I answered someone just the other day when they demanded smaller gun magazines, that the continued creation of gun free zones and gun control measures was doing what in limiting gun violence? Even a close, lifelong friend suggested to me that perhaps it was time to limit magazine capacity. Former V.P. Dick Cheney suggested it and hoards of gun haters, and not so much gun haters, are “compromising” to say it’s reasonable to restrict gun rights in this fashion because………well, why is it?

The strongest argument I have heard, which is weak at best, is that if we limit magazine capacity fewer people will get killed when a deranged bastard decides to annihilate masses of people. There actually may be some substance to such an argument but let’s consider the truth, if only for a moment.

The first question to ask is how many lawful citizens that you know of kill people randomly? The Tuscon massacre was a planned out event. Do you honestly believe that Loughner would NOT have been able to get his hands on a 30-round magazine if they were deemed illegal to own?

But, I’ve been down this road a thousand times before and you can discuss the ins and outs of what restricting magazines would accomplish, if anything. However, in everything that is discussed about guns and gun restrictions, remember that owning and possessing arms is a constitutional right.

Now, back to the idiot who coined the phrase, “all rights come with restrictions”. Why do all rights come with restrictions? Most hide behind the argument that it’s for public safety or for the public good. The most overused example is that of free speech – you can’t yell “fire” in a movie theater, when there is no fire.

So let me ask you this question. Is making it unlawful to yell “fire” in a movie theater, defined as a restriction on free speech, provide for a safer experience watching a movie? Jazz Shaw, in a post at Hot Air, asks, “Shall we cut out all of our tongues to ensure they are not used maliciously?” One might think doing such would eliminate movie theater chaos. People with a deeper understanding would know that a person bent on creating the chaos would find another way to do it.

Would restricting gun owners to smaller magazines, result in fewer people killed? In reality, we have no way of knowing that. In this instance of gun rights limitations, the result of implementing such a restriction is minimal as far as public safety may be concerned but detrimental as far as the incremental chiseling away at Second Amendment rights. If not a 30-round magazine, then what? 20 rounds? 10 rounds? No rounds? Where is the line drawn? A line that was forced to be drawn because people actually thought limiting magazine capacity would limit crime.

An argument to limit magazine size is inane. To help explain that, let’s make some comparisons that most people would laugh at. First, let’s list out a bunch of things, in addition to guns, that are used, whether intentional or not, to kill people: cars, knives, baseball bats, drugs, golf clubs, chemicals, beer bottles, rope, razor blades, electricity, and you can add to this list all you would like.

Like the idea of limiting magazine size, we should then consider limiting certain things with these items readily used to kill people. With automobiles, we have done many things in an attempt to protect passengers in a car. We all know the saying – speed kills. Shouldn’t we then, using the same rationale as the magazine limitation, restrict motor sizes in vehicles? Or perhaps equip them all with a governor that presets a maximum speed? Limit the number of passengers? Create a 30-day waiting period before you can buy a car and by all means let’s limit ownership to just one?

Knives should then be either made with shorter or duller blades, made of material that can’t be sharpened or made jagged. Baseball bats should have limits on length and size, no more than 2 to a home or Little League team; drugs containing smaller doses; chemicals in smaller containers, beer bottles all made from non shattering plastic; razor blades can only be purchased one to a pack, and electricity in reduced amperes that would limit the killing power to say, just five people. Isn’t this all just silly? What are we doing about the sick individuals who want to hurt people?

The absurdity can never end. We’ve looked at Second Amendment and one right in the First Amendment, speech. Think of the others guaranteed in the First, i.e. religion, press, assembling, petitioning. Granted there are always cries under certain situations to place restrictions on all of these rights. Most are quickly rejected, so far, by the majority. But, do we treat these guarantees in the same fashion as the right to keep and bear arms?

