The Donkey
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Jim Webb is a pro-gun democratic candidate for the US Senate in Virginia.
I am informed by the Jim Webb for Senate campaign that the campaign filled out the NRA questionnaire supporting NRA positions 100%, and that he expected to be rated with an A+. Webb is a real life war hero: a man of integrity from SW Virginia who has a carry permit, walks a rifleman’s walk and “sweats bullets.” He is going to stay true to the people of Virginia who send him to the Senate: there is just no way that this guy is going to vote for further gun restrictions.
But the NRA has him listed at this time with a “?” signifying that he did not fill in the questionnaire.
I suspect that this supposed “confusion” on the part of the NRA may have something to do with his party affiliation, and not his positive position on guns. This seems to be based on the theory that if the gun community elects democrats -- even forcefully pro gun Democrats like Jim Webb – they will confirm evil Liberal Judges to the Supreme Court. These liberals -- they suppose -- will do bad stuff to the Second Amendment.
I have developed quite the opposite view: I start with the observation that the Supreme Court has no modern 2nd Amendment jurisprudence: the last time the Supremes visited it: United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939), the Court upheld the National Firearms Act of 1934, and determined that it did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. However, as Clarence Thomas recently observed, and as the 5[sup]th[/sup] Circuit in Emerson explained “the Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.”
Insofar as I can tell, Justice Thomas -- the Supreme Court’s most activist Justice -- is the only one of the nine who has any real record of enthusiasm for the Second Amendment. I am told that Justice Scalia may be on board, but he is considered by some to be a “rule conservative” and I think that we could be disappointed by him in a crunch.
So if Thomas gets his way, and the Court actually takes up the 2nd Amendment, that would likely be BAD for gun owners, as it has been in most cases where lower court conservatives have considered the 2[sup]nd[/sup] Amendment: my guess is that most judges want the political system to address substantive 2nd Amendment issues, and keep it OUT of the Supreme Court.
While we can be pleased with the scholarship that went into the 5[sup]th[/sup] Circuit’s Emerson decision, I can’t see the other Circuits or the Supreme Court running to embrace it: The recent victories for gun owners at the Supreme Court have come for reasons completely divorced from the 2[sup]nd[/sup] Amendment: it is the Court’s hard line view of states’ rights -- not individual gun owners’ rights -- that caused the undoing of gun free school zones and federal Brady Law mandates.
But Federalism is not likely to yield many more treats for gun owners beyond that: instead radical Federalism may have some harsh tricks for the gun world: eroding private property rights, and preventing the enforcement of conservation laws, for example.
Bush’s recent appointments to the Court essentially ensure that the gun world’s gains in the “State’s rights” area will not go away, but make it more likely that unfortunate excesses may occur. My developing view is that liberal Justices are a good counterbalance against Federalism run amok, and the consequences that might have for gun owners.
The real important gun rights fights are likely to come over issues like qualified immunity, standing, the Eleventh Amendment, and some of the other complimentary provisions of the Bill of Rights. The Court’s moderate to liberal wing is very good for gun owners and users who hope to enforce their rights in civil actions against state and local governments. Judges like Thomas and Scalia differ – most significantly for gun owners – from the moderate Judges who are left on the Court in that they tend – with a few notable exceptions -- to construe the rights of the people guaranteed in the Bill of Rights against the people, and construe the remedies for vindication of those rights into non-existence. So no matter what the 2nd Amendment or the law says, these so-called Conservatives have made it easier for officials not to process your gun paperwork; to keep illegal records on you because of your guns; to prevent you from going places where you have a right to be with your guns(see, e.g., http://www.washingtonpost.com/wp-dyn/articles/A50416-2004Jul14_2.html ); to enter your house; to confiscate your guns, to arrest you because of your guns; and to shoot you or kick your ass in the process for good measure. Because of these Justices, gun owners who have their rights violated in these ways find they have little to nothing they can do about it.
I cite as an example the experiences of your own Mike Stollenwerk in regard to the federalist/strict constructionist’s 11th Amendment and “standing” jurisprudence. Clearly these restrictive doctrines hampered his efforts to get the State of Pennsylvania to approve carry permits and gun sales without illegally demanding Social Security Numbers, and how the Right Wing’s legal jurisprudence affects gun owners rights generally.
As to these supposed evil “liberals” they are about liberties: just like we are: they just would like to forget about the Second Amendment. But if the Court is not destined to grapple directly with the Second Amendment anyway, we should not fear them: we should embrace them: the rule conservatives are just as bad as the liberals are on the Second Amendment, but the liberals are better on ALL other likely gun issues than conservatives.
Take Justice Ginsburg, for example: as a federal appellate judge, she found that the “free exercise” of religion required the DC government to grant a drivers license to a person who refused to disclose a social security number, because that person was a Christian fundamentalist who thought the SSN was “the Mark of the Beast.” That kind of individual rights emphasis is consonant with the individual rights emphasis that most gun owners would like to see applied to gun rights.
And so it is my contrarian proposition that most outdoorsmen and gun owners likely will approve of the kind of decisions that democratic appointees actually will write in the foreseeable future on the Court: and from that, that the election of pro-gun democrats to the Senate and White House is a good thing -- or at least not bad – insofar as gun rights in the Third Branch are concerned.
