What We All Need to Remember From The Heller Decision

As we bask in the glow of the McDonald victory in the Supreme Court last month, and the Heller decision recedes further back in time, it seems that there is a subtle misunderstanding about Heller, that is increasingly common, especially in the anti-gun media, that may harden into "fact".  This is the idea that the 5-4 decision in Heller narrowly affirmed that the 2nd Amendment confers and individual right to bear arms.

But this is NOT true.  All nine justices agreed that the 2nd Amendment confers and individual right to keep and bear arms.   The 5-4 decision was to overturn the Washington, D.C. handgun ban as an unacceptable infringement on the 2nd Amendment.  Let the words of the justices themselves prove this.

Justice Stevens dissenting, page 68 of the opinion:

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.

Justice Breyer, agrees, and restates the view on page 116 of his dissenting opinion:

In interpreting and applying this Amendment,I take as a starting point the following four propositions,based on our precedent and today’s  opinions, to which I believe the entire Court subscribes:
(1) 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).

 All four dissenting justices attached their names to these dissenting opinions, indicating agreement with the principles and legal reasoning contained within them.  Had any justice disagreed with the individual right view, they would surely have been afforded the opportunity to write their own dissenting opinion explaining why their arguments.  None did.

The conclusion that all nine justices find there to be an individual right to keep and bear arms kills the collective right view decisively.  We all need to keep reminding the anti-gun people of this fact.

But Some People Do Get It

And one of them is Frank J. Fleming in this article at Pajamas Media.  And he says something that totally agree with and have alluded to myself:

Let me say something that is unfortunately still news to some people: The debate over gun control is over. Done. It was over before the Supreme Court told Americans what they already knew about their right to firearms and self-defense.

And he believes this for one of the most obvious reasons:

And that’s why for the past couple of decades more and more states have added a right-to-carry law and none have taken it away.

 But the anti-gun rights crowd are living in the past, especially here in California, where AB1934 continues its inexorable advance into law, despite it being unconstitutional on its face.  No doubt when carry laws are liberalized in California, the same old fear mongering about blood in the streets and fender benders escalating into gunfights, will be heard, despite 40 states and 23 years of experience with such laws proving these claims to be spurious.

But i have no doubt that California anti-gun politicians will be at least as hard headed as Chicago anti-gun politicians.

Some People Just Don't Get It

Even after the Heller decision in 2008, and the McDonald decision last month, some people just don't get it that in the United States, firearm ownership is NOT a privilege, but a civil right.  Rebecca Berg, for example, writing in the Columbia Missourian, states in her July 22, 2010 column:

We don’t need 100 percent gun control, but some increased limits would be a positive step.  Allow handgun bans for the urban areas that need them the most, while allowing states more power to dictate specific regulations.  After all, isn’t the right to bear arms only acceptable when it does not infringe on the rights to life, liberty and the pursuit of happiness?

News flash Ms. Berg, but handgun bans in urban areas are exactly what the Supreme Court has ruled, not once, but twice, are unconstitutional infringements to the civil right to keep arms for self defense. While I agree that my right to keep arms does not indemnify me from having to justify my use of arms in self defense, prohibiting ones right to keep arms for any lawful purpose is not constitutional. 

Your column is full of fail.

1911 Pistol is "Unsafe" for California

I have written before about the California Department of Justice Roster of Handguns Certified for Sale, concluding that this system was not a creeping handgun ban based on the information I could get at the time, which was simply the total number of guns on the list.

My method ignored the types of new guns that were being approved, the types expiring and being removed, and the types newly approved and added.  Just last month many new guns were added, but most are classified as derringers, but only one semi-automatic pistol.  I have yet to find a list of new semi-automatic pistol models that have been introduced in the United States firearms market, but I suspect that it is more than the handful of pistols added to the Roster in recent years.

The most common culprit cited is the California requirement that all new pistols be equipment with a magazine disconnect mechanism, a device that prevents the pistol from discharging when the magazine is absent from the magazine well.  Most pistol manufacturers either refuse to market pistols with these devices, or their designs cannot accommodate a magazine disconnect.