For those who believe a reasonable compromise on gun restrictions would be to limit magazine capacity, let me leave you with this comment I found on the above Hot Air column I linked to:

Let’s say I have this cake. It is a very nice cake, with “GUN RIGHTS” written across the top in lovely floral icing. Along you come and say, “Give me that cake.”

I say, “No, it’s my cake.”

You say, “Let’s compromise. Give me half.” I respond by asking what I get out of this compromise, and you reply that I get to keep half of my cake.

Okay, we compromise. Let us call this compromise The National Firearms Act of 1934.

There I am with my half of the cake, and you walk back up and say, “Give me that cake.”

I say, “No, it’s my cake.”

You say, “Let’s compromise.” What do I get out of this compromise? Why, I get to keep half of what’s left of the cake I already own.

So, we have your compromise — let us call this one the Gun Control Act of 1968 — and I’m left holding what is now just a quarter of my cake.

And I’m sitting in the corner with my quarter piece of cake, and here you come again. You want my cake. Again.

This time you take several bites — we’ll call this compromise the Clinton Executive Orders — and I’m left with about a tenth of what has always been MY DAMN CAKE and you’ve got nine-tenths of it.

Then we compromised with the Lautenberg Act (nibble, nibble), the HUD/Smith and Wesson agreement (nibble, nibble), the Brady Law (NOM NOM NOM), the School Safety and Law Enforcement Improvement Act (sweet tap-dancing Freyja, my finger!)

I’m left holding crumbs of what was once a large and satisfying cake, and you’re standing there with most of MY CAKE, making anime eyes and whining about being “reasonable”, and wondering “why we won’t compromise”.

I’m done with being reasonable, and I’m done with compromise. Nothing about gun control in this country has ever been “reasonable” nor a genuine “compromise”.

LawDog

Tom Remington

MSSA president Gary Marbut commented, “We’ve believed all along that the federal District Court cannot grant the relief we request. We seek to overturn a half-century of bad precedent. Only the U.S. Supreme Court can do that. In that light the pending dismissal by the District Court means little except that we are now free to move to the next step of the process.”

MSSA and its partner the Second Amendment Foundation filed MSSA v. Holder on October 1, 2009, to validate the principles of the MFFA. Enacted by the 2009 Montana Legislature, the MFFA declares that any firearms made and retained in Montana are simply not subject to any federal authority under the power given to Congress in the Constitution to “regulate commerce … among the states.” The MFFA is part of a growing national effort by states to reject federal authority and control over everything. It is an assertion of states rights, and the Ninth and Tenth Amendments to the U.S. Constitution

Since the MFFA was enacted in Montana, it has been cloned and enacted in seven other states: Tennessee, Utah, Wyoming, South Dakota, Alaska, Idaho and Arizona. Other clones have been introduced in the legislatures of 20 other states.
(See: http://www.FirearmsFreedomAct.com)

MSSA v. Holder has attracted numerous amicus curiae parties that have filed supporting briefs, including the State of Utah (also representing other states), the Goldwater Institute, the Paragon Foundation, Gun Owners of America, the Weapons Collectors Society of Montana, Montana Legislators, and Legislators from other states. It is expected that other amici will join as this suit is appealed to the Ninth Circuit.

Once the Ninth Circuit rules on the appeal, plaintiffs intend to appeal any continuation of the dismissal to the U.S. Supreme Court, at which point in the process plaintiffs could get an actual ruling on the merits of the case. Or, the Ninth circuit could recognize the merit of the issues involved and remand the matter to the District Court for an actual trial.

“That the U.S. is so desperate to keep this matter from going to trial,” Marbut said, “tells me that they are very afraid of any precedent that might be established. Normally, a Motion to Dismiss is to preserve judicial economy. In this case it is to prevent a fair hearing on the significant issues we raise. The federal government doesn’t want any questions about the extent of its power.”

“The vehemence of the recommendations by the magistrate involved” Marbut continued, “demonstrates the desperation of the federal government, including its judicial branch, to prevent a fair adjudication of the issues underlying the MFFA.”

