead or brainwashed' and the comments on Breitbart and Free Republic and the like are nonstop liberal murderation fantasies.

    If you're generalizing the other side as cartoonish villains, you might be the cartoon.

  • jph12||

    So are you admitting you are a cartoon, or just completely lacking in self-awareness?

  • Sarcastr0||

    Are you enjoying the logical paradox of my last sentence, or do you think I believe you are a cartoonish villain?

  • jph12||

    And it's completely lacking in self-awareness for the win! The underdog put up a good fight, but never really had a chance.

    The day might come when I enjoy one of your sentences, but it's certainly not today.

  • Kazinski||

    I hope after the Supreme court disposed of this absurdity from the 9th, that they move on and issue a real ruling on Peruta.

  • mad_kalak||

    The 7th said Chicago's ban on all gun sales was unconstitutional, so there is a clear circuit split. I hope they take the case up and with a solid 5-4 pro-gun majority use the 7th's reasoning.

  • Stephen Lathrop||

    The case began several years ago, when Alameda County forbade John Teixeira and his partners to open a gun store anywhere within the jurisdiction of the county.

    Maybe I'm confusing this with some other case. I thought the issue was that the county had some kind of location requirements for new gun stores, requirements that applied to everyone—not that the plaintiffs had been singled out and forbidden. Help me out please, if that is wrong. If I am right, then Kopel ought to figure out a more forthright way to present the facts.

  • Junkie||

    My understanding is that they had a set of location requirements that excluded all locations in their jurisdiction

  • Noscitur a sociis||

    I tried to copy the procedural summary from the en banc opinion, but it significantly exceeded the character limit. Essentially, Teixeira applied for a conditional use permit to open a gun store. The permit was initially denied because the zoning ordinance required the store to be at least 500 feet from a "residential district", and part of the exterior wall of the proposed store site was 446 feet from a house. The zoning board then granted Teixeira a variance from the zoning requirements, which would have allowed the store to open. But a group of nearby residents appealed, the and the county board of supervisors decided to revoke the permit. Teixeira was unable to find an alternate suitable location that would satisfy the zoning requirements.

    I think that's fairly characterized as the county forbidding him from opening a gun store.

  • Stephen Lathrop||

    I disagree with your conclusion. What you have described seems to be a situation in which Teixeira did not find a business location which suits his budget, suits his business plan, and also satisfies zoning. I don't see why the county owes him, or anyone, relief on such a basis.

    Even assuming there are zero locations left in the county which are both available and also fulfill the distance requirement (which I doubt), why would the county be required to alter its zoning to remedy that? There are already multiple gun stores in the county—enough so nobody can make a case that the county has systematically excluded gun availability for its citizens—and based on the OP it looks like Teixeira has not even tried to make that case.

    Moreover, Teixeira would presumably be free to buy an existing gun store, or an interest in one, and keep it operating. If so, then of course Kopel's absurd assertion that Teixeira has been personally banned from the gun trade is false on that ground, as is the ". . . Ban Gun Stores" headline.

    It is a simple fact that not every proposed business is going to find a location to suit its particular requirements in every community. This case seems to rest on a desire to overturn that in the case of businesses which sell guns, and to claim for them a right to set up anywhere they find convenient, a right which no other kind of business can have. That is overreach.

  • santamonica811||

    You summarized the case and the issue far more neatly and clearly than I could have done.

  • ||

    And ended up with the wrong conclusions as well.

  • Stephen Lathrop||

    Furthermore, why should anyone suppose that someone who wants to open a gun store should be able to find a suitable location everywhere, at all times. I don't think Teixeira has argued that not one location in Alameda County potentially satisfies the law. I think he has argued that none was available to him when he looked, while applying all his other business criteria. Let him wait for the right property to become available—or show that not one conforming property in the County, at any price, could be had, ever. If he could do that, he might have a stronger argument.

    The more I reflect on this, the more the case looks like Kopel and the gun lobby trying to blast open a broad no-zoning-for-gun-businesses exception, to apply across the country.

  • Michael P||

    According to the ruling the County was appealing: "In preparation for the suit, Teixeira commissioned a study, which determined that, as a result of the 500-foot rule, 'there are no parcels in the unincorporated areas of Alameda County which would be available for firearm retail sales.'"

    Do you have any specific information indicating that "available" included any restrictions beyond those in the statute on gun store locations?

  • mad_kalak||

    A further question you have to ask, based on the 7th's ruling throwing out Chicago's ban on gun ranges and gun stores (using intermediate scrutiny), is if there is even a rational basis for the 500 foot rule? What purpose does it even serve?

    Alameda cannot produce a rational reason for it (safety, property values, etc.) which they can back up with any evidence.

  • Careless||

    why would the county be required to alter its zoning to remedy that?

    Because the zoning laws are a transparent excuse to ban the exercise of a constitutional right, of course

  • VinniUSMC||

    Does this 500 foot zoning law apply only to the opening of a gun store, or does it apply to any commercial venture? IOW, if Texeira was trying to start a candle store, would he still have been denied?

  • Michael P||

    Separate permitting rules apparently apply to "superstores", but the 500 foot limit is only for gun stores.

  • Careless||

    this isn't exactly the first time we've had one of these cases, and you've been around more than long enough to know that. Chicago gun ranges ring a bell?

  • FlameCCT||

    IIRC the majority of existing "gun" stores do not meet the County standards either such that it is impossible to find a suitable location that meets all the mandated requirements of such a facility.

  • ||

    The county owes him because they literally made the rule so that ZERO gun stores were allowed. That is a CLEARLY constitutional violations.

    But since you CLEARLY don't understand the case, I'm not surprised you got it so wrong.

  • Michael P||

    Wrong. According to the three-judge panel's ruling, Teixeira was told that the 500 foot measure was from door to door, only to have the county change its mind later, and measure from exterior wall of the proposed gun store to the closest residential property line (not a building).

