Gun Control, Post-Heller

This is a discussion on Gun Control, Post-Heller within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; This was posted on the ArkansasCarry.com site, a very interesting read on how the other side sees gun control after Heller. They even seem to ...

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Thread: Gun Control, Post-Heller

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    Member Array samh's Avatar
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    Gun Control, Post-Heller

    This was posted on the ArkansasCarry.com site, a very interesting read on how the other side sees gun control after Heller. They even seem to say gun control won't work, but it still needs to be done.
    ---------------------------------------------------------------
    Posted arkansascarry.com 04/22/09

    Here is a 55 page study of how gun-control and confiscation can happen after the Heller decision. "People, the Supreme Court decision of last summer should be considered a cornerstone from which we can build, not the end result." This paper is chillling, because it is laying out the way to outlaw all firearms.

    http://lawreview.law.wfu.edu/documents/issue.43.837.pdf
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    I read this as a blueprint to use Heller to allay objections to a broad agenda of control legislation and regulation. While the author admits "The analysis is complicated by the constitutional protection of
    the individual right to bear arms..." the qualification of the confiscation argument is more more along practical lines than any real legal logic. Scary
    Still Clingin'

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    Distinguished Member Array Bob The Great's Avatar
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    Amazing. They actully touch on everything we, as gun-owners, have been saying, but manage to dismiss all the objections with "should" "maybe" "might" "probably" etc. The real lesson in this is that people like this have already decided beyond a shadow of a doubt that they know what's best for us, and no matter how obviously flawed their arguments, or how complete our rebuttals, they will fall back on a hypothetical perfect-world analogy and use that to "prove" their points.
    "A well-educated electorate, being necessary to the continuance of a free state, the right of the people to keep and read books shall not be infringed."
    Is this hard to understand? Then why does it get unintelligible to some people when 5 little words are changed?

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    Thumbs down

    This Article will illuminate those structural barriers by
    removing, theoretically, the constitutional impediment of Heller and
    the political impediments to the supply-side ideal. Assume,
    therefore, that Heller is reversed or explained away. Assume
    further that the political barriers to sweeping supply controls are
    overcome
    . Now imagine gun control in America.
    Yea, it's a Law Review, but I know what "assume" means.

    The conclusion that some horrible gun crime would not have
    happened if we had prevented the scoundrel from getting a firearm
    is straightforward and quite natural. This calculation is the
    foundation for views that advance supply-side gun regulation as a
    recipe for crime control.11 It conforms to simple tests of logic.
    Consider two scenarios. In the first, we are sitting in a room with a
    gun in the middle. In the second, our room is gun free and sealed—
    the supply-side ideal. The risk of gun violence is obviously higher in
    the first scenario. Indeed, absent creative cheating, it is zero in the
    second. Projecting this dynamic to society generally allows the
    claim that laws limiting the supply of guns in private hands will
    dramatically reduce gun crime
    .12
    Typical academician.......

    Tracking violent crime rates in jurisdictions with generous
    concealed carry laws, John Lott reaches the opposite conclusion.
    Lott posits that laws enabling trustworthy citizens to carry guns in
    public are a deterrent to crime.13 Lott has drawn criticism14 and
    support15 sufficient to leave doubters and believers nearly exactly where they started.

    So we ignore John Lott too?

    Wake Forest, eh? Never did like them.........

    I'm going to dig a wee bit, but I remember an Anti-Self-Defense Organization that paid a lot of dollars to get a Law Review piece done that was thoroughly discredited for various reasons. I'll find the article....

    Here it is, but not Wake Forest:

    Obama and the Attempt to Destroy the Second Amendment

    October 6, 2008 - by David T. Hardy


    As a presidential candidate, Barack Obama must demonstrate executive experience, but he remains strangely silent about his eight years (1994-2002) as a director of the Joyce Foundation, a billion dollar tax-exempt organization. He has one obvious reason: during his time as director, Joyce Foundation spent millions creating and supporting anti-gun organizations.

    There is another, less known, reason.

    During Obama’s tenure, the Joyce Foundation board planned and implemented a program targeting the Supreme Court. The work began five years into Obama’s directorship, when the Foundation had experience in turning its millions into anti-gun “grassroots” organizations, but none at converting cash into legal scholarship.

    The plan’s objective was bold: the judicial obliteration of the Second Amendment.

