Author Archive

The Dick Act and Gun Control

Posted by on Jan 25 2013 | Dick Act, guns, Militia

The first federal statutes governing the Militia of the United States were enacted in 1792.  There were some revisions in 1795. During the Civil War, an amendment removed the language that had restricted federal militia membership to free whites.

The old militia statutes were repealed and replaced by the Militia Act of 1903, 32 Stat. 775, commonly known as the ‘‘Dick Act’’ for its sponsor Representative Charles W.F. Dick, a Major General in the Ohio National Guard.

The Dick Act gave formal federal recognition—and financial support—to the National Guard, which had begun as a volunteer state-based civic organization after the Civil War. According to the Dick Act, the ‘‘organized militia’’ of the United States is the National Guard, plus Naval Militias maintained by some states. 10 U.S.C. §311(b)(1).

The Dick Act also defines the ‘‘unorganized militia.’’ The unorganized militia is all able-bodied men between 17 and 44 years of age who are United States citizens (or ‘‘have made a declaration of intention to become
citizens’’), and who do not belong to the organized militia. 10 U.S.C. §311(a), (b)(2). They are subject to call-up by the federal government in order to ‘‘execute the Laws of the Union, suppress Insurrections [or] repel Invasions,’’ under the Constitution’s Militia Clauses. (Clause 15 of Article I, sect. 8 is the “Calling Forth” clause. Clause 16 grants Congress the power to organize, arm, and discipline the militia.)

The best book on the early history of the National Guard, including the Dick Act, is Jerry M. Cooper, The Rise of the National Guard: The Evolution of the American Militia, 1865-1920 (2002). During the late 19th and early 20th century, the National Guard and the National Rifle Association were very closely intertwined.

The Dick Act has long been a part of the Second Amendment debate in the United States, since the Act plainly shows that Militia is not solely the National Guard.

These days, however, a ridiculous email is being circulated, which claims that the Dick Act absolutely prohibits any form of gun control for men 17-44. Further, the email asserts, preposterously, that the Dick Act is unrepealable, because repeal would violate the Bill of Attainder and Ex Post Facto clauses. David Hardy deconstructs this email over at his excellent blog, Of Arms and the Law. Hardy’s blog is mandatory reading for anyone with a serious interest in firearms law and policy.

Grotesquely wrong emails such as this are, objectively speaking, helpful to gun prohibitionists. To the extent that pro-rights activists mistakenly rely on the email, and use it as the basis for arguments that they send to elected officials in opposition to proposed anti-gun laws, the activists are wasting their time with arguments that are plainly incorrect, and therefore will not be persuasive to elected officials. Further, some readers who fall for this email hoax may imagine themselves immune from vast array of repressive laws which are being pushed in Congress and the state legislatures, some which have already been enacted in New York. As a result, these readers may sit on the sidelines politically, failing to get involved at a time when citizen activism is essential.

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Ronald Reagan’s AR-15

Posted by on Jan 15 2013 | AR-15, Colt Single Action Army revolver, guns, Ronald Reagan

In June 1992, retired President Ronald Reagan was presented with some gifts from the American Shooting Sports Council, a trade association for the firearms industry. (ASSC later merged with the National Shooting Sports Foundation, an older industry group.) The gifts were a Colt semi-automatic AR-15 rifle, a gold-engraved Colt Single Action Army .45 revolver, and a beautiful custom holster from Galco. He loved the gifts, and had a great time with them at his Rancho del Cielo. As he explained, many of the guns which he had been given as President were in the Reagan Museum, and he was not allowed to use them. So he was grateful to have some new guns of his own. You can read the whole story here, with lots of photographs, in this PDF from the August 1992 issue of The Alliance Voice, the magazine of the ASSC:  Ronald Reagan’s AR-15.

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Activities for Gun Appreciation Day

Posted by on Jan 14 2013 | guns

Saturday, January 19, is Gun Appreciation Day. Americans are urged to “go to your local gun store, gun range, or gun show” and to show their support for Second Amendment rights. The blog Shall Not Be Questioned, which has long been one of the most influential and thoughtful pro-RKBA blogs, endorses Gun Appreciation Day, but raises some important caveats.

In particular, many people imagine “that by going to the gun show, or by buying guns and some ammunition, they were making a statement. Folks, if this belief becomes widespread, we’re going to lose. Communicating with lawmakers is crucial at a time like this.”