    The West County Board of Zoning Adjustment (which recommended the zoning variance) noted that the only property measured within 500 feet that way was across Interstate 880, and could not legally be reached by straight-line travel. The County overruled that.

  • VinniUSMC||

    Sounds like the truth is somewhere between SL and Kopel's explanations. If the rule only applies to gun stores, and nothing else, and was changed arbitrarily because it was a gun store, it seems pretty clear that it was discrimination meant solely to prevent a new gun store from being opened. I suppose SL might think that it's ok, so long as he could build a store on the other side of the county or something?

  • Michael P||

    The 500 foot role only applies to gun stores, and the zoning variance was revoked by the county because neighbors got all "NIMB...neighborhood". Teixeira funded a study before the lawsuit that found no place in the county satisfied the 500 foot rule; SL alleged that included other constraints, but the only other descriptions I have found of the study are very brief and do not mention any other constraints.

    The three-judge panel that sided with Teixeira on the 2A issue apparently wanted the lower court to rule on the question of fact whether there are any locations in the county where a gun store can open.

  • Harvey Mosley||

    It doesn't matter if the plaintiffs were singled out. New gun stores were singled out. Other retail stores generally don't face the same restrictions. And attempting to frame this as a zoning issue ignores the animosity to Second Amendment rights that is prevalent in California governments. Without that animosity then it might be possible to say that it is a zoning issue. The Ninth Circuit has ruled in other areas of law that animosity renders otherwise legal government actions unconstitutional.

  • Martinned||

    First, the other Circuit Circuits (including the Ninth Circuit in previous cases) have held that when a government contends that an activity is outside the scope of Second Amendment rights, the government bears the burden of proof.

    Huh? What does it even mean to have the burden of proof on a question of law? It's the law. The parties are welcome to make representations, but it's the thing the court is there to figure out.

  • Careless||

    You're not this dumb. Rational basis.

  • Martinned||

    Rational basis what? As part of a rational basis/strict scrutiny/whatever review, the government pleads facts to support its proposed reason why the law in question has to survive scrutiny. And it carries the burden of proof for those facts. It doesn't carry the burden of proof for the scope of the 2nd amendment, that's a question of law.

  • jph12||

    I'm truly curious how you think questions of law are decided.

  • Martinned||

    By the court, in whatever manner the law - other laws - requires. The law is not something you can prove, you can only make arguments about it and hope the court agrees.

    Here, have a listen

    Assigning a burden of proof to on party or the other, and then checking whether that burden of proof is met, is what you do with factual claims, not with claims about the law.

  • jph12||

    Then why are you confused by decisions, which are pretty close to laws and probably functionally equivalent for this purpose, saying the government has the burden of proving the Second Amendment doesn't apply?

  • Rigelsen||

    Are you misreading? That's simply saying that the government cannot merely content/assert that an activity is outside the scope, but must prove it. As in, it must support that assertion based on whatever test applies, rational basis, intermediate, or strict.

    The burden of proof is relative to the constitional provision, not the "law" imposed by that level of government.

  • Martinned||

    I'm not sure that that is what it says, but in any event it isn't what prof. Kopel is talking about in the rest of his post. He's talking about the 2nd amendment equivalent of what obscenity and defamation are for the 1st amendment, i.e. the scope of the right. Only if a given restriction on the right is not outside its scope in general do you get to questions of rational basis/strict scrutiny review.

  • ||

    It's EXACTLY what he is talking about

  • DRM||

    Okay, I hope you're lying about the court's opinion

    First off, the laws of colonies/states prior to the incorporation of the 2nd Amendment cannot demonstrate what an incorporated 2nd Amendment allows states to do. Any more than that the colony and state of Massachusetts had an established church could prove that states can establish churches today in the face of an incorporated 1st Amendment.

    Second, cases of regulation directly involving national security matters (arming the military and forbidding the export of arms to citizens of rival sovereigns) cannot be blindly extended to imply a general power in cases not involving national security.

  • Martinned||

    Isn't originalism great?

  • Rigelsen||

    Orignalism? How is that implicated here?

  • ||

    It is, but since this isn't originalism, its clearly wrong.

  • Sarcastr0||

    Flip that, reverse it - since this is clearly wrong, it can't be originalism!

  • Rigelsen||

    Yes, the argument might sound absurd, but this is the Ninth Circuit. Pretzel logic is the order of the day in these parts.

  • ||

    It's amazing how hard they work to fail at doing their job. It's an art really.

  • Sebastian Cremmington||

    Remember from Heller that "state" in the 2A refers to America and not the several states...it took a guy with a 202 IQ to come up with that.

  • ||

    I think you are referring to the Obamacare decision, where "Federal means state because that's gets the result we want"

  • Sebastian Cremmington||

    Scalia did that in Heller. Why do you think it was necessary for a guy with a 202 IQ to write law review articles about the 2A if the amendment is so self explanatory??

  • Rev. Arthur L. Kirkland||

    So long as there are counties with no location at which a citizen can register to vote, I find it difficult to become excited about a county with no location at which a citizen can purchase (legally) a gun.

    Of course, I'm not a gun nut.

  • Eidde||

    If the government were massively disenfranchising people, I don't think the most logical response would be "I don't care if the government is also taking away gun rights."

  • Rev. Arthur L. Kirkland||

    When the government engages in voter suppression, the Republican reflex is 'give that consultant a bonus.'

  • Eidde||

    So why does that logically entail not caring about gun rights?

  • Rev. Arthur L. Kirkland||

    I care about gun rights.

    I believe the Constitution (although not necessarily, or even likely, the Second Amendment) entitles an American to possess a reasonable firearm for self-defense in the home.

    I hope the predictable backlash against gun nuttery does not interfere with that right.

    Among the gun kooks who flock to the Volokh Conspiracy, that makes me a gun-grabbing commie.

  • Eidde||

    I'm just not sure about the connection you drew - "So long as there are counties with no location at which a citizen can register to vote, I find it difficult to become excited about a county with no location at which a citizen can purchase (legally) a gun."