The city of Chicago threw together a gun ordinance after McDonald v. Chicago, which is nothing more than an in-your-face scoffing of the United States Supreme Court, much the same way that Washington, D.C. did after District of Columbia v. Heller. Why wouldn’t Chicago do similar things? D.C. has not really been tested as to the Constitutionality of their restrictive gun laws. After all, District of Columbia v. Heller only ruled that the District’s gun ban was unconstitutional. It did not define what can and cannot be used for gun restrictions.

Chicago’s continued gun ban ordinance – because that’s what it is – requires everyone to register their guns. The city has 120 days in order to process an application (in six months that is reduced to 45 days). A person cannot purchase and register more than one gun every 30 days and there will be restrictions of the type of guns allowed. But this “gray” area concerns me.

Guns deemed “unsafe” because of safety recalls or poor quality can’t be registered.

A safety recall on guns might be a bit more clear cut but who is going to make the determination that a gun is “poor quality”? By many people’s standards, there are a lot of “poor quality” guns readily available to purchase. This reeks of manipulation. Also don’t be fooled by this statement. If a gun cannot be “registered” it cannot be purchased and possessed within the city.

So, for those living in Chicago, once you’ve jumped through the hoops of registering your firearm, which will take up to 6 months to do, you can keep it in your house but not be allowed to have it outside, including on your porch or in your garage.

So, tell me what you think. Do you think the McDonald v. Chicago ruling provides that states cannot create any gun laws that exceed those of the Federal Government? Obama and his administration are suing the state of Arizona claiming that Arizona does not have the authority to eclipse the immigration laws of the Federal Government. Does this also mean that Illinois and specifically the city of Chicago, doesn’t have the authority to transcend Federal gun laws?

If and when this all gets sorted out, will it be determined that the Federal Government determines what gun laws will exist? And will this open the door for Federal Government to intrude further into our inalienable rights and craft stricter gun laws?

How does this all align with those states pushing back against the Federal Government in attempts to reaffirm state sovereignty?

Michelle Malkin declares the McDonald ruling “good news, bad news”. The good news of course being the Supreme Court ruling against the Chicago gun ban. Malkin states that with the NRA withholding a position of opposition against anti-gun Kagan, the bad news and surely it is. Why the hesitation? Kagan clearly is not a supporter of gun rights. Isn’t the NRA’s mission to promote and protect Second Amendment rights?

The NRA never opposed the nomination of now Justice Sotomayor until after members of the NRA Board and heads of state NRA affiliates signed and mailed a letter opposing Sotomayor to NRA management. As if there was some question about Sotomayor’s position on gun rights, that was clarified yesterday in her dissenting vote in McDonald v. Chicago.

Some point out that Kagan’s known work reveals an even greater support for strict gun control and yet we still see the NRA not officially opposing her nomination. Instead they have issued a public position stating they are “carefully reviewing” Kagan’s record and working with key Senators to make sure Kagan is “aggressively questioned”.

We see from what is found in the Malkin piece that the NRA management prohibited any NRA Board members from testifying or coming out publicly in opposition to Kagan. This is troubling and seems to mimic the same tactics this Obama administration uses in censoring anyone in opposition to his positions.

While Americans for the preservation of gun rights applaud any victory in court that supports the Constitution, we should not be willing to achieve those victories by compromising the very principles for which the Constitution itself was founded. When political wrangling, which is the norm in Washington, becomes a part of the NRA’s policies, it can only be expected that something will be given up in order to get.

Which brings me to wondering what the NRA gave up in order to get themselves an exemption in the DISCLOSE Act? Was it that they could have the exemption if they promised not to oppose the Kagan nomination? Who knows but the reality is that when you play these games, questions remain and speculation takes over.