If you want to go to a gun store, and pay $3,000 for an AR-15 (assuming you can find one) that would have cost $900 five weeks ago, go ahead. Or if you want to practice gun safety at your local range, while wearing a pro-rights shirt, that’s fine too.

But neither of these actions is going to have much practical effect in protecting the Second Amendment. Far more valuable would be volunteering to help a local organization hand out flyers at a gun show. These days, the lines are literally hours-long just to get into a gun show, so you’ll find plenty of people waiting in line who will be grateful for something to read.

Alternatively, spend a couple hours writing some short letters to your U.S. Senators, U.S. Representative, Governor, State Senator, and State Representative. A printed postal letter is best, because it demonstrates that you took some time to create it. Chapter 15 of my 1993 book Things You Can Do to Defend Your Gun Rights provides tips on writing letters to elected officials.

For your friends who don’t want to write a postal letter, but who might be willing to send an e-mail, the Ruger website provides easy tools to find your legislators and email them. (An admirable change compared to 1989, when Ruger, like a lot of the American firearms industry, was too timid to speak out against the false claim that semiautomatic rifles are “assault weapons.”)

January 19 is an especially propitious day to become a member of the National Rifle Association or another Second Amendment group.

If you want to engage in firearms commerce, there are alternatives to fighting the crowds at gun stores and gun shows. My favorite place to purchase accessories is MidwayUSA, which has an incredibly large variety of tools and supplies. MidwayUSA is also a very generous contributor to Second Amendment groups, and to conservation.

While political participation is very important, the most important long-term factor in the survival of the Second Amendment is the percentage of the population which understands firearms. The mass confiscations of firearms in Great Britain and Australia, which Howard Dean (among others) touts as the model for the United States, never would have taken place if the general public in those countries had even a minimal familiarity with firearms. So take a newbie shooting. I recommend that you introduce them to a .22, at a outdoor range. Ranges may be less crowded on Jan. 20 than on the 19th.

If all you knew about guns was what you learned from MSNBC, or much of the rest of the national media, then you would imagine that the only time that guns are important are when then are used in terrible crimes. But in truth, guns in America are used every day in America in ways that never attract national media attention:  Far over a thousand of times per day (literally) for self-defense. Their presence is so many American homes is the most important reason why burglars attack American homes so much less often then the occupants are present, compared to countries where defensive gun ownership is prevented. They are the last-resort deterrent to genocide, as shown by the fact that every genocide perpetrator in the last century has assiduously disarmed the intended victims first. Besides that, guns are used for target shooting, to put healthy food on the table, and the Pittman-Robertson excise taxes are a prime reason why so much American wildlife is thriving today, having recovered from the dire conditions of the early 20th century.

Appreciate guns on January 19? Definitely. Do so in a way that will help protect the Second Amendment from immediate threats, and will preserve it for the future generations.

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Bleg on Apps development

Posted by on Jan 09 2013 | Uncategorized

I would like to create an Android app and an IOS app for my website, davekopel.org. My requirements are: I want to be able to submit the app to the Google Play and Apple Stores, rather than the app being available solely on a third party website. The app does not have to be highly sophisticated; my website has about a thousand html files, and a lot of pdfs, but (except for my three-column home page) all the html files are single column, without a lot of coding. (I recently figured out how to use CSS.) The app needs to be able to handle typical things such as a Twitter feed, RSS, search, YouTube channel, audio and video links, etc. But nothing fancy; I don’t create Flash for my website.

I’m willing to pay, and would prefer to pay a one-time fee, rather than a perpetual monthly fee. So, in light of all that, what web services do readers recommend for me to build the apps?

Update: To clarify my objectives, in response to comments. Basically, I’m looking for something like the apps created by Reason, Cato, or Daily Caller. To give people simpler access to information about what’s new on the site, and to enable them to navigate the site. I’m not trying to put all the full site content itself into somebody’s cell phone.

I realize that anybody can get the same information just by using their mobile phone browser, and visiting the website directly. All my html pages have the barebones coding to be mobile-friendly:

<meta name=”viewport” content=”width=device-width, initial-scale=1.0, maximum-scale=2.0, user-scalable=yes” />

In my own use of Android, I sometimes find it easier to just use the Reason App, rather than browsing to www.reason.com, in order to see what’s new at Reason, and to possible read an article, or watch a new Reason video. All I’m trying to do is provide similar a similar app for my site.