    Suppose Republicans were trying to disenfranchise people who might vote against them - why would that harm the case for gun rights, or in any case make you less excited about them?

  • Michael P||

    Gee, if only we could infer something from the fact that the Second Amendment says "keep and bear arms", without any mention that this right be restricted to a person's home. Or from the fact that using firearms to hunt was incredibly common when the Second Amendment was adopted.

  • Rev. Arthur L. Kirkland||

    Your legal reasoning is intriguing, Michael P.

    Do you contend that an American is entitled to carry a loaded firearm into a courtroom (for a divorce or custody proceeding, for example)? Into a barroom, perhaps while intoxicated? Into an FBI office, perhaps while proposing a chat about sovereign citizens' rights and Waco?

    Do you contend that an American is entitled to install an anti-aircraft gun atop his residential roof? To possess a small thermonuclear weapon for self-defense? To affix a large flamethrower atop a Dodge Neon to address any traffic-related incidents that might develop along a highway?

    Do you contend that an American is entitled to hunt (for food or sport) on public lands? Could a state prohibit hunting on public lands? On all public lands, or just some public lands? On private property without the property owner's written permission?

    You could try to cite the Constitutional provisions that mention your answers.

    Thank you.

  • Michael P||

    Your legal reasoning is tripe, Rev. ALK.

    I will leave you to explore how your ridiculous examples would carry over to the First Amendment's protections for speech and press. Or do you think that the Constitution only entitles an American to say or write things that the government considers reasonable, and only within their own home? (It would not shock me if you believe that, given your overall persona in the VC's comment area.)

  • Rev. Arthur L. Kirkland||

    I gather you're an absolutist with respect to guns (where, which; automatic weapons, missiles, small thermonuclear devices) but not with respect to speech (pornography, child pornography, defamatory statements. maybe even blasphemy).

    That seems roughly in line with the positions of most gun nuts and many right-wingers.

  • Michael P||

    You assume wrong on both counts, which is no surprise at all.

  • Rev. Arthur L. Kirkland||

    You claim to be an absolutist with respect to speech but not with respect to guns?

    Or are you just having a hard time keeping up?

  • mad_kalak||

    The word "bear" in the very words of the amendment, mean that if you can't carry it, it's not protected. Which would be all missiles, except MANPADS I suppose, but it would exclude the anti-aircraft guns in your hypothetical upthread. But in the Founding era the wealthy had cannons, the WMDs of the day, which were used with militia service or to arm privateers, and nobody cared.

    2A "absolutists" as you say would prefer laws were like pre-Gun Control Act of 1968, and a few on the fringes would go as far as pre-Gun Control Act of 1934, and allow automatic weapons.

  • ||

    No, the reflex to end vote suppression. It's other reflex is to ensure the integrity of voting by requiring ID. But the Dems don't actually care about protecting the integrity, because they think their constitutients are too dumb to figure out how to get an ID. Where as Republicans believe the are more than capable enough.

  • Rev. Arthur L. Kirkland||

    That is a weak attempt to cloak or defend bigotry, Patrick. Your mom wasn't much of a teacher.

  • WJack||

    Only the Second Amendment (cornerstone of the Bill of Rights) provides a means to guarantee the other nine . . . seems to naturally follow that progressives do not tend to favor the "right to keep and bear."

  • Rev. Arthur L. Kirkland||

    Is that a direct quotation from a right-wing homeschooling manual?

  • Eidde||

    Some progressives are against the right to keep and bear arms even in the face of a Republican plot to disenfranchise them!

  • ||

    No, its a logical argument. Try to keep up please.

  • Michael P||

    RevAK is engaging in childish snark. In this instance, the snark is because the 2A says "the right of the people to keep and bear arms", but WJack omitted "of the people" without using an ellipsis. He can't rebut the logic, so he obliquely complains about an irrelevant elision.

  • Rev. Arthur L. Kirkland||

    I was referring mainly to the silly nature of the first sentence, a point often advanced by gun nuts and other disaffected wingnuts.

  • Michael P||

    I gave you too much credit, then.

  • Rev. Arthur L. Kirkland||

    I do not seek favor from authoritarian, stale-thinking wingnuts.

  • regexp||

    Only the Second Amendment (cornerstone of the Bill of Rights)

    Only if you ignore all of early American history.

  • WJack||

    Google: Constitutionfacts.com and learn about the Constitution:

    "James Madison proposed the U.S. Bill of Rights. It largely responded to the Constitution's influential opponents, including prominent Founding Fathers, who argued that the Constitution should not be ratified because it failed to protect the basic principles of human liberty. The U.S. Bill of Rights was influenced by George Mason's 1776 Virginia Declaration of Rights, the 1689 English Bill of Rights, works of the Age of Enlightenment pertaining to natural rights, and earlier English political documents such as the Magna Carta (1215)."

  • ||

    That statement shows you have actually ignored all of early American history. Please do some research.

  • ranrod||

    The federal government has no constitutional authority to make ANY laws dictating who may and who may not carry arms; or under what circumstances people may and may not carry arms across State borders! Arms control of the people is not an enumerated power!

    video on arms, here it is: https://vimeo.com/60944105

    State concealed carry laws which require a "permit" is an idea crafted in the pits of h ell. The real purpose is to register gun owners! People think it is so cool to have a permit for concealed carry - they don't understand that it is like the free sample of heroin.

  • Rev. Arthur L. Kirkland||

    State concealed carry laws which require a "permit" is an idea crafted in the pits of hell.

    That was evolution, goober. Why can't wingnuts keep their superstitious drivel straight?

  • ||

    Why can't you do anything but offer insults?

  • MatthewSlyfield||

    Because he doen't have any rational arguments to offer and never has.

  • Rev. Arthur L. Kirkland||

    Wingnuts tend to dislike my comments. Liberals, moderates, libertarians, and RINOs do not share the extremists' views.

    I am content.

    Carry on, clingers.

  • MatthewSlyfield||

    You are mistaken. No one likes your comment other than yourself.