Tom Remington

We learned yesterday that Kagan was “not sympathetic” to one man fighting for his Constitutional right to keep and bear arms. According to Klukowski, as Solicitor General, Kagan did not seek oral argument time or even file a brief in the recent case of McDonald v. Chicago.

As Klukowski points out, Kagan should have at least filed a brief in this case as the crux of the entire appeal is to whether or not the 14th Amendment to the United States Constitution incorporates the Second Amendment, an obvious federal issue. Instead, she remained silent. Was this a blatant attempt to stay “off record” on gun rights as Obama and Kagan had previously conspired to sterilize her record as much as possible so she could more easily fill a vacant seat on the Court? It would appear as such.

Also remember that Kagan was part of the Bill Clinton Administration that destroyed our Second Amendment rights through the Assault Weapons Ban in which they created lists of guns to ban that stretched even the wildest of imaginations as to what might constitute an “assault” weapon.

It is Klukowski’s contention that Obama intends to attack the Second Amendment right and destroy it through building a Supreme Court comprised of anti gun justices who will approve any kind of ban of guns. He was able to place Sotomayor there and we are all quite familiar with her past record on gun rights cases.

However, according to Bloomberg, her comments on District of Columbia v. Heller, were:

“There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation,”

When people ask why it is that people question the personal views of nominated judges on subjects such as Second Amendment, or Roe v. Wade, this is why. The role of a law clerk, in this case what Kagan was doing in her job under Justice Marshall when she made her comment, is to advise the judge, supposedly based on law, about a ruling. When we hear of a clerk making reference that she is “not sympathetic” about an American citizen’s concern for the protection of his Constitutional rights, it now becomes extremely important as to whether this person should be in a position to hand down rulings. Can we be comfortable believing that she is interpreting the law or being sympathetic or unsympathetic?

On this very blog, I have been vigilant in posting information about states proposing, passing and signing legislation in attempts to nullify federal authority of gun control laws forced onto them. But this push back we are witness to is now reaching beyond the Second Amendment. States are passing bills declaring the federal government can’t force them to “buy into” federal run health care. Utah has effectively told the federal government it’s taking back some of it’s lands. Other states don’t want anything to do with federal ID cards, they’re ignoring federal marijuana laws, have put the feds on notice that their local police departments have more authority than they do and that National Guard troops can be recalled by states.

These are just some samples of a movement that has at least 26 states proposing, passing or signing “Firearms Freedom” bills that tell the federal government to back off. This spreading action is a pretty good indication that states are fed up with an overreaching federal government but will it do any good? More importantly does any of this hold any legal strength? The New York Times has more.

It is unfortunate that Americans have sat by essentially doing nothing while states’ rights have been usurped. It is obvious the stealing of rights has gone too far and some want to reclaim that power and sovereignty. Only time and years of litigation can answer many of the questions. The immediate affect might come at the polls in November.

The model for most of these bills came from Montana’s Firearms Freedom Act, a bill that basically states that any gun or gun accessory manufactured in Montana that is purchased and remains in Montana, cannot be regulated by the Federal Government of the United States. Montana is seeking “Declaratory Judgment” before suggesting that anyone proceed with the manufacturing of guns and accessories.

In reality what these Firearms Freedom Acts are doing is “nullifying” the authority of the Federal Government to regulate guns within the borders of each state when none of the guns or related products ever leave the state. The Federal Government has been very successful in the past in regulating all guns through the “Commerce Clause” of the Constitution. Montana’s bone of contention is that the Commerce Clause has regulated interstate commerce and has no authority over intrastate commerce.

One might ask if this is a full blown act of nullification. It’s not that Montana and other states are saying that any or a specific federal law is being declared unconstitutional in it’s entirety. In this case any law that the Federal Government thinks gives them authority to regulate intrastate gun manufacturing, is being challenged.

Gary Marbut, President of the Montana Shooting Sports Association and one of the sponsors of the MFFA, says this is a states’ rights issue.