    Joyce’s directors found a vulnerable point. When judges cannot rely upon past decisions, they sometimes turn to law review articles. Law reviews are impartial, and famed for meticulous cite-checking. They are also produced on a shoestring. Authors of articles receive no compensation; editors are law students who work for a tiny stipend.

    In 1999, midway through Obama’s tenure, the Joyce board voted to grant the Chicago-Kent Law Review $84,000, a staggering sum by law review standards. The Review promptly published an issue in which all articles attacked the individual right view of the Second Amendment.

    In a breach of law review custom, Chicago-Kent let an “outsider” serve as editor; he was Carl Bogus, a faculty member of a different law school. Bogus had a unique distinction: he had been a director of Handgun Control Inc. (today’s Brady Campaign), and was on the advisory board of the Joyce-funded Violence Policy Center.

    Bogus solicited only articles hostile to the individual right view of the Second Amendment, offering authors $5,000 each. But word leaked out, and Prof. Randy Barnett of Boston University volunteered to write in defense of the individual right to arms. Bogus refused to allow him to write for the review, later explaining that “sometimes a more balanced debate is best served by an unbalanced symposium.” Prof. James Lindgren, a former Chicago-Kent faculty member, remembers that when Barnett sought an explanation he “was given conflicting reasons, but the opposition of the Joyce Foundation was one that surfaced at some time.” Joyce had bought a veto power over the review’s content.

    Joyce Foundation apparently believed it held this power over the entire university. Glenn Reynolds later recalled that when he and two other professors were scheduled to discuss the Second Amendment on campus, Joyce’s staffers “objected strenuously” to their being allowed to speak, protesting that Joyce Foundation was being cheated by an “‘agenda of balance’ that was inconsistent with the Symposium’s purpose.” Joyce next bought up an issue of Fordham Law Review.

    The plan worked smoothly. One court, in the course of ruling that there was no individual right to arms, cited the Chicago-Kent articles eight times. Then, in 2001, a federal Court of Appeals in Texas determined that the Second Amendment was an individual right.

    The Joyce Foundation board (which still included Obama) responded by expanding its attack on the Second Amendment. Its next move came when Ohio State University announced it was establishing the “Second Amendment Research Center” as a thinktank headed by anti-individual-right historian Saul Cornell. Joyce put up no less than $400,000 to bankroll its creation. The grant was awarded at the board’s December 2002 meeting, Obama’s last function as a Joyce director. In reporting the grant, the OSU magazine Making History made clear that the purpose was to influence a future Supreme Court case:

    “The effort is timely: a series of test cases - based on a new wave of scholarship, a recent decision by a federal Court of Appeals in Texas, and a revised Justice Department policy-are working their way through the courts. The litigants challenge the courts’ traditional reading of the Second Amendment as a protection of the states’ right to organize militia, asserting that the Amendment confers a much broader right for individuals to own guns. The United States Supreme Court is likely to resolve the debate within the next three to five years.”

    The Center proceeded to generate articles denying the individual right to arms. The OSU connection also gave Joyce an academic money laundry. When it decided to buy an issue of the Stanford Law and Policy Review, it had a cover. Joyce handed OSU $125,000 for that purpose; all the law review editors knew was that OSU’s Foundation granted them that breathtaking sum, and a helpful Prof. Cornell volunteered to organize the issue. (The review was later sufficiently embarassed to publish an open letter on the affair).

    The Joyce directorate’s plan almost succeeded. The individual rights view won out in the Heller Supreme Court appeal, but only by 5-4. The four dissenters were persuaded in part by Joyce-funded writings, down to relying on an article which misled them on critical historical documents.

    Having lost that fight, Obama now claims he always held the individual rights view of the Second Amendment, and that he “respects the constitutional rights of Americans to bear arms.” But as a Joyce director, Obama was involved in a wealthy foundation’s attempt to manipulate the Supreme Court, buy legal scholarship, and obliterate the individual right to arms.

    Voters who value the Constitution should ask whether someone who was party to that plan should be nominating future Supreme Court justices.
    It would not surprise me at all to find a connection between and betwixt the parties herein.......