  • Rev. Arthur L. Kirkland||

    When you are speaking for everyone, Mr. Slyfield, are you wearing your wingnut hat or your faux libertarian drag?

  • mad_kalak||

    ranrod, they already know who we are, just not what guns we have. Permit systems were generally put in place to keep blacks from carrying concealed, but to allow whites to carry concealed. This is why after desegregation in other avenues in life, the South was the first to start to expand "shall issue" permits. Vermont, due to a very specific state constitutional protection, and an early 20th Century court case, being the exception.

  • Bob from Ohio||

    "1. Some colonies sometimes banned gun sales to Indians."

    Obvious animus. Therefore cannot be the basis for government action.

    [Am I doing this right Tony K.?]

  • Eidde||

    In those days that would have been like an export-control regulation, not aimed at keeping arms from the people of America, because only in modern days do we accept the indigenous peoples as part of the American people (at least on paper).

  • Sebastian Cremmington||

    Lincoln obviously believed a federally funded railroad was more important than the rights of Native Americans.

  • Naaman Brown||

    Where do all the extant examples of Indian Trade Muskets come from? (Firearms made to be traded with Indians, usually for fur pelts or other goods.)

  • mad_kalak||

    +1

  • WJack||

    All of the other nine amendments are at the complete mercy of whoever has sufficient power. Put another way the Second Amendment, unlike the others, is not totally dependent on a merciful government . . . only those whose minds have been damaged by progressive educators are delusional enough to believe the government is, and will always be, merciful and that dependence on the government is a good thing.

  • Stephen Lathrop||

    Everything is at the mercy of whoever has sufficient power. That's a truism.

    Actually, it's also the principle that underlies the American People's sovereignty—and every other instance of sovereignty. I mention that because sovereigns, good and bad, have been around a long time. The American people have been a famously good and effective sovereign—emulated world-wide, in fact. Given how long that has gone on, anyone paying attention ought to know better than to suppose the American People, right now, or in the foreseeable future, are about to run off the rails and wreck everything. You can relax.

  • Sebastian Cremmington||

    The 2A is a federalism provision so obviously the 2A allows a locality to ban gun stores as long as it doesn't violate state law or the minimum standards for state militias set by Congress pursuant the Militia Clause in the Constitution.

    So next we move to Heller/McDonald analysis. So the outcome of Heller is correct but obviously the reasoning is convoluted bunk. So, how do we go forward with case law that is deeply flawed? Let's simply state the right Heller elucidates--we have a right to self defense with a gun in our homes.

    Does not having a gun store nearby prevent one from keeping a gun in the home for self defense? Obviously gun stores can be prohibited from being near schools and maybe bars and gun stores should be kept at a distance. That said, I do believe that an outright ban on gun stores in a county violates our right to keep a gun in our home for self defense. If someone feels threatened they should not be thwarted from buying a gun by capricious local codes that force them to travel long distances to purchase a gun.

  • ||

    The Fourteeth Amendment directs that such rights are now enforced on the states. So it does not allow localities to ban gun stores.

    Gun stores also cannot be prohibited anywhere, because there is no rational reason to do so. Having no gun stores easily accessible has a chilling effect on the right to keep and bear arms, so hence any regulation which reduces or eliminates gun stores is prohibited.

  • Sebastian Cremmington||

    Guns have been regulated by states since the time of the Framers! Heck, Louisiana, one of the most pro-2A states had a prohibition on concealed weapons in their constitution up until a few years ago!?! I definitely think a county wide prohibition is unconstitutional but other regulations on gun shops can withstand scrutiny.

  • loveconstitution1789||

    Many of the gun regulation was based on racist policies to keep freed blacks and black slaves from having guns.

    Some cities had bans on concealed guns and those should have been fought. Of course, taking cases to court back then was not what it is today.

    It still does not change the fact that government cannot infringe on a right to keep and bear arms. Any arm and in any public place and private place that okays it.

  • Sebastian Cremmington||

    Then why was a movement necessary to make concealed weapons legal even in pro-2A states like Texas? I have known law abiding people that have been forced to move to NYC and SF and DC long before Heller that kept guns in their apartments because they believed in the right to keep a gun at home for self defense (the right to privacy allowed them to do this of course). Never in a million years would those same people have carried a concealed gun in Texas prior to it being made legal in 1995!?!

  • Brett Bellmore||

    Because concealed carry was originally thought to be a practice of criminals, and the right is to carry, not to carry it concealed.

    I think there's no question that the 2nd amendment doesn't confer/protect a right to hide a gun in your pocket, just to carry one with you openly. But the trend towards treating open carry as an affront to the public peace, combined with the right to carry, implies that, if you don't let people carry openly, you MUST let them carry concealed. Because you must let them carry in some manner.

  • mad_kalak||

    Not 100% true, many of the regulations on concealed carry were to prevent southern whites from dueling and various problems related to the honor culture of the South. Eventually the dueling went away due to a religious revival, but the gun laws stayed. My source is Clayton Cramer's "Concealed Weapons Laws of the Early Republic"

  • TWW||

    When I was in L.S., in Lubbock, Texas, Lubbock County was dry. It was illegal to own or operate a package store in Lubbock not withstanding the repeal of the 21st Amendment. To buy liquor, one had to (and we did) drive to the county line where package stores proliferated. We brought our purchases and headed back into Lubbock County without incident.

    Now, change Liquor to guns.

  • Brett Bellmore||

    I suggest you go read the 21st amendment, (Hint: It's the one that ended Prohibition.) and contrast it with the 2nd.

  • TWW||

    You make no sense.

  • TWW||

    My bad. On re-reading I should have written ,"the 21st Amendment"; not "repeal of..." Thanks. My point remains.

  • Brett Bellmore||

    You can't change liquor to guns, because there is nowhere in the Constitution anything resembling a right to drink, and never has been. The 18th amendment banned the manufacture, transport and sale of alcohol, the 21st repealed that, but made transport of alcohol into a state contrary to its laws unconstitutional. (That, and slavery, are the only private acts that can violate the Constitution.)