The Donkey
Jim Webb is a pro-gun democratic candidate for the US Senate in Virginia.
I am informed by the Jim Webb for Senate campaign that the campaign filled out the NRA questionnaire supporting NRA positions 100%, and that he expected to be rated with an A+. Webb is a real life war hero: a man of integrity from SW Virginia who has a carry permit, walks a rifleman’s walk and “sweats bullets.” He is going to stay true to the people of Virginia who send him to the Senate: there is just no way that this guy is going to vote for further gun restrictions.
But the NRA has him listed at this time with a “?” signifying that he did not fill in the questionnaire.
I suspect that this supposed “confusion” on the part of the NRA may have something to do with his party affiliation, and not his positive position on guns. This seems to be based on the theory that if the gun community elects democrats -- even forcefully pro gun Democrats like Jim Webb – they will confirm evil Liberal Judges to the Supreme Court. These liberals -- they suppose -- will do bad stuff to the Second Amendment.
I have developed quite the opposite view: I start with the observation that the Supreme Court has no modern 2nd Amendment jurisprudence: the last time the Supremes visited it: United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939), the Court upheld the National Firearms Act of 1934, and determined that it did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. However, as Clarence Thomas recently observed, and as the 5[sup]th[/sup] Circuit in Emerson explained “the Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.”
Insofar as I can tell, Justice Thomas -- the Supreme Court’s most activist Justice -- is the only one of the nine who has any real record of enthusiasm for the Second Amendment. I am told that Justice Scalia may be on board, but he is considered by some to be a “rule conservative” and I think that we could be disappointed by him in a crunch.
So if Thomas gets his way, and the Court actually takes up the 2nd Amendment, that would likely be BAD for gun owners, as it has been in most cases where lower court conservatives have considered the 2[sup]nd[/sup] Amendment: my guess is that most judges want the political system to address substantive 2nd Amendment issues, and keep it OUT of the Supreme Court.
While we can be pleased with the scholarship that went into the 5[sup]th[/sup] Circuit’s Emerson decision, I can’t see the other Circuits or the Supreme Court running to embrace it: The recent victories for gun owners at the Supreme Court have come for reasons completely divorced from the 2[sup]nd[/sup] Amendment: it is the Court’s hard line view of states’ rights -- not individual gun owners’ rights -- that caused the undoing of gun free school zones and federal Brady Law mandates.
But Federalism is not likely to yield many more treats for gun owners beyond that: instead radical Federalism may have some harsh tricks for the gun world: eroding private property rights, and preventing the enforcement of conservation laws, for example.
Bush’s recent appointments to the Court essentially ensure that the gun world’s gains in the “State’s rights” area will not go away, but make it more likely that unfortunate excesses may occur. My developing view is that liberal Justices are a good counterbalance against Federalism run amok, and the consequences that might have for gun owners.
The real important gun rights fights are likely to come over issues like qualified immunity, standing, the Eleventh Amendment, and some of the other complimentary provisions of the Bill of Rights. The Court’s moderate to liberal wing is very good for gun owners and users who hope to enforce their rights in civil actions against state and local governments. Judges like Thomas and Scalia differ – most significantly for gun owners – from the moderate Judges who are left on the Court in that they tend – with a few notable exceptions -- to construe the rights of the people guaranteed in the Bill of Rights against the people, and construe the remedies for vindication of those rights into non-existence. So no matter what the 2nd Amendment or the law says, these so-called Conservatives have made it easier for officials not to process your gun paperwork; to keep illegal records on you because of your guns; to prevent you from going places where you have a right to be with your guns(see, e.g., http://www.washingtonpost.com/wp-dyn/articles/A50416-2004Jul14_2.html ); to enter your house; to confiscate your guns, to arrest you because of your guns; and to shoot you or kick your ass in the process for good measure. Because of these Justices, gun owners who have their rights violated in these ways find they have little to nothing they can do about it.
I cite as an example the experiences of your own Mike Stollenwerk in regard to the federalist/strict constructionist’s 11th Amendment and “standing” jurisprudence. Clearly these restrictive doctrines hampered his efforts to get the State of Pennsylvania to approve carry permits and gun sales without illegally demanding Social Security Numbers, and how the Right Wing’s legal jurisprudence affects gun owners rights generally.
As to these supposed evil “liberals” they are about liberties: just like we are: they just would like to forget about the Second Amendment. But if the Court is not destined to grapple directly with the Second Amendment anyway, we should not fear them: we should embrace them: the rule conservatives are just as bad as the liberals are on the Second Amendment, but the liberals are better on ALL other likely gun issues than conservatives.
Take Justice Ginsburg, for example: as a federal appellate judge, she found that the “free exercise” of religion required the DC government to grant a drivers license to a person who refused to disclose a social security number, because that person was a Christian fundamentalist who thought the SSN was “the Mark of the Beast.” That kind of individual rights emphasis is consonant with the individual rights emphasis that most gun owners would like to see applied to gun rights.
And so it is my contrarian proposition that most outdoorsmen and gun owners likely will approve of the kind of decisions that democratic appointees actually will write in the foreseeable future on the Court: and from that, that the election of pro-gun democrats to the Senate and White House is a good thing -- or at least not bad – insofar as gun rights in the Third Branch are concerned.
The Donkey