This is a states’ rights effort, using firearms as the object of the exercise. The MFFA exempts Montana-made and retained firearms, firearm accessories and ammunition from federal power, saying that if these items do not cross state lines, they are strictly INTRAstate commerce, not INTERstate commerce, and not subject to federal authority.

Although nullification isn’t a term that is widely used these days, there are other examples of modern day nullification or challenges to certain federal laws. Two that come to mind are the REAL ID Act and marijuana laws. Some states have passed legislation challenging the constitutionality of forcing citizens to have to carry an identification card they believe infringes on their right to privacy and the Constitution. And, some states have passed their own laws authorizing marijuana for medical use where the Federal Government bans all uses and possession of the drug.

We may also be staring down the barrel of nullification depending on what happens with President Obama’s proposed National Health Care plan. If it is mandated that every American citizen have health insurance, many have asked where in the Constitution does the Federal Government have that kind of authority.

Probably the most recent case that expanded the power of the Federal Government to regulate commerce, came in 1942 in the Wickard v. Filburn case. This came at a time when President Roosevelt demanded the power to institute his programs he thought where going to get us on the road to recovery after the Depression. Scary isn’t it.

One of the more notable accounts of nullification was in 1832 in South Carolina. South Carolina’s “Ordinance of Nullification” declared the Tariff of 1828 and Tariff of 1832 unconstitutional. This put President Andrew Jackson in quite the predicament. While Jackson quietly assembled his army, ready to invade South Carolina, negotiations continued. Jackson’s fear was that if South Carolina were to be allowed nullification, many of the southern states would follow suit. Also many of the New England states apposed the tariffs. Jackson feared that secession would follow the nullification and this would lead to the demise of the Union. He also feared that an invasion of South Carolina could just as easily lead to civil war.

Other than President Jackson’s fear of the trouble in South Carolina, his bigger deterrent was coming from the fact that several other states, although never officially declaring nullification, were poised to do so.

Perhaps it is telling that so many states are seeking some form of nullification, some dealing with REAL ID, others medical marijuana and 25 states or more, opting to use gun rights as their tools to seek out a return of more state sovereignty, as is granted us in the Tenth Amendment. What does it tell us that so many states chose gun rights as their tool? And what does it tell us about the people’s attitudes toward the expansion of government.

Where will this go? First we should wait to see what the Court rules in the Montana Firearms Freedom Act case and watch to see how many other states pass and get signed their “nullification” bills. Soon, then, we can declare, “Balls in your court!

Tom Remington

Photo from fOTOGLIF

District of Columbia v. Heller ruled that citizens have a right to have a gun in their homes to protect themselves. The ruling made it clear that the Second Amendment guaranteed an individual the right to keep and bear arms. What didn’t get decided in Heller was what, if any, restrictions on those guaranteed rights were allowable. It appears McDonald will not tell us that either.

There is no clear cut established “gun right”. It is not defined. The only thing that has shaped gun rights or gun restrictions, has been state and local laws through our jurisprudence. As we have seen, some of those restrictions have gone so far as to deny certain citizens the right to possess a gun at all, as was the case in Heller, in the District of Columbia and McDonald, in Chicago.

If SCOTUS should rule to force Chicago to abide by the Second Amendment through the “Due Process Clause” of the Fourteenth Amendment, then the question becomes, how much? Will the court offer any ruling as to where Chicago should begin?

In oral arguments, former Solicitor General Paul D. Clement, representing the NRA, suggested that there should be a “carry over” of Second Amendment laws along with the Fourteenth Amendment incorporation.

Personally, I believe the Court will react much the same way it did in Heller. They will make a ruling of whether Second Amendment rights extend to the states and then leave it up to the courts to hammer out what will then become “reasonable” restrictions on guns.

After Heller, even though the High Court ruled that a ban on gun ownership was unconstitutional, the District of Columbia did not make it easy for anyone to get a gun and register it. I foresee the same events in McDonald.

Tom Remington