    Of note though, is the conclusion of the Wake Forest Law Review:


    CONCLUSION
    Without a commitment to or capacity for eliminating the
    existing inventory of private guns, the supply-side ideal and
    regulations based on it cannot be taken seriously. It is best to
    acknowledge the blocking power of the remainder and adjust our
    gun control regulations and goals to that reality. Policymakers who
    continue to press legislation grounded on the supply-side ideal while
    disclaiming the goal of prohibition are deluded or pandering.
    I never did like lawyers, LOL

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    New Member Array Grym's Avatar
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    Wow... Excellent find, samh. This paper is truly unique if not for its sober, rational analysis of the problems with previous gun-control efforts then certainly for its complete disregard for the rights and well-being of law abiding citizens.

    What's interesting is that if you read it carefully, it's practically a step-by-step guide on how to thwart gun prohibition efforts:

    1. Do not become complacent. They're counting on pro-gun rulings like the Supreme Court's Heller decision to lull the opposition into a false sense of security. They're also hoping to, in the author's own words to do an "end run around the traditional lawmaking process" by using regulatory agencies rather than legislatures to do the dirty work. The title of this section? I kid you not: "Confronting Defiance: The Problem with Democracy"

    2. Resist or defy any gun registration effort. Confiscation is the next logical intended step.

    "[Gun owners] should view registration as the precursor to confiscation for several reasons. The progression from registration to confiscation actually has occurred both domestically and internationally. The evolution of supply controls in Washington, D.C., New York City, California, New Jersey, Massachusetts, England, Canada, and Australia illustrates that registration is an important precursor to any viable confiscation plan.
    The author presents an interesting legal theory that gun confiscations done by house-by-house searches would be unconstitutional under the 4th amendment and furthermore practically difficult but that searching only houses of registered gun owners who did not comply with confiscation orders would be legally permissible. According to the author's own data, at a minimum, defiance of mandatory gun registration would be somewhere within the range of 75 and 90 percent, anyway.

    3. Educate your children and loved ones on the importance and use of firearms. The underlying assumption behind the gun prohibition effort described in the article is that when those who defy gun confiscation laws pass on that the next generation will have different values and will turn in the gun willingly.

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    VIP Member Array sgtD's Avatar
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    Quote Originally Posted by Rock and Glock View Post
    I never did like lawyers, LOL
    Me either. However, I did like the last sentence.

    "Policymakers who continue to press legislation grounded on the supply-side ideal while
    disclaiming the goal of prohibition are deluded or pandering."
    When you've got 'em by the balls, their hearts & minds will follow. Semper Fi.

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    Senior Member Array Herknav's Avatar
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    NOTE: I didn't read the whole thing, but I skimmed through it.

    I think the author needs to demand a refund from Harvard for his law degree. The following quote shows he either doesn't understand or is deliberately misinterpreting Heller:
    With the individual right to arms now established in Heller, it is
    tempting to speculate that the defiance impulse should disappear.
    But this is too optimistic. Given the sharply split decision, it is easy
    to imagine the scope of the individual right shifting as one season’s
    dissenters become the next season’s majority.
    FYI: Heller determined the individual right issue 9-0. It was the constitutionality of DC's ban that was 5-4.

    Point #2--Apparently, Nick failed civics, as he keeps referring to our system of government as a democracy. (I pledge allegiance to the flag, and to the republic for which it stands...)

    Point #3--I like how he points out that we won't be easily "snookered" by regulation due to organizations like GOA and NRA. If he's making valid points and really thinks he's making the world safer, then why is he trying to "snooker" anyone? Oops--hoplophobic slip!

    Good intel on what the other side is doing. Thanks for posting this.
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    Distinguished Member Array Bob The Great's Avatar
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    Quote Originally Posted by Herknav
    Point #3--I like how he points out that we won't be easily "snookered" by regulation due to organizations like GOA and NRA. If he's making valid points and really thinks he's making the world safer, then why is he trying to "snooker" anyone? Oops--hoplophobic slip!

    Good intel on what the other side is doing. Thanks for posting this.
    He has to "snooker" us because like any good authoritarian, he believes he knows what's best for us all, regardless of what we think. We all must be protected from ourselves, and any so-called rights or objections that stand in the way are only obstacles to be creatively overcome. Hence the need to "snooker" and perform "end runs" around the legislative process.
    "A well-educated electorate, being necessary to the continuance of a free state, the right of the people to keep and read books shall not be infringed."
    Is this hard to understand? Then why does it get unintelligible to some people when 5 little words are changed?

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    wow, what a great article. This spells out, in chilling fashion, exactly what the left wants, and how they plan to achieve it.