    States were free to impose bans on alcohol before the 18th amendment, and after the 21st. The 19th amendment was just so the federal government could help, and no state could opt out.

  • loveconstitution1789||

    Furthermore, even prohibitionists knew they needed a constitutional amendment to ban liquor.

    Anti-gun nuts need a constitutional Amendment to repeal the 2ndm Amendment to ban guns [period]

  • Brett Bellmore||

    Prohibition was before they fully realized the potential of suborning the Supreme court. These days just putting people on the Court who will rule the way you like is seen as a much more direct route to Constitutional "change".

    And, besides, they're not actually delusional enough to know that they'd ever manage to repeal the 2nd amendment. Repealing it would be a matter of tidying up decades after their victory, not a step to victory.

  • WJack||

    Sebastain,

    Google: Humphrey right to keep and bear

    Back in the day (before clueless progressive educators populated academia) Sen. Humphrey was considered a progressive,

    "For three decades after World War II, he was the embodiment of a liberal Democrat. In 1960, Humphrey wrote: "Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms. This is not to say that firearms should not be very carefully used and that definite safety rules of precaution should not be taught and enforced. But the right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible."

    Actually Heller did not only hold "keep," but as Justice Altio pointed out in MacDonald the holding was "keep and bear." See Justice Ginsberg's definition of "bear" in Heller.

    Progressive judges are, of course, attempting to confine the Second Amendment to the home.

  • Sebastian Cremmington||

    The 2A has nothing to do with self defense other than Scalia with the help of a 202 IQ used to keep strict constructionism alive. The right to self defense and the right to protect our homes are part of the right to privacy which conservatives don't believe in and liberals are too short sighted to expand to include gun rights.

  • Brett Bellmore||

    They're not short sighted. They've just got a lot of aspirations that an armed populace would get in the way of by rebelling.

  • Rev. Arthur L. Kirkland||

    Wingnuts yap a lot about rebelling, militias, and "Second Amendment solutions," but I have watched limply accept a half-century of American progress that defies their stale wishes and efforts.

    The record indicates that right-wingers are mostly bitter muttering, empty threats, and yahoo fantasies.

  • loveconstitution1789||

    Keep up the unconstitutional tyranny and you will see how many Americans decide enough is enough.

  • Rev. Arthur L. Kirkland||

    It's called "going the full LaVoy."

    Please keep muttering bitterly about tyranny and especially about how guys like you just can't stand all of this progress, tolerance, science, education, freedom, and reason, 1789. When conservatives are complaining inconsequentially and pining for their illusory good old days, the world is generally as it should be.

  • Sebastian Cremmington||

    The liberal Justices failed to expand the right to privacy in Heller and instead put forth an absurd strict constructionist opinion interpretating he 2A...are you a strict constructionist??

  • Brett Bellmore||

    Actually, a strict construction of the 2nd amendment would have agreed with the Miller court, that the 2nd amendment guaranteed the right to own militarily useful weapons. All the Heller decision did was replace the real 2nd amendment right to "swords and every terrible implement of the soldier", with a right to own such weapons as didn't frighten the government.

    Which was better than what the minority in that case wanted to do, but still not an honest decision.

  • Sebastian Cremmington||

    No, read Stevens' Heller dissent for the perfect strict constructionist interpretation of the 2A. The 2A is a federalism provision much like the Establishment Clause directed at preventing future events similar to Lexington and Concord. So the feds can't draft laws that effectively disarm the state militias.

  • Brett Bellmore||

    I have read Stevens' dissent. It's a joke. Only somebody who started out determined that the right be violated, and let that over-ride their capacity for reason, could take it seriously.

    All it demonstrates is that even the worst living constitutionalists feel the need to pretend to be originalists when the public is paying attention. Which is worth understanding, of course.

    Yes, it's perfectly true that the 2nd amendment was aimed at the federal government, and had no application to the states, until the 14th amendment was ratified.

    The problem is that it clearly did establish a federal individual right in the first instance, and in the Heller case, there wasn't any state angle, as the District of Columbia is purely a creature of the federal government. So it really doesn't matter if you want to call it a federalism provision, at least as far as the Heller case is concerned. D.C. is just Congress's sock puppet, no independent authority at all; What Congress can't do, the D.C. government can't do. And Congress can't infringe the right to keep and bear arms.

    So neither can D.C.

  • Sebastian Cremmington||

    Wrong, Thomas believes the Establishment Clause should not be incorporated because it is a federalism provision. The 2A is just like the Establishment Clause in that it is a federalism provision. That said we clearly have a right keep a gun in the home for self defense that arises from the right to privacy/liberty interests and so Stevens' McDonald dissent lays out a path forward with respect to Constitutional analysis of gun regulations.

  • Brett Bellmore||

    You're letting the purpose you attribute to a clause override the actual text of the clause. It says that the right of the people to keep and bear arms shall not be infringed. Sure, you can conclude that they didn't want it infringed for federalism reasons, but it remains that it shall not be infringed.

    And Stevens' aim in both Heller and McDonald was simply to make sure that nobody would ever be able to claim the right in question. He starts out with that aim, and crafts his argument accordingly. So he embraces a doctrine of selective incorporation which is a product of the Court's earlier determination to render the 14th amendment toothless, without acknowledging the origin of that doctrine.

    Ok, so Stevens isn't intent on rendering it totally toothless, he simply doesn't want to incorporate the rights he doesn't like. That's all that is going on here, nothing sophisticated. He doesn't even directly address the historical evidence that incorporating the 2nd amendment was expressly intended to incorporate the 2nd amendment, so as to enable the Freedmen to defend themselves. He just calls it "bad history" without even identifying what he's criticizing.

    This isn't good judging, it's just goal oriented sophistry. It provides no guide to which rights are incorporated and which aren't, just an excuse for not incorporating ones a judge doesn't like.