 

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How to stop school shootings right now: Abolish pretend “gun-free zones”

Posted by on Jan 09 2013 | education, guns, Right to carry

Real gun-free zones (enforced by metal detectors backed up by armed security guards) are fine for certain buildings. Pretend gun-free zones (bans on gun carrying by licensed people, but no procedures to keep out criminal gun carriers, and exacerbated by the absence of armed security) are magnets for mass killers. There is a reason why mass killers frequently attack schools, movie theaters, or shopping malls which are pretend gun-free zones.

My article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, 42 Connecticut Law Review 515 (2009), examines the policy arguments. The article details some (but far from all) of the instances in which a lawfully-armed person at the scene has thwarted attempted mass murders. The reason that everyone knows about Sandy Hook Elementary, and few people know about Pearl High School is that the latter had a Vice-Principal with a gun.

NRA Executive Vice President Wayne LaPierre’s call for armed guards in schools is a good idea. Especially in light of the copycat effect which results from heavy media coverage of notorious crimes, the policy ought to be implemented right away.

Opponents of LaPierre’s proposal say, wrongly, that armed security at Columbine did no good. At Columbine High School, the attack coincided with the “school resource officer” (a sheriff’s deputy) being off-campus.  The officer returned during the start of the attacks, and fired some long-distance shots at the killers, who were on the school porch. Those shots drove the killers into the school building, and saved the lives of several students who had been wounded. Atrociously, the officer failed to pursue the killers into the building. Dozens of additional officers arrived within minutes, but none of them entered the building either, even though an open 911 line indicated that killings were taking place in the library, while police stood outside, near the library door, just a few feet away. At least 11 of the 13 Columbine deaths could have been prevented if the police had acted promptly. Fortunately, since Columbine, police tactics have changed drastically, to emphasize that whoever is at the scene should immediately and aggressively counter-attack an active shooter. Unlike gangsters or ordinary street thugs, mass killers tend to be weaklings and cowards who crumble quickly at armed resistance.

The limitation of LaPierre’s proposal is that a single guard cannot cover a large building simultaneously, and on a large campus, such as Virginia Tech, campus police may be spread too thin to provide prompt protection.

So LaPierre’s idea ought to be supplemented by the Utah model: if a teacher has (after a fingerprint-based background check, and a safety training class) been issued a permit to carry a concealed handgun throughout the state, there should not be a special exception which prevents the teacher from carrying at her place of employment.

People raise all sorts of speculative objections to this policy. But the Utah experience refutes the speculation. The policy has been in effect for years in Utah, and there have never been any problems caused by armed teachers. Not a single one.

At Utah public colleges and universities, the same law has applied for years, so that school employees, and students who are least 21 years old, can carry lawfully. That has been the rule at Colorado State University since 2003, at almost all other Colorado public institutions of higher education since 2010, at the final hold-out (the University of Colorado) since early 2012, when CU lost 7-0 in the Colorado Supreme Court. Opponents have raised all sorts of hysterical scenarios (e.g., 18-year-olds bringing Kalashnikov rifles to a kegger; students pulling a gun during a heated debate in a literature class), but of course none of these scenarios have come to pass.

The various gun control proposals of President Obama, Mayor Bloomberg, Senator Feinstein, and Rep. McCarthy might or might not be a good ideas in themselves, but even under a best-case scenario, they are not going to instantly and drastically reduce the death toll from mass shootings. Pervasive armed resistance–the abolition of pretend gun-free zones–would have that effect.

To recognize and then eliminate the deadly peril of pretend gun-free zones does not preclude a person from also supporting new gun controls, or improvements in mental health care, or less glamorization of criminal violence by  Hollywood, or whatever else the person thinks could be helpful in in the long run. In the short run, stopping the next Sandy Hook means ending the deadly policy which gave the killer 20 minutes (until people with guns, the police, finally arrived) to fire 150 shots and repeatedly change magazines, murdering at leisure.

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Why Louis Michael Seidman should not ignore the Constitution

Posted by on Jan 05 2013 | Constitutional History, Constitutional Theory

Rob Natelson explains in this essay, which points of some of Seidman’s major historical errors about the Founding Era and constitutional history.

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Moore v. Madigan, key points

Posted by on Dec 11 2012 | guns, Right to carry

Judge Posner’s opinion for a 2-1 panel of the 7th Circuit. Illinois is the only state which forbids gun carrying in public as a matter of law. There is no provision for the issuance of licenses for concealed carry, or for open carry. Both are banned. There are some exceptions for particular activities (e.g., while hunting), and for persons with a special occupational status (e.g., licensed security guard, some government officials).