Now we come to a new pistol offered for sale by Remington, the Model 1911 R1, Remington's entry into the ever more popular G.I. .45 pistol market.  This pistol is pretty much a copy of the Colt 1911A1 pistol used by the U.S. military for over 80 years, and it is one of the most popular pistol models in the United States.  But this pistol will never be available in California, because this pistol does not have a magazine disconnect feature, and is therefore "unsafe".

Note that my own Kimber Custom II also lacks a magazine disconnect, and is just as "unsafe" as the new Remington gun, but the Custom II was certified for sale before the magazine disconnect requirement, and so that model is "grandfathered in"  and will remain certified as long as Kimber maintains the listing by paying the yearly fee.

But note the arbitrariness of this law: very similar guns, one "new", one old, but both are very similar to each other, but one is declared "unsafe".  The net effect is that one model of gun is banned from the California market.

The roster is beginning to look more and more like a creeping handgun ban.  I just wish I had more industry data to support it.

Arizona SB 1070 and Hipocracy from the Left

There has been a large outcry of protest against Arizona's newly passed SB 1070.  According to many more knowledgeable about Federal law than myself, the Arizona's law largely mirrors the text of Federal law, making these crimes state crimes that will be enforced by state law enforcement agencies.

But if the new law is racist, as the protesters claim, then why is not the Federal law also racist, and why haven't the protesters rallied against the Federal laws as well?

Perhaps the reason is that Arizona laws are now likely to be enforced by the state of Arizona, rather than ignored by the United States.  To paraphrase Forrest Gump:

"Racist is as racists does, sir!"

Don't Blame Proposition 13

I have maintained for years that people blaming California's broken state government on Proposition 13 were flat wrong.  We don't have a taxation crisis in California, we have a spending crisis.  Our legislature never wants to cut any government program, and Californians evidently have never met a bond measure that they would not approve.

A new article by William Voegeli, Don't Blame Proposition 13,  confirms everything I have maintained about the effect Proposition 13 had on state government: the root of our problems lies elsewhere.  My favorite quote:

Property-tax revenues in the state have increased from $4.9 billion to $47 billion in the 30 years since Proposition 13. Adjust those figures for inflation and population growth, and property-tax revenues in California were 87 percent higher in 2009 than they were in 1979, chiefly because of rising property values.

Motion for Summary Judgement Filed in Palmer v. District of Columbia

A great explanation of the plaintiffs case is contained in the Memorandum in Support filed as part of the motion.

This case is very important for gun rights all over the country, but it is especially so for gun owners in California.  This case seeks to establish that "bear" in the 2nd Amendment applies outside the home as well as inside, forcing D.C. to allow some form of carry, either open or concealed, in nonsensitive areas of the city.

Why is this important to California?

The 2nd Amendment already applies to D.C because of the result of the Heller case. A favorable ruling in Palmer would establish a right to bear arms in 2nd Amendment jurisprudence.  While it is true that the 2nd Amendment does not apply to California at this time, a favorable ruling in McDonald v. Chicago is expected to change that in just a few weeks.

California law places great limits on the ability of people to be armed in public.  Loaded open carry of firearms is illegal in public places of incorporated towns and cities.  Unloaded open carry, thanks to AB 1934, will soon be illegal as well.  Issuance of carry concealed weapon (CCW) permits is at the discretion of law enforcement, and DOJ statistics confirm that low issuance rate in urban counties.  All of which conform that the there is no effective right to "bear" arms in California.

Assuming a favorable ruling in McDonald, a favorable ruling in Palmer will give California residents instant standing in Federal court to sue California due to the unconstitutional restraints imposed by the California laws.  The state will be forced to allow some form of carry, even though that requirement will be extremely distasteful to the state government and to urban police departments, especially in Los Angeles, Santa Clara, and San Francisco counties.

The legal ducks are just about all lined up, with only Palmer expected to take a couple of years to get up through the Federal court system.  But if and when Palmer is decided favorably, then we will be treated to the spectacle of the ultra-liberal state of California "swallowing a frog".