  • Sebastian Cremmington||

    Thomas provides a guide for incorporation—federalism provisions defy incorporation. So the Establishment Clause and 2A defy incorporation because they are federalism provisions.

  • Nicodude40||

    I think the bigger question won't be whether the county had the right to regulate businesses. But rather the fact that quite a bit of California gun law requires the presence of a licensed gun dealer. If a gun dealer is required for legal ammunition sales, or for 3rd party gun transfers, then a ban on gun dealerships is a de-facto ban on ammunition and private gun sales within the county. Even if the ban is just on NEW stores, over a long enough period of time it would progress towards a complete ban as stores close and cannot be replaced.

  • loveconstitution1789||

    Nice article and good luck in the SCOTUS.

    There is no authority in the US Constitution to ban anything. Even the prohibitionists knew this, so they created the 18th Amendment to ban liquor. The Commerce Clause is about regulating commerce not banning it.

    Some gun sales to Indian Nations might have been banned because some Indian groups were not considered Americans at that time. Furthermore, some of those Indian tribes were actively fighting the United States. This is nothing like American business attempting to sell guns to Americans inside the USA. Its more in tune with the USA banning sales of US weapons to foreign nations.

    The third argument is that the 2nd Amendment specifically prohibits any regulation by government of keeping and bearing arms. Banning weapons, banning gun stores, banning manufacture of weapons, etc is plainly an unconstitutional scheme by government to undermine the protections set forth in that Amendment.

    You are facing an uphill battle because banning certain commerce is a very powerful government tool. Precedent limiting government would hinder the War on Drugs and the government trying to ban other commerce. The SCOTUS is known for maximizing unconstitutional government power not substantially limiting it.

  • Brett Bellmore||

    Then when you get to McDonald, the question is whether or not the right was incorporated by the 14th amendment. Now, the 1st amendment starts with the five most beautiful words in the English language, "Congress shall make no law", while the 2nd amendment doesn't make any reference to Congress, simply states that the right shall not be infringed. So incorporating the 1st and not the 2nd would be a tough thing to justify, even if Congressional debate hadn't made it clear that both were supposed to be incorporated.

    But it did make that clear. So Stevens' opinion was a joke.

  • Sebastian Cremmington||

    Stevens' Heller opinion along with Scalia's opinion are jokes, but Stevens' McDonald dissent walks back some of his Heller opinion and is actually the best of all of the opinions of the two cases. Breyer's opinion is one of the dumbest opinions in history and should be put in a paper shredder.

  • Milhouse||

    There is no authority in the US Constitution to ban anything.

    Even if that were true, it would only be true of the federal government. States and their subdivisions have a general police power, so by default they can ban anything they like, unless there's some specific constitutional provision or federal law prohibiting them from doing so.

  • Brett Bellmore||

    Quite true, such as the several such provisions in the Bill of Rights, as incorporated by the 14th amendment.

  • Milhouse||

    On the corresponding first-amendment question, can governments ban book stores, the answer is very clearly "no". The federal courts have been emphatic that cities may not place any greater restriction on the sale of first-amendment-protected material than they do on the sale of anything else. For instance, since NYC allows veterans to sell things in the street without a license, the courts have forced the city to extend the same privilege to anyone selling printed matter or art of any description.

  • Sebastian Cremmington||

    But it can prohibit porn stores near schools. I think an outright ban is capricious but I definitely think regulations with respect to distance from schools would be upheld by the Roberts court.

  • WJack||

    Sebastian' "So the feds can't draft laws that effectively disarm the state militias."

    George Mason — "I ask, sir, what is the militia? It is the whole people, except for a few public officials." (Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788."

  • Sebastian Cremmington||

    Washington called forth the militia in order to enforce the Whiskey Tax...did he blow a ram's horn and men just come out of the forest to heed his call? Was it like something out of Lord of the Rings? No, Washington called forth several state militias to suppress the tax evaders. The militias were in existence prior to the Constitution and in fact they were suboptimal under the AoC so the Constitution gives power to the feds to regulate them. But the 2A prohibits the feds from disarming them in a Lexington and Concord situation.

    I do not have a 202 IQ like Volokh but Volokh made a mistake in one of his famous law review articles in which he queries if the state militias could be under the control of the feds then they cannot be a tool to prevent tyranny by the feds. Except the Constitution clearly gives the states the power to appoint officers and the responsibility of training them which means the state militias are loyal to the state and not the feds. In fact fast forward to 1861 and RE Lee resigned his FED commission and remained loyal to his state so the notion officers appointed by the state wouldn't remain loyal is beyond absurd.

  • WJack||

    Richard Henry Lee
    "A militia, when properly formed, are in fact the people themselves... and include all men capable of bearing arms."
    ― Richard Henry Lee, The Letters of Richard Henry Lee 1762-1778 V1

  • Sebastian Cremmington||

    Exactly, Virginia had a militia prior to the Constitution because they were a sovereign entity after independence from Great Britain. The militia is not some amorphous concept in the heads of the Framers but an actual military unit that was called forth when necessary. Washington called forth several state militias during the Whiskey Rebellion.

  • Seamus||

    "all men capable of bearing arms" doesn't sound much like "an actual military unit."

  • Sebastian Cremmington||

    So what did Washington call forth to suppress the Whiskey Rebellion?

  • WJack||

    Probably a subset of the militia, i.e., all men capable of bearing arms.

  • Brett Bellmore||

    The common failure here is to not understand exactly how the 2nd amendment was supposed to protect the militia system. It does so in several ways.

    Of course, directly, by preventing the federal government from disarming the militia. But it did so indirectly, too.

    There was a fear was that the militia system would be discontinued, perhaps deliberately, and then when needed in an emergency you couldn't reconstitute it fast enough.

    The 2nd amendment protects the militia system against this eventuality by making sure that the general populace would remain armed even if the militia system were discontinued, assuring that enough people would be armed anyway, that you could throw together a militia in an emergency even if the people in charge of the militia system didn't want this to be possible.