According to the Supreme Court, 1791 (year of ratification) is the crucial year for the Second Amendment’s original meaning. The usual suspects (Saul Cornell, etc.) claim that there was no generally recognized right to carry in 1791. But the “Supreme Court rejected the argument. The appellees ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication of the analysis that the constitutional right of armed self defense is broader than the right to have a gun in one’s home. . . .A right to bear arms thus implies a right to carry a loaded gun outside the home.”

“And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.” Besides English precedents about restrictions on carrying in certain places or in certain ways were not general prohibitions. Discussion of frontier conditions, and observation that today,

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

Judge Posner then surveys the social science evidence about gun carrying, and concludes that it is, on net, indeterminate, and besides that, irrelevant:

In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. . . . Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban,  Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.

The State cannot win the case by showing a mere rational basis for the law. Another 7th Circuit case, Skoien, upheld the federal gun ban for convicted domestic violence misdemeanants, and in doing so used intermediate scrutiny, and required the government to produce lots of empirical evidence. In the instant case, the government “would have to make a stronger showing” than in Skoien, since the Illinois carry ban applies to everyone, whereas Skoien involved “a class of persons who present a higher than average risk of misusing a gun.”

“Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home, [James] Bishop [Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L. Rev. 907 (2012)], supra, at 910; David B. Kopel, “The Second Amendment in the Nineteenth Century,” 1998 BYU L. Rev. 1359, 1432–33 (1998)—a more limited prohibition than Illinois’s, however.” Illinois offers no evidence why it has some unique need to ban gun carrying; if Illinois’s carry ban were such a great idea, then at least one or two states would have emulated it.

Reiterates Heller’s exceptions: “children, felons, illegal aliens, lunatics, and in sensitive places such as public schools.” Notes with approval that some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms.

In Kachalsky v. Westchester County, the 2d Circuit recently upheld NY State licensing law that requires a carry permit applicant to prove that he suffers from some unique or unusual threat.  Posner chides the 2d Circuit for re-opening historical issues that were settled by Heller. But “Our principal reservation about the Second Circuit ’s analysis.” Posner writes, “is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction.” In support, the 2d Circuit cited Lawrence v. Texas. Posner replies: “Well of course—the interest in having sex inside one’s home is much greater than the interest in having sex on the sidewalk in front of one’s home. But the interest in self-protection is as great outside as inside the home.”

Moreover, Posner writes, the main purpose of Kachalsky’s inside/outside distinction was to justify intermediate scrutiny for restrictions on guns outside the home. In Madigan, “our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.” [Study tip for law students: 3-tier scrutiny doesn't explain everything. If a government prohibited everyone from speaking out loud in public places, a court does not need to use strict or intermediate scrutiny to decide if the ban is constitutional. Blanket bans on speaking in public places are per se void, and so are blanket bans on bearing arms in public places.]

Judge Posner addresses the concern of 4th Circuit Judge Harvie Wilkinson [US v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)] that delineating the constitutional boundaries of the right to bear arms takes judges into “a vast terra incognita.” Posner agrees, but points out that the new world “has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts.”

The Illinois carry ban is illegal. The Court’s mandate will be stayed for 180 days, “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.”

 

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Does any government have the legitimate power to ban medical marijuana?

Posted by on Dec 10 2012 | Constitutional History, Constitutional Law, Constitutional Theory, Criminal Law, Growth of Government, Paternalism

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes….” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

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Bleg on U.N. extreme interpretations of treaties, and of extreme interpretations of Americans with Disabilities Act

Posted by on Dec 05 2012 | International Law, Treaties

Earlier this week, the Senate rejected the proposed  U.N. Convention on the Rights of Persons with Disabilities. Among the reasons for the rejection was fear that, even if the Convention’s language itself was acceptable, the future interpretation of the Convention would be in the hands of a U.N. bureaucracy, which might invent novel or excessive interpretations. Therefore, I respectfully request commenters to describe previous situations in which a UN body has, in the commenter’s view, made an inappropriate interpretation or application of a Convention of Treaty.

And since the CRPD was modeled, in part on the U.S. Americans with Disabilities Act, commenters are also welcome to point out some of what they consider to be the most extreme, inappropriate, or unexpected applications and interpretations of the ADA itself.

 

 

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First item of new post-election “flexibility”: U.N. gun control

Posted by on Nov 07 2012 | guns, International Law, obama, Treaties

As reported by the Second Amendment Foundation, this morning the Obama administration joined a U.N. majority which called for convening a new conference to create a global Arms Trade Treaty.

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