    Quote Originally Posted by Herknav
    FYI: Heller determined the individual right issue 9-0. It was the constitutionality of DC's ban that was 5-4.
    Where did Stevens say it was an individual right? I'm pretty sure he said the exact opposite and was joined by three other justices.
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    Senior Member Array Herknav's Avatar
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    From the Stevens dissent (joined by Souter, Ginsburg, and Breyer):
    The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
    From the Breyer dissent(joined by Stevens, Souter, and Ginsburg):
    The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).
    Of course, they then go into various mental gymnastics to explain how they believe that the government can restrict this right in any manner so long as it doesn't affect the militia. This is a minor point, but one I thought a lawyer (especially one from Haaavud) would be able to pick up on.

    The 5-4 was on whether the DC was constitutional or not. I agree with you on the principle that based on this portion of the decision, that they don't seem to be reading the same 2nd Amendment I am.

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    How on earth does this cretin come to equate a sealed room full of people with no guns in it to the United States--as if we could somehow: (1) magically make all guns disappear--including those already in the hands of the bad guys; and (2) put a gun-tight bubble around the country to prevent any more getting in? What a moron. It's not even close to a rational analogy.

    Not to mention that the gun lying on the table isn't going to start any problems on its own. It would require some person to pick up the gun and start a problem before there would be any "gun violence" in the room. So great, yeah, rid the entire world of guns. Then whoever that person is will just resort to a knife, or sword, or club, or their own hand and feet--a person who is going to do violence will do it with whatever means they have necessary.

    The difference is that guns are the great equalizers--a stronger and faster man can almost always out fight a smaller, weaker person with a knife, sword, club, or his own bare hands; the gun gives the little guy (or gal) a fighting chance. And that, together with the notion that there is never, not ever, no chance going to be a "gun-free" city/state/country anyway (even if the law-abiding folks would give them up--which we won't--the bad guys sure aren't going to), is what the anti's cannot get through their thick skulls...

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    Member Array belltoller's Avatar
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    Quote Originally Posted by Herknav View Post

    The 5-4 was on whether the DC was constitutional or not. I agree with you on the principle that based on this portion of the decision, that they don't seem to be reading the same 2nd Amendment I am.
    If you read the rest of Steven's opinion, he ties 2A directly into the maintenance of a militia. I believe the "individual/collective" argument is about whether an individual can possess a firearm for a non-military purpose, and Stevens explicitly says "the Second Amendment was adopted to protect theright of the people of each of the several States to maintain a well-regulated militia. (dissent p.1)" and "the opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. (dissent p.3)"

    Basically, what Stevens is saying is that of course it's an "individual" right because it's the individual that is carry the weapon, but that this "individual right" only exists in the context of military militia service, which is the exact opposite of what most people are talking about when they say it's an "individual" right.

    Breyer's dissent is just using the arguendo technique to say that even if it was an individual right, he could still beat it. "I shall show that the District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting awholly separate interest in individual self-defense" (Breyer Dissent p.2) This is common in legal practice: you tell the other side why they're wrong and then you tell them that even if we assume they're right, they're still wrong because x, y, and z.
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    Senior Member Array Herknav's Avatar
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    Quote Originally Posted by belltoller View Post
    If you read the rest of Steven's opinion, he ties 2A directly into the maintenance of a militia.
    You're assuming I didn't read the rest of it. You missed the part where I agreed with you in general principle.

    My original point was that a lawyer, who deals in technicalities, should have caught that one. I made my point. I then defended it. I don't have anything else to say on this one.
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    I've read the whole thing a couple of times and what sticks out to me is the number of things in it that actually support the 2A, the number of reasons and facts put forward that show banning and confiscation has not worked in the past and probably won't work in the future, but it should still be done anyway, because the they know what's best for everybody and we're just to dumb to know that and turn everything over to their control. So anyway they can go around the Constitution or legal channels and get it done is OK, because it's the right thing to do, even if it won't work.
    This look into the mindset of the anti-2A side is an important lesson for our side in showing their thinking and in showing that they aren't going to ever give up and how that they never let facts or solid evidence turn them from their goal.
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    Even if the court balance is changed, its not customary for them to go back and overturn a previous ruling(unless its been many many years). Even if they did try to whittle the 2A down to nothing, remember, the Constitution can be amended, and the 2A could be re-written to overturn a SCOTUS decision.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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