    As I always say, you can't understand the Bill of Rights unless you understand that it was intended to obstruct a government that means to do the wrong thing, not aid a government that means to do the right thing. In the case of the 2nd amendment, the wrong thing is discontinuing the militia system, and the way it obstructs this is by guaranteeing an armed populace from which a militia can be raised in an emergency.

  • Sebastian Cremmington||

    Wrong, anarchy was just as much as enemy of society as tyranny so the notion the Framers were interested in a fallback of anarchy in order to prevent tyranny is absurd. So the context is the AoC failed to provide enough order so a more powerful central government was necessary. If the states disarmed their populace so a tyrannical central government could take over then the states failed to perform a very important duty.

    Scalia and Volokh get to an individual right by downplaying how important federalism provisions were to the Framers. The notion the states would surrender important checks on tyranny was inconceivable to the Framers. So sure enough in 1861 we had a Constitutional crisis because some states did not like the way the political process was going so they took up arms against the federal government they characterized as tyrannical...but they did so by raising an army not through terrorism and anarchy.

  • Stephen Lathrop||

    This thread is loaded with people who swallowed Kopel's headline bait, and premise comments on the notion that the case is about government bans on gun stores. That from a county that has double-digit gun dealers, doesn't seem to be trying to get rid of them, and certainly did not tell Teixeira that he couldn't own or operate a gun dealership if he could find a zoning-conforming place to put it.

    Nor is Kopel's bait at all plausible on the point that zoning is here used as a pretext to ban gun dealers. That charge is based on weasel worded implications, unsupported by adequate facts. Until Teixeira can show that there is no commercial property in the county which can pass the zoning law—whether Teixeira can afford it or not, whether it is currently available or not, and whether it is the property which Teixeira prefers or not—the charge is unsupported. And that Teixeira has not shown.

    If you have heard about Teixeira's "study," and want to hang your hat on that, you better go and read the opinions. It doesn't say what Kopel told you it says.

    Which brings up a more general point. Never forget when you read Kopel—no matter what kind of expert he presents himself as—you are not hearing from a legal expert, an historian, nor any other kind of expert except a gun-industry public relations guy. If you trust PR people, good luck to you.

  • WJack||

    Did you read Kopel's post?

    Seems to me all would be better served if some here made fewer personal attacks.

  • Stephen Lathrop||

    Well, I went back and checked Kopel's Wikipedia entry. I concede he is at least a lawyer, and that some prestigious bodies, including the Supreme Court, have treated him as a legal expert.

    You still need to read Wikipedia yourself. There you will find that he has taken NRA funding for years, totaling more than $1.3 million. He is a PR person for the NRA.

    Wikipedia:

    The New York Times changed Kopel's author ID the online opinion piece, "Bloomberg's Gun Control That Goes Too Far for the Average Citizen," on April 18, 2014, to reveal that that Independence Institute, where Kopel is research director, has "received grant money from the National Rifle Association's Civil Rights Defense Fund."[20] On April 24, 2014, The Progressive reported that Kopel and his Independence Institute "have received over $1.42 million including about $175,000 a year over eight years from the NRA."[21]

  • jph12||

    So, once again, Stephen Lathrop is caught making broad pronouncements even though he is profoundly ignorant of the underlying facts. Since you are so fond of suggestions, I suggest you spend more time reading and less time typing.

  • Brett Bellmore||

    By the same standard, I suppose anybody who's taken anti-gun funding is just a PR person for the Brady Bunch?

  • WJack||

    Paid dues for NRA membership for well over 50 years, remarks here indicate I should have contributed more.

  • LadyTheo||

    I am surprised that what seems to be an obviously bigoted rationale (no sales to Indians) is the fallback for the progressive justices. I understand that there was ongoing conflict between the natives and the colonials, but using that line of reasoning today hits a sour note. If the argument is the government may restrict sales of weapons to those in violent conflict with the state, then that seems not to be relevant here. If it is not that, but rather specific to Indians, then that seems discriminatory.

    But this is something that puzzles me about progressive arguments for gun control. Many GC laws were based in racial animus--but that seems immaterial for progressives when it comes to the 2A.

    I guess the 2A is the red-headed stepchild for progressives, while the "right" to murder an unborn human is the scion of the family.

  • LadyTheo||

    Stephen Lathrop, you are being disingenuous. Alameda Co has four gun stores. I live in Oakland. To get to any store is the county is at least a 30-minute drive--in non-rush hour traffic. Contending that I have ample opportunity to purchase a firearm and/or ammunition is not persuasive.

    What astonishes me is that the resistance to allowing the purchase (and carrying) of firearms is so obviously based in racial animus. The entire argument is bound up in assumptions that non-white people must be kept from owning guns.

    The similarity-in a mirror-image symmetry--is that I find my some of my progressive friends who are staunch pro-abortion advocates openly say what RBG said: it is necessary for non-white, non-educated birth control.

    Consistent holding to principle is the mark of a mature mind--if equality is the ditch you will die in, then why the murky racist undertones to gun and abortion arguments?

  • Sebastian Cremmington||

    That is why I support Planned Parenthood absent a pro-life alternative—conservatives would never get away with handing out free birth control in black neighborhoods!

    However states have had prohibitions against concealed weapons since the days of the Framers and they weren't based on racial animus. Now the two arguments against my statement is that Vermont has had legal concealed carry for decades and Guiliani utilized gun control measures to target black criminals according to liberals.

  • Brett Bellmore||

    Notice that you're equating concealed carry, which at the time of the founding was regarded as a practice of criminals because the law abiding carried their guns openly, and simply selling guns.

    If I were to construct an analogy, suppose a local government were to ban stationary stores. Would it make that OK from a first amendment perspective if you could show that founding era governments banned practicing somebody else's signature?

    There's just too large a disconnect between the originally banned conduct, and what's being banned here. Nobody is saying that conduct with a gun is utterly beyond the reach of the law, just that you can't throw up arbitrary obstacles to businesses that supply the things necessary to exercise a civil liberty.

