NRA Shoots Itself in the Foot

I previously blogged about the NRA’s misbegotten motion, which the Supreme Court granted, to carve 10 minutes of oral argument time away from the petitioners in McDonald v. Chicago. Essentially, there was no discernable reason for the motion other than to ensure that the NRA could claim some credit for the eventual victory, and thus boost its fundraising.

Well, having argued that petitioners’ counsel Alan Gura insufficiently covered the argument that the Second Amendment should be “incorporated” against the states via the Fourteenth Amendment’s Due Process Clause, the NRA has now filed a brief that fails even to reference the four biggest cases regarding incorporation and substantive due process. That is, the NRA reply brief contains no mention of Washington v. Glucksberg (1997), Benton v. Maryland (1969), Duncan v. Louisiana (1968), or Palko v. Connecticut (1937). (The NRA did cite those cases in its opening brief.) What is more, it also lacks a discussion of Judge O’Scannlain’s magisterial Ninth Circuit opinion in Nordyke v. King (2009), which the Supreme Court might as well cut and paste regardless of which constitutional provision it uses to extend the right to keep and bear arms to the states!

I should add that the petitioners’ reply brief does cite all of those aforementioned cases (as well as the “Keeping Pandora’s Box Sealed” law review article I co-authored with Josh Blackman). I leave it to the reader to determine whether it is Alan Gura or the NRA who is better positioned to argue substantive due process — or any other part of the McDonald case.

For more on the rift between the McDonald petitioners and the NRA, see this story in today’s Washington Post (in which I’m quoted, full disclosure, after a lengthy interview I gave the reporter last week).

(Full disclosure again: Alan Gura is a friend of mine and of Cato, and I suppose I should also say that I’ve participated in NRA-sponsored events in the past.)

CP at Cato's blog.

Yes, California, There is an Individual Right to Keep and Bear Arms

Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense. While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.

Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.

Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:

We therefore conclude that the right to keep and bear arms is “deeply rooted in
this Nation’s history and tradition.” Colonial revolutionaries, the
Founders, and a host of commentators and lawmakers living during the first one
hundred years of the Republic all insisted on the fundamental nature of the
right. It has long been regarded as the “true palladium of liberty.” Colonists
relied on it to assert and to win their independence, and the victorious Union
sought to prevent a recalcitrant South from abridging it less than a century
later. The crucial role this deeply rooted right has played in our birth
and history compels us to recognize that it is indeed fundamental, that it is
necessary to the Anglo-American conception of ordered liberty that we have
inherited. We are therefore persuaded that the Due Process Clause of the
Fourteenth Amendment incorporates the Second Amendment and applies it against
the states and local governments.

In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.

Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:

But we do not measure the protection the Constitution affords a right by the
values of our own times. If contemporary desuetude sufficed to read rights out
of the Constitution, then there would be little benefit to a written statement
of them. Some may disagree with the decision of the Founders to
enshrine a given right in the Constitution. If so, then the people can
amend the document. But such amendments are not for the courts to ordain.

Quite right.

[Cross-posted at Cato's blog.]

First Aid First, Then the Guns

I am exhausted. On top of the previously mentioned side-effects from the shots, I've had to make formation at 0600 and 0530, respectively, and spend a 13-hour and an 11-hour day going through a variety of training sessions, spending about half of this time in the central Georgia heat and humidity. (Unseasonably cool, I'm told, at 90-95.)

Yesterday we went through a series of sessions on first aid (evaluating a casualty, calling for medivac, treating abdominal, chest, and head wounds) and IEDs/unexploded ordnance (including walking through a trail/road set up with trip wires, mines, booby-trapped cars, etc.). Almost all of it was useful -- and, I have to say, taught in an interesting manner -- but at a certain point it just becomes hard to absorb anything. I wonder why they didn't do some of the training Monday-Tuesday, to sop up some of the ridiculous wait times that regular (aka not "distinguished") visitors have to endure.

Today was equally educational but a lot more fun. My body was less achy -- especially the arm that took the tetanus shot --and I got a full night's (more or less) sleep, having collapsed at about 2100 last night. Just in time for gun day: Some contractors (and, of course, all military) had to "qualify" but I was just there to learn what to do if I'm ever in a situation to use a gun. (Of course, if it comes to that, we're in a whole lot of trouble.)

The CRC cadre was nice enough to let me draw an M9 (9mm pistol) and I learned how to operate and maintain it before going to the range to shoot at man-sized targets popping up out of berms in the field. And you know what? I qualified as a marksman! Watch out al Qaeda...

Then we went over to shoot M16s (assault rifles). These guns have automatic ("machine gun") capabilities, but we just shot them as semi-automatic.






I found the M-16 much more difficult -- and the qualification standards are higher. Only six contractors had to qualify but, even though I did better than several of them on the M9, I could not match them now. So I guess I'll stick to handguns.