  • Absaroka||

    "...concealed carry, which at the time of the founding was regarded as a practice of criminals because the law abiding carried their guns openly"

    Do you have a source for the 'was regarded as' part?

    I have this picture of George Washington slipping a pistol into his saddlebag when leaving Mt Vernon to go to Philadelphia, or some frontiersman with a knife on his belt covering it with a coat in winter because he was cold. My sense, I guess, is that as a general rule people of that era didn't care what you did with weapons that didn't result in a victim, any more than they cared how fast you rode your horse on a rural road or what safety equipment you had in your boat, etc, etc.

    My view may well be wrong, but I'd like to understand what's behind your view.

  • apedad||

    ". . . you just that you can't throw up arbitrary obstacles to businesses that supply the things necessary to exercise a civil liberty."

    And yet your fellow cons have no problem using God to throw up arbitrary obstacles.

  • ||

    Give an example. I assume you're referring to getting wedding cakes, as if there's some natural "right" to be served in a private business.

  • apedad||

    Actually I was thinking of Roy Moore and his ten commandments.

  • Sebastian Cremmington||

    The right to keep guns requires some form of open carry being legal because you must be allowed to transport guns. So prior to concealed carry being made legal in a state like Texas handguns were heavily regulated and were not allowed to be openly carried while long guns were the arms that were allowed to be openly carried. So your argument is that because concealed weapons were originally banned due to criminal activity that up through the 1990s handguns were still being heavily regulated in pro-2A states because of a misunderstanding of the original intent on concealed carry bans?

  • Naaman Brown||

    In my lifetime, Tennessee treated open carry as going armed to the terror of the community, and good guys transported their guns cased in the trunk of their vehicle to go to a gunsmith, target range, hunting field, for lawful purposes.

    Virginia treated concealed carry as showing criminal intent to gain advantage over unwary victims, and if you transported a gun in a vehicle it had to be open carried to show you were a good guy.

    My home in Tennessee is six miles from the Virginia border. The mountain ridges run northeast to southwest. Roads follow gaps in the mountains cut by streams. To get from point A to point B in the same state can require crossing state lines. Which made transporting a gun for lawful purposes while complying with different state transport laws based on opposite hypotheticals very very tricky. Gettting a Tennessee carry permit or a Virginia concealed carry permit was not an option before right-to-carry permit era.

    I could also bring up 1990 waking up and reading in the morning paper the federal Gun Free School Zone Act criminalized possession of firearms within 1000 feet of school grounds. My home is 450 feet from the local school grounds. There were loopholes (the kind antigunners like to discover with alarm and rush to plug). Under the GFSZA I can take a gun from my home to my vehicle (a) on my person with a state carry permit, or (b) in a locked case with the ammo in a separate container. Open carry would not be an option under the GFSZA.

  • Sebastian Cremmington||

    I support laws that enable more law abiding citizens to carry guns because as your example shows the only people discouraged from carrying guns under Byzantine gun laws will be law abiding citizens.

  • WJack||

    "[C]onservatives would never get away with handing out free birth control in black neighborhoods!" Yet progressives gloat over handing out "free" abortions in the same communities.

  • Naaman Brown||

    Watson v. Stone, 4 So. 2d 700 (Fla. 1941)
    cited by CORE in their amicus brief in Heller as an example of racial origins of gun control

    In Volusia Florida, one Mose Watson was caught 10 Feb 1941 with a pistol in the glove box of his vehicle without a license to carry or possess as required by statute. The case reached the Florida Supreme Court. Three judges ruled in favor of Watson, two judges dissented. There was a seperate concurrance in favor of Watson by supreme court justice Rivers H. Buford:

    I concur in the judgment discharging the Relator because I think that Section 5100 R. G. S., 7202, C. G. L., is unconstitutional because it offends against the Second Amendment to the Constitution of the United States and Sec. 20 of the Declaration of Rights of the Constitution of Florida.

    Proceedings in habeas corpus will lie for the discharge of one who is held in custody under a charge based on an unconstitutional statute. [cites deleted].

    The statute, supra, does not attempt to prescribe the manner in which arms may be borne but definitely infringes on the right of the citizen to bear arms as guaranteed to him under Sec. 20 of the Declaration of Rights of the Florida Constitution.

    I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps.

  • Naaman Brown||

    [buford continued]
    The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied. We have no statistics available, but it is a safe guess to assume that more than 80% of the white men living in the rural sections of Florida have violated this statute. It is also a safe guess to say that not more than 5% of the men in Florida who own pistols and repeating rifles have ever applied to the Board of County Commissioners for a permit to have the same in their possession and there has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention to the Constitution and non-enforceable if contested.

    The law did not mention race, but it was enforced with a wink and a nudge against nonresident migrant blacks, until someone made the mistake of charging a person with legal standing to challenge it in court. This is typical frankly of a lot of unconstitutional 19th century gun laws written to be selectively enforced only against "bad" people, never against "good" people.

  • Stephen Lathrop||

    Problem with "racial origins of . . . " type formulations is that you can apply them to practically anything that goes back even 50 years, let alone back to the days of slavery. You can even look to slavery for the racial origins of the militia clause, for instance.

  • Sebastian Cremmington||

    And you open up a can of worms with respect to the current immigration debate in which race has always been a factor in major immigration laws. So any argument that refers to the 1924 Progressive legislation supported by the labor movement as an example of good policy that lowered immigration levels is undermined by the fact the actors promoting the legislation were racists.

  • ||

    Of course governments can regulate gun stores the same way they regulate other stores (for example, they can ban gun stores in residential neighborhoods, much like book stores would similarly be banned). They cannot single out guns for persecution.

  • RPGuy16||

    I'd love for a county try this zoning approach with abortion providers and see how long the restrictions stands up in court.

  • Naaman Brown||

    The Supreme Court pointed out in a 19th century case that the power to tax is the power to destroy that which you cannot prohibit constututionally.
    I guess the power to zone can be used to destroy that which you cannot prohibit constitutionally, also.

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